‘사회질서’라는 불확정 개념에 대한 법률해석

Abstract

In this article, I looked at several Korean Courts’Cases that interpreted the‘Social order Conception’ in various fields of law. I analyzed how‘Social order Conception' was interpreted in the fields of Civil law, Corporate tax law, and Criminal law. The relevance was also investigated. Even in different areas of law, interpretations in each area of ​​law must be harmonized. In particular, the interpretation of the Amorphous Concept can have normative power only when it can give predictability to the offender. Therefore, in a judgment to change the interpretation of the Amorphous Concept the rationale underlying the decision should be provided abundantly. In interpreting the‘Social order Conception', precedents consider the Legal emotion and the Socially Accepted Idea as the standard. The Legal emotion and the Socially Accepted Idea can be derived from existing precedents or legislative circumstances. On the other hand, there are cases where legislation cannot keep up with social phenomena. In this case, the judge actively resolves the legal dispute through the interpretation of the law. In particular, the responsibility is often given to judges in understanding the accelerating social and scientific development in the era of the 4th industrial revolution and related disputes. The accumulated interpretation of the law by judges is sometimes linked to legislation. A persuasive good judgment cannot be drawn only by the ability of individual judges. A good judgment is possible when lawyers and prosecutors involved in the trial process provide in-depth and sufficient arguments for facts and legal arguments and various issues. For a persuasive interpretation of the Amorphous Concept, a democratic and participatory trial can be the answer.