형평에 따른 법해석과 흠결의 보충
Legal Interpretation and Gap Filling According to Equity
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Equity has played various roles in the history of law. It has been always used as important grounds when the judge apply law and mitigate the punishment, and when the ruler make pardon the criminals. It has also facilitated the institutionalization of mediation and arbitration, and the establishment of court of equity in the common law countries. In this paper, I confine my study of equity to the idea and roles of equity in judicial interpretation and gap filling. For that purpose, I pick up three equity philosophers who are Aristotle, Aquinas and Hobbes. To compare the role of equity in legal interpretation and gap filling, it is very useful to distinguish legal interpretation and gap filling on the one hand, and between express gap and hidden gap on the other. Though three philosophers shared the word of equity, each of them bestowed different meaning on it. Aristotle saw it identical with legislative intent. Though Aquinas sometimes referred equity as legislative intent, he regarded it as the principles of natural law such as justice or common good. This means that the legislator is assumed to be rational. Hobbes defined equity as equal treatment, and then proposed that its meaning should be decided by the sovereign will. These thinkers have a unanimous opinion on what instances the equity could be applied. First, the judge may interpret the law under the ideal of equity, but she is not allowed to interpret it against the letter of law. Second, where there are express gaps in the law, the judge may adjudicate the case according to equity for there is no law to govern the case. Third, when the judge confronts exceptional case, the judge may decide the case according to equity, though there are the laws governing the case. They all agree that the judge should not amend law, which means the judge should interpret law within the letter of law, and that gap filling by equity does not amend law because the judge decide the exceptional case by equity. In addition, their theories of interpretation can be classified as textualism.
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