민법 제1조와 不文民法의 法源性

Abstract

Civil code article 1 means that in terms of judgement, the judge first applies the statutory law, which is the existence form of law, and if no statutory law exists, the judge builds the law proposition through the unwritten civil law:Customary law·Nature of things as the law’s basis of recognition to judge. Nature of things forms the unwritten civil law through the developmental serial relation with common law·precedents. Nowadays it is adequate to entrust representative body such as the city council or the national assembly for debate and vote than the judge declares Customary law through the judgement,therefore Customary law’s importance as the source of law isn’t what it used to be, and now it should be explained not the existence form of law but the law’s basis of recognition. The Nature of things indicates the nature of legally proposed things that is shown in the judgement, the logic as the source of law in the civil code article 1 becomes the source of the positive law about the precedent’s source of law. Among those precedents, the supreme court’s precedents, which clearly show the law proposition that will be continuously applied to the same issue, pass over the general status, and acquire the status of the case law. The supreme court precedents, which are court organization act article 7 clause 1 condition no.3 ’opinion about interpretation application of rule or constitution·law·order that are previously judged in the supreme court’ & the exemption law about trial on an appeal article 4 clause 1condition no.3 ‘when the original verdict about law·order·rule or measure is interpreted differently than the supreme court precedent’, mean that.