민법의 제정 과정에 대한 입법평가

Abstract

On June 8, 2018, a public hearing was held to amend the so-called “easy-to-understand Civil Code”. The Ministry of Justice is expected to submit amendments reflecting the opinions collected through the hearing to the National Assembly in August. Apart from the amendments of expressions as such, the Ministry of Justice has already organized a Civil Code Revision Committee in February 2009 to initiate work to completely amend the Civil Code in terms of the contents. However, for most of the vast amount of contents of the draft of Civil Code amendments, which has already been disclosed in 2013, even pre-announcements of legislation have not yet been made. In this situation, although I empathize with the necessity per se of refining the difficult expressions of the Civil Code, I think that the method and timing are not appropriate. The Civil Code regulates the basic aspects of life such as personality, ownership, contracts, and family, and can be said to be ‘the basic law of society’. To fit the status of the Civil Code as such, the Civil Code of the Republic of Korea has been created through various processes for more than 10 years and on reviewing the processes, it can be seen that there have been not a few problems. If so, although the refinement of expression is also important of course, I think that the amendments of the contents of the Civil Code, which are behind the times, should be put before the refinement of expressions. Unless the draft of Civil Code amendments made through long efforts of the Civil Code Revision Committee in 2009 would be abolished, if only the expressions are amended first, the draft of Civil Code amendments of the Civil Code Revision Committee should be completely reviewed again later. However, when thought from the aspect of efficiency, the contents should be considered first rather than the expressions. In this respect, the draft of Civil Code amendments prepared by the Civil Code Revision Committee showed be reviewed a little more to amend the contents of the Civil Code first. It is desirable that when amending the contents of the Civil Code, the refined terms published in the current amendments of the Civil Code should be reflected and the amendments of the Civil Code for refinement of terms should be finalized when the amendments of the contents of the Civil Code have been completed to complete the amendments of the Civil Code. Requesting proper judgments or excellent administrative execution without legislating laws that respond to the real state of society is not reasonable from the beginning and cannot but face obstacles to the operation of the law. However, deriving unexpected logics by distorting the interpretation of the law to meet the necessity to achieve the purpose can never be said to be desirable. Even the interpretation of the law is never unlimited but is legally limited to a certain extent and even when attempts are made to correct defects in the statute law, there are legally possible limits to any distance. Therefore, what is more important at this point is the amendments of the ‘contents’ per se of the Civil Code.