민사 관습법의 성립요건으로서의 합헌성

Abstract

In Article 1 of the Civil Act, the customary law is stipulated as one of the source of law, and there are few things remaining that are recognized as customary law by civil cases. The Constitutional Court declared that the customary law is subject to the judicial review by the Constitutional Court, since the customary law has the same force as the statutory law. However, the customary law may not be deemed to have the same force as that of the statutory law because it is subordinate to primary and secondary legislations and is valid only if it is consistent with written laws such as acts and regulations. Furthermore, the Supreme Court's interpretation of rationality or constitutionality as a requisite for establishment of the customary law is valid for the following reasons: (1) Rationality and constitutionality support the opinio necessitatis. (2) The customary law is an exceptional source of law, and strict standards should be applied when recognizing its establishment. (3) Customs can not be presumed to be rational or constitutional. It is more appropriate to regard rationality and constitutionality as a requisite for establishment in 'systematic interpretation' perspective. (4) It is also persuasive that it is desirable from a legal policy perspective to regard rationality and constitutionality as a requisite for establishment. (5) This interpretation is widely adopted in other countries such as Germany and England. Therefore, it is reasonable to evaluate the constitutionality of the customary law in the ordinary court. However, it is problematic that the courts put too much emphasis on legal stability, that in fact artificially prolong the life of the customary law. It is desirable for legislators to incorporate into a statute or to abolish the controversial customary laws.