대법원 형사판결과 법률구속성원칙

Abstract

The Supreme Court of Korea has adopted a methodology of rigorous grammatical interpretation in order to satisfy the Constitutional requirement of law-binding in judgement of criminal case. However, the principle of law-binding does not mean the so-called ‘legal state.’ For this reason, the national justice system of the law recognizes the supplements of the judiciary. This article observes criminal judgement that the Supreme Court of Korea is suspected of going beyond just a supplementary role to ‘judicial justice’. As a result of analyzing the criminal judgment, the Supreme Court found that the following folly is used in using deductive syllogism. First, Producing of non-existent premise. Second, Arbitrary manipulating or processing of a premise. Third, excessive normative interpretation of a premise. Fourth, Formulating of general clause. Therefore, this article emphasizes the task of criminal law discipline which should prevent the judicial branch from walking the way of judicial jurisdiction by critically examining the various act of manipulation of Supreme Court which is carried out in the name of providing the legal basis for the preconceived conclusion in the deduction process.