정치와 법 ― 법원의 법률해석 기능에 대한 실증적 고찰에 관하여 ―

Abstract

The prima-facie understanding of statutory interpretation is that the court has the final word about the interpretation of law on political matters, in that the court has the sole and the final right of interpreting the statutes which are enacted as a result of battles and compromises among various political agencies. However, when we review this understanding in the aspect of positive political theory, we soon realize that this understanding of the process of statutory interpretation is false. Each and every statutory interpretation provided by the court in political cases gives rise to certain political reactions. The political actors of the nation (i.e., the National Assembly and the President) may exert their will and the power to change any disadvantageous statutory interpretation of the court to their advantage. Sometimes they try to change the view of the court by changing the composition of the court (so called ‘the Court-packing’), and sometimes they try to influence the view of the court by changing the rules on the budgets and the formation of the courts for which the court itself can not make the rules. This trend of political reaction on the statutory interpretation has become more distinct as the court became more involved in deciding on political matters and influencing the politics after World War II. We may refer to this trend as “the Politicizing of the Law” and “the Judicializing of the Politics”. In this paper, I have attempted to show and analyze the real process of the statutory interpretation by introducing the positive political theory of John Ferejohn. I believe that such analysis will provide a useful guidance in understanding the political situation of South Korea under the current President Noh moo-hyun administration. Part I emphasizes the importance of the positive understanding of politics and statutory interpretation by presenting several examples of political matters in both the U. S. and South Korea. Part II explains the meaning of positive political theory and its usefulness on the study of statutory interpretation. Part III explores the new aspect of the theory of the separation of powers, pointing out that nowadays the power of legislation is not confined to the hall of the National Assembly. Today, legislation right does not entirely belong to the National Assembly but it is shared with the government and the court. In particular, the court engages in the law-making process by declaring that some statutes made by the National Assembly are in violation of the Constitution and thereby nullifying these statutes, or by supplementing the current statutes and making new rules governing political matters. In this regard, it is necessary to change our traditional understanding of the principle of the separation of the powers. Part IV shows how the major change in the constituents of the political arena affects the statutory interpretation of the court by presenting some examples of the U.S. and South Korea. Parts V to X analyze the process of the statutory interpretation by creating a simple model on the way the political agencies act under certain restrictions. The purpose of such analysis is to show that the statutory interpretation of the court will inevitably obtain political meaning and will receive feedback from the political arena. In conclusion, my opinion is that it is false and dangerous to believe that the court has the final word in statutory interpretation and can resolve every political dispute through court trial. The court's decision on political cases almost certainly causes some reactions from the political arena, and judges are well aware of such consequences. Without this positive understanding of the process of statutory interpretation, any proposition and description of statutory interpretation is most likely to be false and misleading.