대법원 판결에 나타난 ‘전체 법질서’ 개념의 의미와 성격

Abstract

In the concept of a whole system of law, a subjectivity is always concealed, who takes a part in it. A whole system of law does not stay in a concept of generalization. A whole system of law expresses a more independent conception than the summation of total legal norms. That is, a whole system of law works as reconstruction of a norm inside of it. Depending on how an interpreter of a legal standard understands a whole system of law, the conception of the standard will be different. The concept of a whole system of law conveys, rather than rhetoric, a sharp meaning into itself. Most of all, a whole system of law appears as a form of unity, consistency and sameness between legal norms. However, the meanings of a legal word written in different areas of law, looks often inconsistent. Often, a norm of lower level is not totally determined by a norm of higher level but contrarily changes it. Moreover, a whole system of law represents a conceptual form of individualized universality. Especially, when a defined formality leads to an unreasonable consequence, a universal consideration is introduced. No matter how important is a individual right, on a certain circumstance a universal interest of society prevails. The conception of universality does not remain in a common interest of society but appear through fundamental rights. Recently, Korean Supreme Court supported workers’ collective right to consent to a revised rule of labor, rather than simply approved the validity of the rule based on the standard of reasonableness. In that case, Korean Supreme Court took the principle of trust and good faith differently than before. Also, Korean Supreme Court stroke down many social norms that is the main source of Korean Family Law especially about the family membership, the right to family religious service, the right of graveyard, on the basis of the constitutional right to equality. Moreover, it has been decided that the fundamental rights to personal autonomy, privacy and human dignity that has changed the social norm about homosexuality narrow down the scope of criminal punishment against homosexual activities between military members. All these cases have been decided based on the principle of the whole system of laws, which is never to be definable. In conclusion, a conception of a whole system of law surpass a simple objective appearance. That is, a judge has no choice but to understand a conception of a whole of law based on a preference of a particular right or interest. Therefore, a whole system of law has a face of a particular system of law. This is the reason why a whole system of law that is mainly about universality should be always placed on an analytical criticism.