입법자의 의사와 법해석 ― 입법연혁을 활용한 판례 분석을 중심으로 ―

Abstract

There is a debate between subjective and objective interpretations of the goal of the law. Subjective interpretations put forward the principle of separation of powers and the essential difference between legislation and judicial affairs. Subjective interpretations emphasizes the constraints on the law of judges. It insists that the task of the judiciary is to discover the meaning of the law in accordance with the will of the legislator, and beyond that, it cannot replace the role of the legislator. On the other hand, objective interpretation emphasizes the functional aspects of recognizing the laws to be applied in practice and the formation of laws by courts. It places concrete validity of legal application in a more advantageous position and makes a positive assessment of the legal formations of judges. Today, there is a general consensus that one rather accepts the other side's position based on either side's position than take the view of sticking to either theory. This goal of law interpretation is often confused with the criteria of law interpretation. It is said that there are literary, systematic, historical and objective interpretations as the criteria of law interpretation. In this article, I focus on the method of historical interpretation. I researched the specific methods of detecting the intention of the legislator and its effectiveness and premises. At first, I took a look at the discussions on legislative history in the United States and the Supreme Court's ruling that made a legal interpretation based on the legislative history and then, considered the different forms of legislative history and each reliability or value. I looked into the case of our country detecting the actual intention of the legislator and using it to interpret the law to find out to what extent our court is considering the intentions of the legislator. In my view, our Supreme Court tends to pursue specific validity in an objective way of interpretation and use historical interpretation as a supplementary basis to support it. It is rare to detect the actual intention of a legislator using various types of legislative data except for the letter of legal proposal. The reason why this legislative history is rarely used in our country as a source of legal interpretation is that the court that has an opinion closer to objective interpretation is negative about using the legislative history as source of legal interpretation. For another reasons, there is not enough debate in the legislative process, and the data is not properly organized and managed. In order to be able to take advantage of the historical method of interpretation, discussions on the bill must be actively and transparently made in the legislative process and legislative data recorded on it must be properly kept, organized and provided.