민사관습법에 대한 헌법적 통제

Abstract

Customary laws refer to practices that have become the rule of law because of theopinio juris sive necessitatis. The customary laws as such are recognized as standardsfor trials under Article 1 of the Civil Act despite that the grounds for recognizingtheir existence are not clear unlike written laws. However, in order for the customarylaws as such to be recognized as the rule of law, they should not violate theconstitution and there are conflicts of opinions regarding which judicial authoritybetween the court and the Constitutional Court should examine whether the customarylaws as such are in violation of the constitution. The Constitutional Court focuses onthe aspect of the effect of the customary laws and argues that the customary lawshave the same effect as the law and that since the Constitutional Court shouldexamine whether the law is in violation of the constitution, the Constitutional Courtshould also examine whether the customary laws are in violation of the constitution. On the other hand, the Supreme Court focuses on the aspect of the validity of thecustomary laws and argues that for the customary laws to have the effect as the law,the opinio juris sive necessitatis of the public in general should be recognized andsince the recognition as such requires judgments on facts, the court should examinewhether the customary laws are in violation of the constitution. However, both ofthese two positions are not valid. First, when the customary laws are assumed to be standards for trials, whether ornot to apply the customary laws is entirely up to the court, which is in charge oftrials. Since the constitutionality of general laws is assumed in a sense of respecting the legislative organization under the principle of division of powers, whether or noteach law is in violation of the constitution is not required to be examined in everytrial but the judgment on whether a law is in violation of the constitution isrequested to the Constitutional Court only when the law is particularly suspected tobe in violation of the constitution and judgment is made according to the result ofexamination by the Constitutional Court. However, constitutionality cannot be assumedfor customary laws since the principle of division of powers cannot be applied tocustomary laws. Therefore, for the opinio juris sive necessitatis of the public ingeneral to be recognized as a requirement for the validity of customary laws, itshould conform to the constitution. Therefore, for customary laws to be applied asstandards for trials, whether they are in violation of the constitution should beexamined by the court. Meanwhile, there are cases where the court cannot examine whether a customarylaw is in violation of the constitution. First, such cases include cases where whethera customary law is in violation of the constitution is related to whether a separatelaw is in violation of the constitution. In such cases, the customary law cannot bejudged to be unconstitutional without examining whether the relevant law is inviolation of the constitution, and since the examination of whether a law isunconstitutional or not is entirely up to the Constitutional Court, the court cannotexamine whether the customary law is unconstitutional or not until theConstitutional Court judges that the law is unconstitutional. Second, as withcustomary laws regarding inheritance, in cases where customary laws in the pastshould be judged, it is difficult to investigate and judge whether the customary lawswere in violation of the constitution when the customary laws were established. Insuch case, the court shall wait for the judgment of the Constitutional Court andproceed with trials based on the judgment because unlike the Constitutional Court,which can examine whether old laws are in violation of the constitution based onthe current constitution, the court should examine whether customary laws are inviolation of the constitution based on the constitution at the time when thecustomary laws were established.