법관법의 법원성에 대한 유형적 탐구—독일 학계의 논의를 중심으로—

Abstract

This study is intended to review a range of arguments on whether the judge-made law is a source of law from the perspective of the theories that recognize the legal status of the judge-made law as a source of law or partially recognize the legal status of the judge-made law as a source of law(i.e. a theory of the presumptive or subsidiary source of law) and the theories that deny the legal status of the judge-made law as a source of law. For the theories that recognize the legal status of the judge-made law as a source of law, the author will address the views of Bernd Rüthers. For the theories that partially recognize the legal status of the judge-made law as a source of law, the author will address the views of Martin Kriele and Franz Bydlinski. For the theories that deny the legal status of the judge-made law as a source of law, the author will address the views of Karl Larenz and Klaus Röhl. Based on an analysis of a range of arguments on the judge-made law, the controversial points and implications to be reflected in the approach to the judge-made law can be obtained and these will serve as a foundation for my comprehensive study concerning the legal status of the judge-made law as a source of law, the legal binding of precedents and the retroactive effect of case law change and so on. However, as the space for the author is limited, in this study the author will focus on extracting the controversial points and implications to be considered in the study of the judge-made law based on an analysis of a range of theoretical types of the judge-made law and will put forth his opinions comprehensively in future studies.