Theory, Doctrine and Practice in the Civil Adjudication

Abstract

This article addresses three different dimensions in the realm of civil adjudication. These dimensions, namely legal theory, doctrine and practice, are densely woven into the process of civil litigation and judgment. Legal theory is a comprehensive value system as to what law is and what law ought to be. Legal doctrine is a systemized set of detailed legal principles based on legal precedents. Legal practice is a process of interpreting and applying legal norms to a specific case by jurists. These dimensions are closely intertwined with one another, though they serve different functions. This article analyzes these different facets from the perspective of a judge. In the first place, judges, when handling actual cases, tend to turn to a relevant legal doctrine. The doctrine may function as a framework by which the case is measured against. Generally speaking, legal doctrines have been formed and verified over a substantial period of times. This is especially true in the realm of the private law, which has been cumulatively built up since the Roman period. The formality of the legal doctrines contributes to the stabilization of the adjudication, thereby enhancing predictability and stability. Secondly, judges often rely on their hunch in drawing the conclusion of a specific case. This may give rise to the danger of arbitrary decision making. However, it is not necessarily so, for the hunch mentioned above is ordinarily linked to the sense of equity that has been formed over a myriad of professional experiences by the judge who sits for the case. This ensures that the legal doctrine is applied and developed to meet current requirements arising out of an individual case. In this regard, this practice-related dimension in the civil litigation offers fine-tuning or customizing function, in the sense that it mitigates inevitable...이 논문은 서울대학교 법학발전재단 출연 법학연구소 기금의 2008학년도 학술연구비 의 보조를 받아 작성되었음