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이화여자대학교 법학연구소> 법학논집> 하트 법이론의 철학적 의의에 대한 비판적 고찰

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하트 법이론의 철학적 의의에 대한 비판적 고찰

A Critical Remark on Philosophical Significance of H. L. A. Hart"s Legal Theory

김현철 ( Hyeon Cheol Kim )
  • : 이화여자대학교 법학연구소
  • : 법학논집 11권2호
  • : 연속간행물
  • : 2007년 03월
  • : 35-48(14pages)

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The legal theory of H. L. A. Hart has been appreciated as a successful one that introduces contemporary linguistic philosophy into jurisprudence. The author points out its main features as follows: firstly Hart``s theory deploys as its methodological tool contemporary analytical philosophy, especially that of later Wittgenstein and Oxford ordinary language philosophy and Peter Winch`s descriptive hermeneutical sociology. Secondly it sheds light on unsatisfactory implication of traditional ways of defining legal terms and concepts, and highlights significance of understanding or elucidation of the terms used in jurisprudence. And thirdly it elucidates the central meaning of rules for understanding law, and recognizes the open texture of language. There have been many criticisms on each of these aspects of Hart`s theory. The author scrutinizes those criticisms, and finds that the criticisms have their own right, but that they have little implication on the validity of Hart`s theory. The author asserts that Hart`s theory should be understood as a product of a descriptive sociological enterprise rather than that of ordinary language approach. And if we are ready to understand his theory by way of principle of charity in Davidson`s and Quine`s sense, asserts the author, we can find the meaning of his theory in that way.

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UCI

I410-ECN-0102-2013-360-002506747

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  • : 사회과학분야  > 법학
  • : KCI 등재
  • : -
  • : 계간
  • : 1226-2005
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  • : 학술지
  • : 연속간행물
  • : 1996-2018
  • : 762


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1하트,풀러 논쟁 50년 회고

저자 : 장영민 ( Young Min Chang )

발행기관 : 이화여자대학교 법학연구소 간행물 : 법학논집 11권 2호 발행 연도 : 2007 페이지 : pp. 3-34 (32 pages)

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Half a century has passed since H. L. A. Hart and L. L. Fuller had a debate concerning relationship between law and morality that took place when Hart gave a Holmes Lecture at Harvard Law School in his visit 1957. This debate was an epoch-making event in the history of philosophy of law because it formed a type of controversies usually performed between natural law theorists and legal positivists. In this article the author examines the significance of the debate in the context of later development of philosophical reflections on law. Hart achieved a sophisticated form of legal positivism which later philosophers of law called soft version, and it exerted large influence on the philosophical discourses on law. Fuller proposed a way of thinking of law as purposive enterprise which inherently have morality without which orders named law could not even exist. During 50 years the basic themes of that debate have been repeatedly visited and philosophers of law developed some clues which Hart and Fuller left in various directions. For example R. Dworkin, who is a champion of anti-positivistic camp, articulated conception of integrity as legal virtue that Fuller conceived as a restraint to an excessive purposive interpretation, as a discrete legal ideal among other legal values(justice and fairness). In the midst of developing these clues which remained after Hart/Fuller debate, especially by Dworkin`s attack on legal positivism, legal positivism was splitted into two camps, inclusive and exclusive version. This split means that legal positivism is not so much a conception of law proved by linguistic or any other experience as one that has itself some presuppositions concerning values that the legal positivists usually deny that they have. In the sense that it had preoccupied important sources of future development, Hart/Fuller debate was an remarkable achievement of the mid-20 century legal philosophy, and it still has actual meaning for any positions of this field of the study.

2하트 법이론의 철학적 의의에 대한 비판적 고찰

저자 : 김현철 ( Hyeon Cheol Kim )

발행기관 : 이화여자대학교 법학연구소 간행물 : 법학논집 11권 2호 발행 연도 : 2007 페이지 : pp. 35-48 (14 pages)

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The legal theory of H. L. A. Hart has been appreciated as a successful one that introduces contemporary linguistic philosophy into jurisprudence. The author points out its main features as follows: firstly Hart``s theory deploys as its methodological tool contemporary analytical philosophy, especially that of later Wittgenstein and Oxford ordinary language philosophy and Peter Winch`s descriptive hermeneutical sociology. Secondly it sheds light on unsatisfactory implication of traditional ways of defining legal terms and concepts, and highlights significance of understanding or elucidation of the terms used in jurisprudence. And thirdly it elucidates the central meaning of rules for understanding law, and recognizes the open texture of language. There have been many criticisms on each of these aspects of Hart`s theory. The author scrutinizes those criticisms, and finds that the criticisms have their own right, but that they have little implication on the validity of Hart`s theory. The author asserts that Hart`s theory should be understood as a product of a descriptive sociological enterprise rather than that of ordinary language approach. And if we are ready to understand his theory by way of principle of charity in Davidson`s and Quine`s sense, asserts the author, we can find the meaning of his theory in that way.

3하트(H.L.A. Hart)와 라즈(Joseph Raz)의 법철학

저자 : 박준석 ( Joon Seok Park )

발행기관 : 이화여자대학교 법학연구소 간행물 : 법학논집 11권 2호 발행 연도 : 2007 페이지 : pp. 49-61 (13 pages)

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This paper aims at listening to various sounds which have come from the camp of analytical jurists, through sketching out the philosophies of Hart and Raz, his student and his fellow scholar. The summary of this sketch is as follows. First, the general theory of practical reason has been pursued by Raz independently of Hart``s methodology ("ordinary language analysis"). Hart have had a minor, if any, influence on Raz in this matter. Second, Raz has picked up the baton from the core of Hart``s jurisprudence. Raz has been one of the most ardent defenders of anti-reductivism, the conception of law as a system of rules and the conception of authority as an essential feature of law. Third, Raz challenges some theories of Hart such as the political theory of "fair play" thesis and the jurisprudence of inclusive legal positivism. It has been often said that Raz continues Hart``s criticism of J. Bentham and J. Austin and his debate with Lon Fuller and Ronald Dworkin. But, as this paper shows, there are not a few differences between the voices of Hart and Raz.

4입법과정에의 국민참여에 관한 연구

저자 : 최희경 ( Hee Kyung Choi )

발행기관 : 이화여자대학교 법학연구소 간행물 : 법학논집 11권 2호 발행 연도 : 2007 페이지 : pp. 63-81 (19 pages)

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The legislative process shall reflect not only the unilateral procedure of the simple national policy or decision making, but also the intention of the citizens sufficiently. As seeing the overall legislative process, the most effective method for participation of the citizens is participation in the stage of drafting and preparation of a legislative bill and the review is the next. Opinions and active demands of the citizens are to be conveyed to the parliament members and the civil servant forming the policy then. The law enacted and revised with sufficient intention of the citizens can secure effectiveness in its execution. The approved legislation would gain the legitimacy and also the effectiveness for execution through increasement of the accessibility of the citizens to the legislative process. On the other hand, even though the system to increase the participation and accessibility of citizens in the legislative process is guaranteed, setting a barrier for access to the legislative information or make it impossible are also an actual cease of the citizens`` participation in legislation. This article is done to find a method for the citizens to participate in legislative process based on the legislative petition, the legislative announcement system, and the lobby system. Especially, with reference to the legislative announcement system, separate problem for the legislative announcement system to the government legislative proposal and the parliament members`` legislative draft are noted and the measure for improvement is discussed. The necessity of legislation and its effective regulation is proposed after reviewing the positive and negative effects if the Lobbying Disclosures Act is introduced. The method for securing the accessibility of the citizens to the legislative information with the concern of the meeting at the parliament and its minutes of meeting and the parliament broadcasting system of the parliament in Korea is also studied. Especially, formation of the citizens`` political intention can be made through review of transparency during the meeting can be realized through its opening to public. Furthermore, it can increase criticism and surveillance for the parliament activity. The practical method can be proposed after reviewing openness of the subcommittee and the current relate system.

5미국(美國) 불법행위법(不法行爲法)에서의 순수경제적(純粹經濟的) 손해(損害)

저자 : 정채윤 ( Tae Yun Jeong ) , 김정민 ( Jeong Min Kim )

발행기관 : 이화여자대학교 법학연구소 간행물 : 법학논집 11권 2호 발행 연도 : 2007 페이지 : pp. 83-118 (36 pages)

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The economic loss rule states that a plaintiff cannot recover for negligence that causes pure economic loss. The rule, which has been significant in products liability ever since the 1960s, has become even more significant in recent years, as courts have rejected possible exceptions to the rule. During recent years, the rule has also been invoked so as to bar negligence claims by home buyers against home builders. In these cases involving defective products and defective homes, courts have properly resorted to the rule in order to recognize the primacy of contract(and warranty). In other cases in which the rule has been applied, its rationale relates to a concern for protecting against an excessively open-ended liability. In such cases, American jurisdictions now apply the rule much of the time, but not all the time. In many cases in which the rule might be thought to apply, courts seem unaware of the rule``s existence. Even so, in certain cases courts implicitly acknowledge the rule and its rationales by denying liability under the heading of ``proximate cause`` (hence healthcare providers have been denied claims against tobacco companies). In other cases in which the negligence of the defendant brings about the plaintiff``s economic loss, neither the concern for contract nor the concern for an excessive liability seems germane. In such cases, in essence courts ignore the rule and decide the cases based on an assessment of the particular policy considerations that the cases raise. Overall, then, there are at least four senses in which the economic loss rule can be called a ``supposed`` rule. First, it is a ``supposed`` rule in the sense that at least a limited number of leading modern opinions have professed to reject it. Second, in the sense that it breaks down into two distinct rules - one motivated by a concern for contract, the other motivated by a quite different concern; these two rules apply to quite different categories of cases. Third, in the sense that courts frequently fail explicitly to acknowledge the rule, even when they may be implicitly applying it. Finally, in the sense that courts ignore the rule altogether in many cases in which the various concerns that underlie the rule seem not to be pertinent. What all of this makes clear is that cases involving negligence and economic loss are multifarious in terms of the issues and problems they raise. Accordingly, no single rule can even begin to determine how all such cases should be decided.

6사비니의 물권계약론에 관한 학설사적 고찰

저자 : 서을오 ( Eu Lo Seo )

발행기관 : 이화여자대학교 법학연구소 간행물 : 법학논집 11권 2호 발행 연도 : 2007 페이지 : pp. 119-138 (20 pages)

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Im Gegensatz zu unserer Vorstellung weist die romische Ubereignung durch traditio, modern gesehen, sowohl kausale als auch abstrakte Elemente auf. Zum ersten Mal entwarf Friedrich Carl von Savigny eine einheitliche und systematische Losung in dieser Frage. Dabei glaubte er fest daran, daß seine Lehre nicht nur systematischer Folgerichtigkeit, sondern auch den Texten des klassischen romischen Rechts entsprach. Den romischen Juristen waren aber solche systematischen Ansatzen sowohl kausale als auch abstrakte fremd. Die endgultige Entscheidung Savignys fur die abstrakte Losung bedeutete jedoch gleichzeitig die Geburt einer Gegenlosung, namlich der Lehre von der kausalen Ubereignung. Der Schwerpunkt der Kritik war, daß die savignysche Lehre mit den romischen Quellen unvereinbar sei. Auch die Gegner der savignyschen Lehre konnten sich aber von dem savignyschen Systemgedanken nicht ganz befreien. Sie versuchten weiter, die romischen Quellen lediglich aus der Perspektive der kausalen Ubereignung auszulegen. Der Streit uber den Charakter der traditio in der ersten Halfte des 20. Jahrhunderts war grundsatzlich von dieser systematischen Perspektive gepragt und zum Scheitern verurteilt.

7예금이체에 의한 컴퓨터사용 사기죄에 있어 친족상도례의 적용

저자 : 강동범 ( Dong Beom Kang )

발행기관 : 이화여자대학교 법학연구소 간행물 : 법학논집 11권 2호 발행 연도 : 2007 페이지 : pp. 139-156 (18 pages)

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Fuhrt die Nutzung von rechtswidrig erlangten fremden Codenummern beim Bankautomaten, etwa mittels echter oder gefalschter EC Karte, dazu, daß dem Tater oder dem Dritten vom fremden Sparkonto Buchgeld abgebucht wird, dann liegt ein Computerbetrug vor. Entscheidend ist die Frage, wer der Verletzte ist, weil Haus- und Familiendiebstahl (StGB 328) ensprechende Anwendung auch fur Computerbetrug finden (StGB 354). Der Verletzte eines Computerbetrugs ist nicht der EDV Betreiber, sondern der Vermogensgeschadigte, weil der Tatbestand des Computerbetrugs sowie des Betrugs schutzt den Vermogenswert. Im Fall eines Computerbetrugs durch die Abbuchung vom fremden Konto fragt sich, ob der Vermogensgeschadigte das Kreditinstitut oder der Kontoinhaber ist, weil der Spareinlagevertrag ein unregelmaßiger Verwahrungsvertrag ist, fur den die Vorschriften uber das Darlehen entsprechend gelten (BGB 702). In Deutschland geht die h. M. davon aus, daß der Vermogensgeschadigte der Kontoinhaber ist. Denn der Computer bleibt ein Hilfsmittel des Systembetreibers und das Kreditinstitut steht zum Kontoinhaber in einem Naheverhaltnis. In Japan findet dagegen die h. M., daß der Vermogensgeschadigte das Kreditinstitut ist, weil dieses die Gefahr tragt, das abgebuchte Buchgeld doppelt auszugeben. Der koreanische hochste Gerichtshof hat die Meinung vertreten, daß der Vermogensgeschadigte das Kreditinstitut ist, weil dieses der Eigentumer des Spargeldes wegen des unregelmaßigen Verwahrungsvertrags ist. Ich schliesse mich der Meinung, das Kreditinstitut sei der Vermogensgeschadigte, aus folgenden Grunden an: ① Das Eigentum und der Besitz des Buchgeldes gehoren zum Kreditinstitut. ② Trotz der Legitimationswirkung (BGB 470) muss das Kreditinstitut die Gefahr tragen, das abgebuchte Buchgeld doppelt auszugeben. ③ Dieser Fall ist in Anlehnung an die Abbuchung vom fremden Sparkonto mittels gefalschter EC Karte zu behandeln. ④ Ein Geschadigte im strafrechtlichen Sinne ist nicht immer ein Geschadigter im zivilrechtlichen Sinne.

8한-미FTA 의약품 분야 협상의 쟁점 및 전망

저자 : 최원목 ( Won Mog Choi )

발행기관 : 이화여자대학교 법학연구소 간행물 : 법학논집 11권 2호 발행 연도 : 2007 페이지 : pp. 157-170 (14 pages)

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In KORUS FTA negotiations, the following issues may be raised, among others:  - whether to encourage, and how to encourage, research and development of innovation and IPR protection of pharmaceuticals - whether to apply pharmacoeconomic evaluation to generic drugs - how to recognize the value of the innovative pharmaceuticals in the amount of reimbursement - whether to permit manufacturers to apply for an increased amount of reimbursement after a decision on a reimbursement amount is made - whether to ensure that the reimbursement amounts are inflation-adjusted - how to guarantee transparency of DERP: publish in advance any measures provide interested persons opportunities to comment complete consideration of approvals within a specified time disclose procedural rules, methodologies, principles, and criteria make available an independent review body to review determinations - whether to permit a pharmaceutical manufacturer to disseminate to health professionals and consumers through the manufacturer``s Internet site and on other linked sites information regarding its products - How to encourage ethical business practices  - Mutual Recognition Agreement on the Good Laboratory Practice (GLP) and Good Manufacturing Practice (GMP) inspection of pharmaceuticals within specified period of time - Mutual Recognition of Marketing approval of generic drugs  - Development of regulations related to the approval of biogenerics within specified period of time  - Whether to establish a technical committee or working group and its scope of authority  - scope of guaranteeing data exclusivity - whether to permit linkage between patent and marketing approval - whether to permit use of patented product to generate information necessary to support an application for marketing approval (Bolar provision) - whether to allow adjustment of patent term to compensate unreasonable delay in marketing approval procedure - scope of compulsory licensing For a successful conclusion of negotiations, a package deal among the above core issues is necessary. Given the political sensitivity and high priority of DERP to Korea and its national interest, Korea must make certain concessions in IPR issues and Committee issues in order to accomplish its policy aims regarding DERP. Also, it must be considered that enhance protection of IPR may give certain incentives of R&D for Korean drug manufacturers who need a long-term business strategy of development. Although MRA and Biogenerics are ambitious proposals by Korea, they are susceptible to an unbalance-of-benefit claim by the United States because those proposals are focused on trade in generic (not original) drugs. In order to avoid a situation where drug issues are compelled to be traded with other unsolved controversial issues in other sectors at the last phase of negotiations, both sides must make sincere efforts to reach an early agreement through practical gives-and-takes.

9전자사회와 IT분쟁조정법제

저자 : 최승원 ( Seung Won Choi )

발행기관 : 이화여자대학교 법학연구소 간행물 : 법학논집 11권 2호 발행 연도 : 2007 페이지 : pp. 171-186 (16 pages)

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The information society that newly emerges as a result of knowledge and information revolution is based in cyber space, the integrated on-offline space. In the society, ADR(Alternative Dispute Resolution) is being increasingly needed to meet demand for fast dispute resolution. On the other hand, an IT related dispute is often characterized by crossing regions or borders. Especially in cross-border disputes, some obstacles to jurisdiction, governing law and litigation are raising the need for a new dispute resolution mechanism. ODR(Online Dispute Resolution), one of ADR, which exists in cyber space, is based on a resolution structure that is convenient and equally accessible to both the claimant and the respondent. It is emerging as an optimal alternative that is cost effective and overcomes the limitations of jurisdiction and governing law. In Korea, dispute mediation system is defined in IT related individual acts such as Electronic Transaction Basic Act , Act on Protection of Information and Promotion of Information Communication Network , Computer Program protection Act and Act on Internet Address Resource . Through the analysis of these legislations on IT dispute mediation, the study examined the problems and sought improvement of policy and legislation in the following four areas: dispute resolution means, dispute resolution procedures, dispute resolution institution, and dispute resolution legislation. ADR needs to be more vigorously practiced. To this end, ADR should secure speed, specialty and fairness to strengthen the trust of dispute parties in ADR and diversify its types to allow the parties to select the most suitable means for each IT related dispute, and lower its costs. In addition, as IT related disputes occur in the area of overlapping regulation of T-Code and L-Code and are effectively resolved only on the professional and technical grounds, it is worth considering unified regulation by establishing the tentatively named "IT Dispute Mediation Act" The establishment of uniform law and organization on IT dispute mediation not only closes loopholes in the current IT dispute mediation regulations in individual acts but also becomes the base for aggressive and leading participation in the agenda of international regulations of global IT dispute which will get prominent in new patterns in the future.

10남녀차별금지법(1999 2005)의 여성정책적 의미

저자 : 김선욱 ( Sun Uk Kim )

발행기관 : 이화여자대학교 법학연구소 간행물 : 법학논집 11권 2호 발행 연도 : 2007 페이지 : pp. 187-207 (21 pages)

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Gender Discrimination Prevention and Relief Act(hereinafter referred to as the "the Act") was legislated in February 8, 1999, in accordance with the principle of gender equality stated in the Constitution, to prevent gender discrimination and to realize gender equality in every sector of society by protecting the interests and enforcing the rights of victims. The Act, as law specifying constitutional equal right`s mandate, complete Women`s Development Act to promote gender equality in all the areas by stipulating fundamental rules with regard to the obligation of the State etc. and has the significance as legislative measure to perform CEDAW`s national obligation. It was also notable that the Presidential Commission on Women(hereinafter referred to as the "the Commission") could exercise quasi-judicial function by the Act. So, in this article I analyzed results of efforts redressing gender discrimination performed by the Commission and examined women-policy`s significance of the Act. While Ministry of Gender Equality was reorganized to Ministry of Gender Equality and Family, the Act was merged with National Human Rights Commission. Therefore, this Act was repealed in April, 2005 two years ago and from June 23, 2005, the National Human Rights Commission has begun to deal with concerning gender discrimination. Thereupon the National Human Rights Commission passed the recommendation proposal on "Anti-Discrimination Law" on July 24, 2006 and advised the Prime Minister to pursue its enactment. Recently, the Ministry of Justice noticed `the bill on Anti-Discrimination Law`. Although the Act was repealed, the enactment of Anti-Discrimination Law prohibiting about not only gender discrimination but also all discrimination can be turning point. I hope to make diverse and substantive discrimination-remedy policy and to practice Anti-Discrimination Law within the consciousness in our lives.

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