판례의 법창조적 기능과 그 한계 -우리나라의 민사 판례를 중심으로- = Creative Function and the Limitation of Judicial Precedents -Focused on Korean Civil Cases-

다국어 초록 (Multilingual Abstract)

When there are no rules are provided for the particular cases in the law, or law lapses into silence at that time, it can be defined as there are deficiencies in the law. There could be three grounds for the causes of the deficiencies of statute law; (1) Leaving the rules not be provided intentionally up to the constructionists. (2) Unpredicted situations arose during the legislation step. (3) The incompletion of legislation skills. These deficiencies of law can be complemented by Judicial Precedents. This is the creative function of Judicial Precedents. The concrete types can be listed as follows. 1. Founding the general legal principles without substantive enactments. 2. Law creation can be appropriate for the social reality. 3. Giving shape into the abstract legal rules. 4. The effective modification of legal provisions. 5. The supplementation of applications by inference. 6. The addition of requirements besides substantive enactments. However, the creative function of precedents cannot be approved without restrictions. At least it not reasonable that the precedents` requirements be added randomly besides the regulations provided by civil code. Moreover, if the contents are imitation of precedents of Japan, they are must be avoided with more attention.