영미법상의 선례구속의 원칙

다국어 초록 (Multilingual Abstract)

The most of outstanding characteristic of anglo american law is that it is largely judge made. That is, the bulk of common law and equity has not been enacted by Parliament, but has been developed through the centuries by the judges applying established or customary rules of law to new situations and cases. The principle behind the doctrine of Precedent is that in each case the judges apply existing principles of law. that is, they follow the example or precedent of earlier decisions.
The doctrine of precedent began to develop in the royal courts after the reign of Henry II, and in the equity courts rather later. But it did not become firmly established until the eighteenth century, though it had been widely adhered to before then. It did not take its modern form, however,
until a hierarchy of courts was established by the Judicature Acts 1873-1875.
The general rules governing the standing of judicial decisions is that a decision made by a higher court must be followed by a lower court. Thus; The House of Lords(H.L.) binds all lower courts. Until 1966, H.L. was bound by its own previous decisions. The Court of Appeal(C.A.) is bound by H.L. It also binds itself(since 1944) subject to the following exceptions; ① the
C.A.may choose either of two previous decisions which conflicts with one another. ② the C.A. must follow a H.L. decision, where that conflicts with its previous decision. ③ the C.A. may decline to follow a previous C.A. decision if that was made per incuriam. The High Court is bound by the H.L. and C.A., as well as by decisions of its own divisional courts. High court
decisions bind inferior courts.
When a judge delivers his judgment, he will normally begin by giving a resume of the facts of the case, and then go on to give his decision and the reason for his decision(ratio decidendi). It is ratio decidendi of a judgment, which creates a precedent for the future. Any general comments on law made by the way(obiter dicta) in the course of a judgment, are disregarded in considering what part of the judgment, constitutes the precedent.
If it would lead to injustice in the particular case before him, a judge may refuse to apply an earlier precedent. If the precedent is one laid down by an inferior court he overrule it. But if it was laid down by a superior court he will have to evade the precedent by distinguishing between the case he is deciding and the one in which the precedent was laid down.

목차 (Table of Contents)

• I. 문제의 소재
• II. 선례구속의 원칙의 연혁
• 1. 중세
• 2. 16세기중반부터 17세기 중반까지
• 3. 17세기 중반부터 18세기말까지
• 4. 19세기 초부터 20세기 중반까지
• 5. 20세기 중반 이후
• Ⅲ. 先例拘束의 原則의 內容.
• 1. 서
• 2. 선례구속의 원칙과 법원의 위계질서
• 3. 선례구속의 원칙과 판결이유
• 4. 선례구속의 원칙과 소송절차
• IV. 선례구속의 원칙에 대한 예외
• 1. 선례의 파기
• 2. 주의의 흠결에 의한 법의 선언
• 3. 변칙적인 선례(Precedent which represent an anomaly)
• V. 결어
• 참고문헌
• ABSTRACT

참고문헌 (Reference)

1 서희원, "영미법강의" 박영사 1994

2 최대권, "영미법" 동성사 1986

3 이상윤, "영미법" 박영사 1999

4 사법연수원, "미국민사법" 한양당 2000

5 藤倉晧一郞, "英美法判例百選, 別冊ジュリスト" 有斐閣 1996

6 望月禮二郞, "英米法(現代法律學全集 55)" 靑林書院 1985

7 A.K.R.Kiralfy, "The English Legal System" Sweet&maxwell 1984

8 Harald J.Bermam, "Talks on American law" Voice of America

9 양승두, "Reading in American Law" 법경출판사 1984

10 Rupert Cross, "Precedent in English Law" Clarendon Press 1977

11 Rene David, "Major Legal Systems in the World Today?- An Introduction to the comparative Study of Law- , 1968" The Free Press, Collier-Macmillan Limited 1968

12 W.Friedmann, "Legel Theory" Stevens&Sons Limited 1953

13 P.W.D.Redmond, "Generel Principles of English Law" Macdonald & Ewans 1981

14 Dieter Blumenwitz, "Einf?rung in das Anglo-Americanische?Recht, 1976(2.Aufl.), C.H.Beck ; M?chen"

15 Edger Bodenheimer, "An Introduction to the Anglo-American Legal System젨 - American Casebook Series - ,?Reading and Cases" West Publishing Co. 1980