미국 입법학의 법령해석의 이론들


Theories of Statutory Interpretation in the US legislation Studies


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In US society of Legislation Studies, theories of Statutory Interpretation has developed into three basic approaches. They are intentionalist theories, textualist theories, and dynamic theories.
According to intentionalist theories, statutory meaning should be governed by legislative intent. They emphasize legislative intent as the object of statutory interpretation. A important reason why statutes ought to be obeyed is that they are directives from the legislature, representative organ of the People. Therefore Intentionalist theories are well harmonized with our democracy system. But they have a several weak points. First there are problems of aggregation : By what source we reach the goal, legislative intent. Second, there are problems of attribution : Whose intention is the most pivotal legislator's ? Also, Intentionalist theories are subject to the problem of changed circumstances. Reader of Text is too far from the Writer, legislators.
According to textualist theories, statutory meaning should be governed by textual meaning. They suggest that interpreters should pay heed to the plain meaning of the statutory text. They say that the statutory text is the best evidence of legislative intent. Especially, New Textualists insist that judges should not consult the legislative history of a statute. They say legislative history like that is not the law, according to the Article I Section 7 of the Constitution. Textualist theories are well harmonized with our rule of law principle. But they have a several weak points. First they misunderstand the meaning of separation of power. The Framers of US constitution believe that courts respond to unjust and partial law to protect the citizen's rights in the severity of the law. Secondly textualist theories can sever the connection between the rule of law and democracy unsuspectedly to arrive at law without mind or spirit.
According to dynamic theories, statutory meaning should be governed by a more dynamic, pragmatic assessment of institutional, textual, and contextual factors. Best answer theories, pragmatic theory, and critical theory are consist of dynamic theories. Especially Critical theory is typically deconstructive but can be reconstructive as well.


Ⅰ. 서론
 Ⅱ. 법령해석의 이론들
  1. 법령해석론의 소재가 된 대표사례들
  2. 의도주의 이론들(Intentionalist Theories)
  3. 텍스트주의 이론(Textualist Theories)
  4. 동태적 이론들(Dynamic Theories)
 Ⅲ. 결어


  • 정철 Jung Chul. 국민대학교 법과대학 교수


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