독일통일 과정에서의 민사법 · 상사법 통합과 그 시사점

Abstract

Although it may not be possible to predict when the unification of South and North Korea will take place, it is a task that must be achieved. Successful unification will require effective integration of two states’ legal systems to establish the foundation of social structure. Yet, as prolonged division has resulted in vast difference between the two Koreas in many aspects including laws, it can be argued that thorough preparation is imperative for successful integration of two legal systems. This study aims to explore effective plans for integrating legal systems of South and North Korea by examining the precedent of judicial integration that took place during the German unification. More specifically, this study focuses on the integration of two German states’ civil law and commercial law in order to consider its implications for South Korea in preparation of unification. Moreover, structural analysis of integration process of civil law as well as Civil Procedural Law, Bankruptcy Law and Commercial Law was conducted. Korea’s unification must take place according to the principles of liberal democracy indicated within the Constitution of Republic of Korea. Hence, the integration model of German judicial system may provide specific suggestions for South Korea as East Germany adopted West Germany’s law in principle while it also acknowledged exceptional circumstances and allowed transient continuity of East Germany’s law during the unification process. Furthermore, since South Korea’s legal system is modeled after Germany’s and North Korea has the legal system founded upon socialist ideology as East Germany did, circumstantial application of law per individual legal properties demonstrated by Germany can provide significant implications for South Korea. Through such precedent study, South Korea can develop an integration model that suits its distinctive situation and needs, hence minimize confusion in judicial system that may occur during the unification. As a result, South Korea will be in more prepared position for unification than Germany was in. This paper concludes by emphasizing the importance of thorough preparation at the national level for this process.