「民法」 제정에서 민법학자들의 역할 - 民事法硏究會와 『民法案意見書』의 기여 -

Abstract

All of the members of the 1948 Civil Law Drafting Commission were legal practitioners. Such a composition of the Civil Law Drafting Commission was due to the educational environment during the era of Japanese occupation. Under the Japanese rule it was inevitable for those who received an education in law to pursue a career in legal practice. The participation of legal scholars in the drafting process of the Korean Civil Law began in 1956 with the establishment of the Civil Law Research Group. After studying the Draft Civil Law and the Draft Amendment of the Sub-commission on the review of the Draft Civil Law, the Civil Law Research Group published the 'Opinion on the Draft Civil Law', thereby proposing legal thought on important aspects of the Draft Civil Law. As a result some of the recommendations were presented at the Assembly plenary session, through which the drafting process was influenced in important ways. The history of the adoption of the Korean Civil Law is often associated with negative features. The modernization of the law forced by the Japanese Imperial rule, the drafting of the Civil Law under the strong influence of the Japanese Civil Law and Japanese civil doctrine, the lack of preparatory materials reflecting the circumstances under which the Civil Law was adopted, the criticism directed at the Civil Law for its hasty enactment due to the shortage of time. It is true that there were some unfavorable factors inherent in the adoption process of the Korean Civil Law. However such an assessment is only abstract or general, with practically very few studies that offer an accurate evaluation based on concrete findings. Under close examination the Civil Law reveals its multifaceted nature, ranging from the uncritical reception of foreign (especially German) legal systems to refined and progressive legal norms. Very often the reasons for such differing features can be found in the process of adopting the Civil Law. Without fully understanding the enactment process, and precisely being aware of the past, it is impossible to be confident about moving forward. Given the lack of preparatory materials on the adoption of the Civil Law the 'Opinion on the Draft Civil Law' of the Civil Law Research Group is an invaluable scholarly heritage. The present article examines the deeds of the Civil Law Research Group based on the 'Opinion on the Draft Civil Law' in respect of the enactment of the Civil Law. The 'Opinion on the Draft Civil Law' shows the achievement of the legal academia during the decade after the restoration of Korea's independence when educational and academic sovereignty were regained. The 168 recommendations offered in the 'Opinion on the Draft Civil Law' present invaluable implications for legal scholars studying civil law today. Some are mistakes which we should avoid in the future, others are proposals that should be taken seriously and used as guidelines for interpreting the law and making amendments.