관습법의 현대적 의미

Abstract

Modern Views of Customary Law

Se-Hyuk Oh

The highest courts in Korea dealt with very important cases of customary law in recent years, so customary law became the center of public interests. Customary law as original form of law holds a important position in a legal system. Legal scholars take customary law seriously because it is related to something fundamental in law. In particular, legal philosophers deal with issues about customary law, for example its nature, requirements/standards of its existence or disappearance, its validity traditionally. Customary laws come into existence spontaneously in a certain legal community. Customs shift into customary laws by acquisition of opinio necessitatis of members in the legal community. While customs are facts, customary laws are norms that have binding force to the members of the legal community. From the era of codification till now, however, the portion of customary laws in legal systems diminished in proportion to the strengthening of the government monopoly of legislation. Is customary law degraded into a useless thing in modern legal systems nowadays? Not. Customary laws make up for the weak point of statutes that remain fixed as soon as established. However full of statutes the whole world is, there are gaps in legal systems. And changes of the world will make gaps deeper and larger. Customary laws grow in gaps and fill up gaps. It is foolish to believe that customary laws can be removed from the law's empire.