실체법과 절차법의 상호의존성

Abstract

A legal system consists of a large number of legal norms. Legal norms are classified into public/private law, substantive/procedural law etc. according to each criterion. Among them, the division of substantive law and procedural law has great significance for philosophy of law. Since a modern legal system consists not merely of substantive law, but also of procedural law, it is impossible to inquire into the nature of law without correct understandings of procedural law. According to the traditional understanding, substantive law or material law(Ger. materielles Recht) creates, defines, and regulates the contents of rights and duties, procedural law(Ger. Verfahrensrecht/formelles Recht) governs application or realization of substantive law. Behind the traditional understanding, there is a implicit presupposition that procedural law is ancillary to substantive law. But procedural law also constitutes material legal relations by conferring of rights or imposition of duties. So it seems dubious whether procedural law only serves to realize substantive law. While substantive law regulates ordinary domain of life outside of state intervention, procedural law regulates it’s procedure, organization. A unified system of substantive law and procedural law can protect, guarantee, and remedy rights. Substantive law and procedural law intermingled with each other are interdependent in legal systems. No procedural law without substantive law, no substantive law without procedural law.