混合法系(Mixed Legal System)와 남아공법(South African Law)의 발전

• 영문명: The Legal Historical Study of the South African Law as Mixed Legal Systems
• 발행기관: 전남대학교 법학연구소
• 저자명: 민경재(MIN, Kyoungjae)
• 간행물 정보: 『법학논총』제29권 제1호, 41~79쪽, 전체 39쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2009.06.30

영문 초록

We are not familiar with and are biased against the South Africa and the African continent. Nowadays South Africa, however, has been introduced as mixed legal systems or mixed jurisdictions which generally means that two major legal systems, civil law and English Common law, were converged on a jurisdiction. But there have been still few papers dealing with mixed legal systems and South African law in South Korea, therefore this paper defines some characters of mixed legal systems briefly and next deals with various of discussion about Vernon Parmer‘s criteria in Chapter Ⅱ. Next in two chapters, I introduce the South African law by using the legal historical methodology. The history of South African law before an interim constitution is reviewed first and the origin and development of Roman-Dutch law is looked at in perspective. The concept of “Roman-Dutch law” has many meanings which include, among others, the law of the province of Holland from roughly seventeenth to nineteenth centuries. According to some writers it is this law of the province of Holland which, as the law of the original colonial settlers, has formed the basis of contemporary South African law. Other writers, however, claim that it is the law of the whole of the Netherlands or even a European ius commune based on Roman law which was exported to South Africa. In my opinion, of the two approaches described above, broader view seems the more correct. That the course of Roman-Dutch law in South Africa is considered as well as the extent of the influence of English law which developed in the courts in England is also known as “common law (that is to say Common law)”. English Common law in this sense, however, refers neither to Roman-Dutch common law in South Africa nor to the historical ius commune of Western Europe. And the fact that South African common law is not English Common law means that South African law was not influenced by English law, in fact it is actually remarkable that English law did not replace Roman-Dutch law entirely as the common law of South Africa after the last British occupation of the Cape (in 1806) and the expansion of Britain’s colonial power in South Africa. Next this paper deals with Apartheid laws which functioned as a social engineering method. Racial discrimination has existed in many other societies but in the past, it was expressly written into the laws and supported by the government of South Africa. At that time, politically South Africa limited self-governing territories known as homelands. The blacks enjoyed no representation in the Central Parliament, nor in the provincial Councils which had limited legislative powers over the provinces. After post-Apartheid the reconstruction of the South African law through a new synthesis with both indigenous law and positive law is explained. Important changes have taken place since Nelson Mandela was released from prison. That is, Apartheid legislation was abolished and a new South African Constitution with a bill of rights was enacted, and the concept of human rights has been officially recognized in South Africa. This has brought about far-reaching changes to South African legal system. In conclusion, the above shows that South African law is a good example of mixed jurisdictions and then mixed jurisdictions could seem surprising in the light of the efforts underway to create a new European ius commune. In addition to, South African law suggests where the Korean law and the Asian law should go further in the future that every country’s law in Asia is going to have to be integrated for economic or cultural unity.

목차

Ⅰ. 들어가는 말

Ⅱ. 혼합법계에 대한 개념 소개

Ⅲ. 아파르트헤이트시기까지의 남아공법

Ⅳ. 아파르트헤이트 이후의 남아공법

Ⅴ. 글을 마무리하며

키워드

남아프리카공화국 혼합법 로마-네덜란드법 로마-홀란드법 남아공법 아파르트헤이트 보통법 South Africa mixed legal system Roman-Dutch law Roman-Holland law South African law Apartheid common law