영국의 초기 법원모독법 소묘

• 발행기관: 한국민사소송법학회
• 저자명: 장준혁(Junhyok Jang)
• 간행물 정보: 『민사소송』제29권 제1호, 559~592쪽, 전체 34쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2025.02.28

국문 초록

The law of contempt of court has remained an important part and parcel of the common law, while it has only received sporadic welcome in the civil law world. A question for a comparative lawyer is whether this apparently dramatic difference makes a real difference, and if so, how. As part of an endeavor to answer this question, this paper made a sketch of the early stage of the English law of contempt. This brief sketch may have illustrated the following. First, the customary law of England has retained its continuity after the Norman conquest in the name of the common law. The law of contempt also developed in this background. Second, the localities in England had developed a cooperative culture of resolving disputes within the community and thereby seeking reconciliation. It was so well before the Norman conquest. And the kings of the unified kingdom preserved and succeeded to this culture. It was combined with the medieval idea of judgment by the peers. The traditional dispute resolution system and its further development in the royal courts do not reveal any tendency to blame disputants for spoiling the orientation for social harmony. Third, the parties would have recovered its dignity through the process of litigation and accepting its outcome. The dignity offered by the judicial process would have been a better substitute for the dignity-recovering function of retaliation. Fourth, in this background, a losing party's frontal challenge to the judicial power must have been taken as a particularly unacceptable behavior, undermining the dignified legal process and the regained harmony of the local community. This perception would have triggered a willingness to make a resolute legal response from the court. Fifth, the early law of contempt appears to have concentrated on deterring the use of force or other forms of frontal challenge to the judicial power of the crown. In the absence of a systematized body of judicial officers, the judges of the royal courts, by themselves, had to take care of the effectiveness of their judgments and procedures. Sixth, the law of contempt, while predating the Norman conquest, proved highly useful in enhancing the effectiveness of the newly imposed system of the common law and the royal courts, thereby contributing to the establishment of the alien rule in England. The English law of contempt also appears to have played an important role in substantiating the territorial sovereignty, which took place well before the philosophical thinkers came up with the idea of sovereignty. This long history of judicial prerogative was the essence of the English legal history, before the privatization of judicial functions was to follow.

목차

Ⅰ. 도입

Ⅱ. 법원모독법 발달사의 시대구분

Ⅲ. 초기 법원모독법의 개관

Ⅳ. 결어

키워드

법원모독 민사적 법원모독 형사적 법원모독 약식재판 배심재판 contempt of court civil contempt criminal contempt summary procedure trial by jury