법에서 법과 언어학 — 법무부의 ｢알기 쉬운 민법｣ 사업(2008-2018)을 계기로 —

초록

The Korean Ministry of Justice proposed so-called easily comprehensible civil code draft in 2018 as a part of interdepartmental “Everybody understands law” program launched in 2006, on which individual academics and organizations of professionals finished commenting. As a witness of this course of events, I feel it necessary to review and analysize the relations of law and languages in the civil code upon this opportunity. While lex cannot exist without lingua(and reception as well as support in a community hereupon), there have been tensions between the two every time and every where. Here are introduced various attempts for easing those tensions that have been made since 1960’s mainly in the common law countries(Ⅱ). So far, however, those attempts could not be viewed as a big success so far, for legal science/practice and linguistics, unlike law and economics, have yet no concepts and logic in common; there exists a kind of discrepancy. In particular, it is important to make sure that all citizens can clearly understand the contents of civil law, as it is a law that regulates citizens' daily legal relationships, namely property and family relations. In Germany, which used the codification as an important means of state governing under the influence of Aufklärung, there was already harsh criticism of the first draft of the Civil code(BGB) in the late 19th century; the draft actually went back to the famous debate over codification led by scholars including von Savigny. All those experiences contributed to the current German legislature system of close cooperation with linguistic experts(Ⅲ). In the case of Japan, the civil law, which was established by the Meiji government more than 100 years ago, was extensively modernized from orthography to terminology in 2004, before the recent 2017 revision of the civil law; the sentence and system were furthermore refined in the process(Ⅳ). Let us back to our case. In fact, our civil lawyers still lack and need linguistic theories for modernization of the Civil code. The theories do not mean those of linguistics but those of law and linguistics. The status quo of the Korean civil code is quite different from the Japanese counterpart before the revision of 2004, which a good few well-educated citizens cannot understand or even read. When you are talking about the introduction of so-called easy-to-understand civil code for the ordinary, it should be a necessary amendment not only to the general public who is an outsider of special legal training but also to the legal professionals who provide legal services for them. Our Civil code has already rooted in the society and woven citizens’ daily lives for more than 60 years; it is preposterous to separate its language, content and system and reform each of them piece by piece(Ⅴ).

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