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초록

The judicial precedent in English law is a reflected statement of the principle of the applicable law, which may be relied on in the future. The doctrine of the judicial precedent is that each court is bound to follow the decisions of a court above it in the hierarchy. It means furthermore that an inferior court cannot decide a pending case against the case decided by a superior court; any case previously decided by judges of the Court of Appeal is binding on judges of the same court in a similar or identical case; however, the decision by judges of the High Court is not binding on judges of the same court in a similar or identical case. The judicial precedent does not comprise all the statements of the decided case, but is confined to ration decidendi. It can be different from the precedent court decisions in Korean law in that the court decisions following the precedent cannot be named the precedent in English law. The judicial precedent can be laid down by senior courts such as High Court, Court of Appeal, and the Supreme Court. The decisions by the Judicial Committee of the Privy Council are not binding precedents, but can be persuasive precedents. The finding of the ratio decidendi of a decided case, such as what is the ration and ti what extent the ratio reaches, is determined by a court in a later case, but not by the judge who decided the case. There are several devices which enable judges to avoid the unfavourable consequences of the doctrine of the judicial precedent: distinguishing, overruling of the judicial precedent, and exceptions to the doctrine. Any judge in a later can distinguish between the pending case and the previously decided case. The overruling of the judicial precedent means that the principles of the law laid down by a lower court is overturned by a higher court in a different later case. A court has no competence to overturn the principles laid down by a same level court in the hierarchy except the Supreme Court. By overruling, the previous precedent is regarded as never having been law. Namely, overruling has retrospective effect. In this regard, the overruling of judicial precedents laid down by the Supreme Court (previous the Appellate Committee of the House of Lords) can take place in very exceptional cases so as not to disturb retrospectively the basis on which contracts, settlements of property, and fiscal arrangement have been enterred into and the especial need for certainty. Even though adhering to the retrospective overruling for long time, the House of Lords recently opened the way to prospective overruling in the case of In re Spectrum Plus Ltd [2005] 3 WLR 58 HL by the majority adopting "Never say never" policy in terms of whether prospective overruling can be permitted in the English common law. Lastly, exceptions to the doctrine of the judicial precedent are about whether the Court of Appeal is bound by its own previous decision. In Young v Bristol Aeroplane CO. Ltd [1944] KB 718, CA, the Court of Appeal decided that it was normally bound by its own previous decision subject to some exceptions.

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