「민법안의견서」의 학설 편입과정을 통해 본 민법개정에 대한 태도

Attitudes to the Amendment of the Civil Law in Academicization of a Book 'Opinions on the Civil Law Bill'

「민법안의견서」는 민법 제정 당시 국내 각 대학의 민사법 담당 교수들이 모여 구성한 민사법연구회가 민법초안 및 민법안심의소위원회의 수정안에 대한 의견을 모아 발표한 책이다. 이 책에 수록되어 있는 의견들은 비록 직접적으로는 민법 제정과 관련하여 큰 영향을 주지 못하였지만, 일부 의견은 당시에 현석호 의원의 수정안을 통하여 국회에 제출되어 실제로 민법에 반영되기도 하였다. 이처럼 「민법안의견서」는 민법 제정과정에서 중요한 역할을 한 자료라고 할 수 있다. 이러한 「민법안의견서」의 내용이 민법 시행 이후 학설로 편입되는 상황을 검토해 보면 다섯 가지 유형으로 나누어 볼 수 있는데, 이 글에서는 각 유형에 따라 입법자 또는 해석자로서 어떤 점에 주의해야 할 것인지에 대해 검토해 보았다. 이러한 역사적 전개에 대한 검토는 현재 진행되고 있는 민법개정 작업에 대해 타산지석이 될 수 있을 것이다.

A book 'Opinions on the Civil Law Bill' was compiled by professors in the civil law at universities all across the nation. The book did not exert direct influence on the enactment of the civil law, but some opinions were submitted by an Assemblyman, Hyun, Seok Ho, to the National Assembly and thus were addressed at the plenary session, and actually were reflected in the civil law, which shows that the book took a significant role in the enactment of the civil law. The contents of the book 'Opinions on the Civil Law Bill' were academicized after the enforcement of the civil law, in five cases. The first case is where the book was argued to be its original role, i.e., de lege ferenda. In this case, any problem does not occur in the interpretation of the civil law though criticism is given on the procedure in which the contents were not reflected in the process of enactment. The second case is where the lawmaker’s opinion was a contrast to the book in the legislation process. In this case, the sentences of the laws conflict with the book, which implies that the book is counter to the sentences of the laws and also passes the bounds of law interpretation. The third case is where the lawmaker’s opinion was counter to the book but some sentences of the laws backed up the book in consequence of legislative missteps. Nevertheless, it is not a big problem though the lawmaker’s carelessness may be an object of criticism. The fourth case is where the lawmaker’s opinion was against the book but the book’s contents were not completely against to the sentences of the laws but were argued within the allowable interpretation of the law. However, it may be advisable to reflect such a claim in de lege ferenda inasmuch as the lawmaker’s opinion is obvious. In such a case, it is better for the lawmaker to set forth its view in the sentences of the laws. The fifth case is where the lawmaker’s opinion was not clearly expressed but the sentences were against the book. Likewise, it may be desirable to reflect the claim in de lege ferenda in that it is against the sentences of the laws. In the manner now described, the contents of the book ‘Opinions on the Civil Law Bill' were academicized in various ways. The lawmaker should make more definite laws in order that the purpose of legislation may not be misconstrued in the process of interpretation. The interpreter should not disdain laws, such as dealing with legislative matters from interpretative perspective, by reason that its opinion has not been reflected in the process of enactment.