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@article{ART002285523},
author={김영숙 and Kim, Sang-Kyum},
title={A Study on the Applicability of the Adjudication of Constitutionality on Customary Law},
journal={Public Land Law Review},
issn={1226-251X},
year={2017},
volume={80},
pages={399-417}

TY - JOUR
AU - 김영숙
AU - Kim, Sang-Kyum
TI - A Study on the Applicability of the Adjudication of Constitutionality on Customary Law
JO - Public Land Law Review
PY - 2017
VL - 80
IS - null
PB - Korean Public Land Law Association
SP - 399
EP - 417
SN - 1226-251X
AB - State system of positive laws alone cannot address every legal issue of a country. This is why customary law which did not go through the official legislative process fills the need of the society and is recognized by the state. However, customary law has an effect to a complementary extent, and has different standards of application from positive law. In order for customary law to be binding, it has to be stipulated in the positive law as in Article 1 of our civil law and criminal law. Against the backdrop of the controversy on customary law which is a kind of unwritten law lie a series of rulings in which the Constitutional Court and the judicature presented conflicting positions. The difference in views on customary law of both constitutional institutions have constantly caused a controversy on the source and effect of customary law in a state based on written law. In academia, the majority denies the applicability of the adjudication of constitutionality on customary law, and some claim that the adjudication should be applied to customary law as well considering its legal effect. Even though our Constitution does not mention customary law in particular, laws from the legislature defines the source of customary law, and recognizes the primary effect beyond complementing positive law under certain circumstances. This view of the legislature can be interpreted as recognizing customary law as a complement in the absence of positive law. As long as the positive law does not deny the effect of customary law, it would be groundless to deny the legal effect of customary law. Denying the applicability of adjudication of constitutionality on customary law seems to be a result of grammatical interpretation and formal logic. The Supreme Court's position would not also be free from non-legal factors such as the subtle competition with the Constitutional Court. Considering the purpose of the adjudication of constitutionality as a review mechanism of norms that have effect on the legal right of people, its applicability on customary law should also be recognized.
KW - customary law;statutory law;constitutional court;judicial review;supreme court
DO -
UR -
ER -

김영숙 and Kim, Sang-Kyum. (2017). A Study on the Applicability of the Adjudication of Constitutionality on Customary Law. Public Land Law Review, 80, 399-417.

김영숙 and Kim, Sang-Kyum. 2017, "A Study on the Applicability of the Adjudication of Constitutionality on Customary Law", Public Land Law Review, vol.80, pp.399-417.

김영숙, Kim, Sang-Kyum "A Study on the Applicability of the Adjudication of Constitutionality on Customary Law" Public Land Law Review 80 pp.399-417 (2017) : 399.

김영숙, Kim, Sang-Kyum. A Study on the Applicability of the Adjudication of Constitutionality on Customary Law. 2017; 80 399-417.

김영숙 and Kim, Sang-Kyum. "A Study on the Applicability of the Adjudication of Constitutionality on Customary Law" Public Land Law Review 80(2017) : 399-417.

김영숙; Kim, Sang-Kyum. A Study on the Applicability of the Adjudication of Constitutionality on Customary Law. Public Land Law Review, 80, 399-417.

김영숙; Kim, Sang-Kyum. A Study on the Applicability of the Adjudication of Constitutionality on Customary Law. Public Land Law Review. 2017; 80 399-417.

김영숙, Kim, Sang-Kyum. A Study on the Applicability of the Adjudication of Constitutionality on Customary Law. 2017; 80 399-417.

김영숙 and Kim, Sang-Kyum. "A Study on the Applicability of the Adjudication of Constitutionality on Customary Law" Public Land Law Review 80(2017) : 399-417.