Jinsu Yune, The Weight of Precedent -How much the court shall be restrained from overruling the precedent?, Korean Journal of Legal Philosophy, Vol. 21 (3) (2018), pp. 131-204.
<Abstract>
The overruling of precedent in general has been deemed quite difficult. In Korea, based on its civil law tradition, the overruling of precedent has been oftentimes witnessed. As such, it is worth studying how much the court shall be restrained from overruling the precedent, under Korean law. In this regard, this paper first studies the issue from comparative law perspective. Some court decisions have emphasized that the court shall present particularly convincing grounds upon overruling the precedent, which justify such overruling. Of course, other court decisions have held different view. The academic debates have been divided. In Korea, this problem has not been much discussed. One concurring opinion and one dissenting opinion of the en banc decisions of the Korean Supreme Court touched upon this matter, asserting that the overruling of precedent should be done very prudently. Such deference to precedent may be explained in terms of path dependence, from prescriptive perspective. Further, protecting legal certainty and reliance interest also supports the deferential attitude towards precedent, from normative perspective. Indeed, some of precedents shall be sustained, as long as the legal rules prescribed therein hold valid. However, if the precedent is flawed, or no longer holds valid, the court shall overrule the precedent, in principle, with no further burden. Under exceptional circumstances where the overruling of precedent is highly likely to cause a legal chaos, the wrong precedent may be tolerated.
<Keywords>
Overruling of Precedent, Doctrine of stare decisis, Deference to the Precedent, Special Justification, Path Dependence, Protection of Reliance Interest
Jinsu Yune, The Weight of Precedent -How much the court shall be restrained from overruling the precedent?, Korean Journal of Legal Philosophy, Vol. 21 (3) (2018), pp. 131-204.
<Abstract>
The overruling of precedent in general has been deemed quite difficult. In Korea, based on its civil law tradition, the overruling of precedent has been oftentimes witnessed. As such, it is worth studying how much the court shall be restrained from overruling the precedent, under Korean law. In this regard, this paper first studies the issue from comparative law perspective. Some court decisions have emphasized that the court shall present particularly convincing grounds upon overruling the precedent, which justify such overruling. Of course, other court decisions have held different view. The academic debates have been divided. In Korea, this problem has not been much discussed. One concurring opinion and one dissenting opinion of the en banc decisions of the Korean Supreme Court touched upon this matter, asserting that the overruling of precedent should be done very prudently. Such deference to precedent may be explained in terms of path dependence, from prescriptive perspective. Further, protecting legal certainty and reliance interest also supports the deferential attitude towards precedent, from normative perspective. Indeed, some of precedents shall be sustained, as long as the legal rules prescribed therein hold valid. However, if the precedent is flawed, or no longer holds valid, the court shall overrule the precedent, in principle, with no further burden. Under exceptional circumstances where the overruling of precedent is highly likely to cause a legal chaos, the wrong precedent may be tolerated.
<Keywords>
Overruling of Precedent, Doctrine of stare decisis, Deference to the Precedent, Special Justification, Path Dependence, Protection of Reliance Interest