Meaning
A source of law is the form in which law exists and can be applied by courts.
Written law
- Constitution: supreme norm
- Statutes enacted by the legislature
- Decrees (presidential, prime-ministerial, ministerial), usually delegated legislation
- Rules of the Supreme Court and National Assembly
- Local ordinances
- Treaties, which under Article 6 of the Korean Constitution have the effect of domestic law
Lex superior, lex specialis and lex posterior resolve conflicts. Written law offers clarity but adapts slowly.
Unwritten law
- Customary law: practice accepted with legal conviction; in Korea it only supplements statutes.
- Case law: binding under stare decisis in common law systems; in Korea precedents are de facto authoritative.
- Reason (jori): the nature of things and social common sense.
Article 1 of the Korean Civil Act applies statutes first, then custom, then reason. Criminal law forbids customary offences under nullum crimen sine lege.
Legal traditions
Civil law systems (Germany, France) centre on codes; common law systems (England, the US) on precedent. In 2004 the Korean Constitutional Court controversially treated Seoul as capital under customary constitutional law.
References
- 「대한민국헌법」 제6조.
- 「민법」 제1조.
- 헌법재판소 2004. 10. 21. 2004헌마554 결정(신행정수도의 건설을 위한 특별조치법 위헌확인).
- 곽윤직, 김재형. (2013). 『민법총칙』(제9판). 박영사.
- Zweigert, K., & Kötz, H. (1998). An Introduction to Comparative Law (3rd ed.). Oxford University Press.