법률상 간주 = Legal Consideration

다국어 초록 (Multilingual Abstract)

This paper divided various examples of so called ‘consideration(看做)’ (fiction, 擬制) into laws, theories, and judgments, and discussed them, especially focusing on legal consideration. Legal consideration has the advantage of being easy and clear in normative evaluation when used as a legislative technique. The consideration as a means of argument for the reason for judgment(ratio decidendi) is useful in the scene of evidence investigation, fact recognition, and even legal evaluation. The conditions presupposed by the theory can serve as a clear link through consideration. Despite the usefulness of this consideration as above, it is also necessary and worth paying attention to the risks inherent in or accompanying the consideration. Although it is the regulation of consideration to make our life with uncertainties and contradictions or conflicts stably and predictably enter into the area of norm, there is a risk of distorting reality because something is considered to be identified with the others ‘knowing’ that the latter is be different or could be different from the former. In a judgment, there is also a risk of disguised argument if a conclusion is made using the ‘consideration’ without sufficient arguments about evidence investigation or hearing. It brings namely stability in legal relations, but there is also a harsh aspect due to certain irreversibility(think about death consideration). And as consideration is used in almost all legal areas, it is better to understand and apply it according to the respective reasons, purposes, and risks of various considerations, knowing their risks and taking care of interpreting and applying the regulations in question. Although their purposes are good, there are legal provisions that are not easy to interpret and apply because they do not fit into reality. The consideration-based provisions should be interpreted and applied more carefully, especially because the risk of excessively overlooking the difference from reality and- of excessive consideration eventually due to the discretion of the judge.
In short, consideration is a means of accepting typical living relations as legal norms or ensuring practical efficiency. It creates a convenient and stable link in the world of the idea named law. It is difficult to deny the need to stabilize legal relations because human life relations are full of contradictions and conflicting elements. However, if the risk of real distortion or excessive consideration as above is realized(or about to realize), the scope of consideration should be reduced or necessary excluded. As we have seen in many cases, this risk could be much greater disadvantage to the concerned than expected. Therefore, it is reasonable to use an 「presumption」 in which the opportunity to disprove during lawsuits is given in such interests that do not require one party to be unilaterally at an advantageous starting line, and the risk of reality distortion or excessive consideration is relatively small. If the legislator is convinced that the new case B is the same as or one of the existing case A, it is reasonable to give clear guidelines using ‘mutatis mutandis application’ rather than pretending as if it were a ‘consideration.’ In the end, legal consideration as an independent institute that should be distinguished from 「analogy」 should be justified based on the ‘nature of things’ and this supporting legal principles especially in the area where ‘legal stability’ is required, and the systematic position and legislative purpose should be considered above all in the interpretation of the consideration-based regulations.