근대 사법제도 성립사 비교연구 －한국에 있어서 ‘사법독립’ 원리의 태동 수용과 전개－

Abstract

In this article, I trace the frustrated legal efforts to establish independent courts during the late Chosun Dynasty and the Taehan Empire. First, I compare the traditional judicial system of Korea with that of Japan and China. Here, I concentrate on the traditional systems of “checks and balances” in each state, and find that the distinctive feature of the Korean system is to limit the terms of judicial officers. Next, I analyze some literatures that introduced the new idea of “judicial independence” to Korea. In this part, the work of Choi Han-ki(최한 기), the Japan-reports of Eom Se-young(엄세영) and Park Jeong-yang(박정양), some editorials of the Hansong Sunbo(한성순보), some descriptions of Mangukjeongpyo(만국정표) and Misokseupyu(미속습유), the reform petition of Park Young-hyo(박영효의 건백서) will be examined. Compared to Japan and China, the acception of judicial independence, theoretical or constitutional, was extremely late in Korea. Such “ur-constitutional” documents as Cheongryeong (Governmental Order) of the Kapsin Coup, Hongbeom(Great Norm) of the Kabo Reform, Heonyi(Six Articles[Charter]) of the Independence Club, Kukje(State Institution) of the Taehan Empire do not contain any clause concerning judicial independence. The first constitutional document that provided the guarantee of judicial independence is the Provisional Constitution of 1919, but it was no more than a “constitutional decoration” of the “provisional government” which could not actually “constitute” and “govern.” Although the Court Organization Acts of 1895, 1899, and 1907 modelled after the Japanese judicial reform acts since the Meiji Restoration, provisions concerning judicial independence were completely excluded. Lastly, I research the historic causes and the political effects of the absence of judicial independence in Korea. Here, I conclude that the dominancy of such “political” principles as parliamentarism and localism over the “legalistic” principle like judicial independence might explain the Korean experience.