근대 사법제도 성립사 비교연구 -한국에 있어서 “사법독립” 원리의 태동,수용과 전개-
Creating Independent Courts : Origins and Processes of Judicial Independence in Korea

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서울대학교 법학연구소
법학, Vol.49 No2 pp.256-285
사법독립입헌주의재판소구성법judicial independenceCourt Organization ActConstitutionalism동아시아
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...
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 49, Number 1/4 (2008)
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