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...