식민지기 상속관습법의 타당성에 대한 재검토 -가족인 장남의 사망과 상속인의 범위-

Abstract

According to the Chosun Civil Ordinance(promulgated in 1912) and the Korean

Civil Code(promulgated in 1958), customary laws on kinship and inheritance were

acknowledged as legal sources which could be applied to cases before 1960.

Although customs on inheritance during the colonial period were confirmed by the

Chosun High Court of Justice, there still remained many problems about practical

affairs. Especially the main issue was about who should be a legal heir in case the

eldest son who was a household member died. This article approaches this problem

from a historical point of view.

A feature of the Chosun Dynasty changed from an equal society to a patriarchal

one in the latter period of it. Customs confirmed during the colonial period focused

on the household head system which gave priority to the eldest son. These customs

reflected a real social aspect of the latter period of the Chosun Dynasty. Thus an

argument that the Chosun Government-General of Japanese Imperialism distorted

customs of the traditional Korean society intentionally to make them comply with

those of Japanese Imperialism has no solid ground. However, it is also incorrect to

argue that Japanese Imperialism had little influence on customs of the traditional

Korean society. It is because the patriarchal system just recognized as a practice in

the traditional Korean society got to be acknowledged as a norm during the

colonial period. Japanese Imperialism played a decisive role in making customary

laws standards of behavior.