일제의 실증주의법에 저항한 우리 민중의 자연법 사상과 그 실천-자연법 사상에 기초한 우리 민중의 저항권을 중심으로-

Abstract

Acts, which had been legislated and implemented by Japanese Occupational Authorities in Korea during colonial period from 1910 to 1945, had been very bad and brutal, because they had been on the basis of legal positivism. Colonial controls by imperialistic Japan may be evaluated as illegal torts by statutes to Korea and Korean peoples. The Japanese Occupational Authority had carried out unlawful and brutal controls to Korea and Korean peoples on the basis of statutes, which had been decreed by Japanese King or Governor of the Japanese Occupational Authority, who had transplanted Japanese acts in Korea through his decrees. All Governors of the Japanese Occupational Authority had been military generals, not civilians. The Governors had powers to legislate acts in Korea. But they had not sufficient knowledges of law enough to legislate acts. Therefore, they had mainly transplanted Japanese acts, which had been legislated by Japanese Imperial Diet, into Korea through their decrees. If necessary, Japanese King had directly issued his decrees, which had been effective in Korea. The Japanese Monarchy of those days was very imperialistic and persued colonial occupations over neighboring countries. Namely, ultimate goal of the then Japanese Imperilialsitic Monarchy was to be become a nation for wealth and military power. As a result of such political policies, the Japanese Imperialistic Monarchy expanded its colonies by conquering its neighboring countries and provoked the Second World War in Asia and the Pacific. By the decrees by Japanese King or the Governors of the Japanese Occupational Authority during colonial period in Korea, the Japanese Occupational Authority had coerced Korean peoples to change their original names into those of Japan, not to speak Korean language, confiscated agricultural products, mobilized Korean peoples for war coercively and recruited Korean young women for sexual comfort of Japanese soldiers etc.. These unhuman torts of Japan had been carried out through legislated bad statutes, which was effective by the legal thought of positivism, not by the thought of natural law. The then Japanese Imperialistic Monarchy had followed and kept the legal positivism. Korean peoples had resisted against bad and brutal controls and coercions with belief of thoughts of natural law, which admits only justifiable acts as effective law. Korean peoples had carried out independent movement only with belief of natural law. Leaders of independent movements had established Provisonal Korean Government and legislated modern Provisonal Korean Constitution, which had guaranteed basic human rights of Korean. Such independent movements had continued for duration of colonial period continously at great sacrifices of Korean underprivileged peoples. Such Korean sacrificial independent movements could be carried out on the basis of belief of unwritten natural law, which justifies resitances against bad colonial policies and brutal controls by Japanese unhuman acts on the philosophical basis of legal positivism. Finally, Korea has been emancipated from the colonial york of Imperialistic Japan due to the continous resistances of Korean peoples with the firm belief of natural law. Therefore, the thoughts of natural law has been able to be the fundermental legal thoughts of Korea even after establishment of Korean Government. It would be able to be evaluated that the unwritten natural law in the minds of Korean peoples has won over the written legislated imperialistic bad acts of Japan on the legal positivism. Even though Korean peoples had experienced harsh hardnesses during the colonial period, we had kept the thoughts of natural law and developed natural law, which could make peoples live dignitary and resist against unlawful measures of states. Even though the acts would be legislated by competent authorities, they are not able to be acknowledged and effective as acts, if their contents would not be conr connt with the universial common values of mankinds. Therefore, the natural law shall be the legal policy in Korea. If we would develop natural law continously in the future, the state status of Korea would be highly graded up and Koreans would become highly cultivated and civilized peoples in the world.