淸日戰爭 이전과 이후 在韓 韓中間 ‘訴訟’ 안건 비교 분석

Abstract

This study examined changes in Korea‐China relationship in the 19th century by analyzing the proceedings of legal cases between Koreans and Chinese in Korea (Chosun or the Daehan Empire) before and after the Sino‐Japanese War. Among the legal cases, murder cases were selected from cases before the Sino‐Japanese War and from those after, and their proceedings and results were examined. First, the legal ground of the proceedings of legal cases before the Sino‐Japanese War was stipulated in Article 2 of the Regulations for Maritime and Overland Trade between Chinese and Korean Subjects established in August 1882. According to the regulations, if a Chinese was the defendant and a Korean was the plaintiff in a case that had happened in Korea, the offender was to be arrested and tried by the Chinese Trade Commissioner (a diplomatic mission equivalent to a consul). If a Chinese was the plaintiff and a Korean was the defendant, the offender was to be arrested by the Korean government and delivered to the Chinese Trade Commissioner and to be investigated and tried jointly by the two countries. In Korea, accordingly, China was authorized to rule cases in which the defendant was a Chinese and the plaintiff was a Korean by itself, and those in which the defendant was a Korean and the plaintiff was a Chinese jointly with the Korean government. Next, the legal ground for the proceedings of legal cases after the Sino‐Japanese War was stipulated in Article 5 of the Treaty of Commerce between Korea and China concluded in September 1899. According to the treaty, if a Chinese was the defendant and a Korean was the plaintiff in a case that had happened in Korea, the case was tried by the Chinese Consul and a Korean official could attend the trial as an observer on behalf of the plaintiff. If a Korean was the defendant and a Chinese was the plaintiff, the case was tried by a Korean judge and a Chinese official could attend the trial. The observer was guaranteed to question or cross‐question witnesses and to argue against unfair judgments. For the case that a Chinese was murdered in Korea before the Sino‐Japanese War (the murder case of Chinese merchant Cho hak In), a Chinese official tried jointly with a Korean official, and for the case that a Korean was murdered (the assault and murder of Korean solider Lee Deok Myeong), the Chinese suspect was protected actively by the Chinese agency. On the contrary, the Korean government delivered the Korean criminal for the murder of a Chinese to the Chinese agency and had to try him jointly with the Chinese official, and could not raise any objection to the result of the trial of the Chinese offender in a murder case of a Korean. When a Korean woman (Kang) was murdered by a Chinese in Korea after the Sino‐Japanese War, the Chinese Consul protected the offender strictly under the according‐to‐defendant's‐nationality‐principle of the Consul’s jurisdiction regardless of the Korean observer’s opinion. On the contrary, when a Chinese was murdered (the assault and murder case of Chinese seaman in Hae Zu), the Korean government sent an observer, but had little influence on the consequence of the trial. This situation was much different from that before the Sino‐Japanese War. However, the new Korea‐China relationship after the Sino‐Japanese War ended up as a mere short‐term ‘experiment’ due to change in Korea‐Japan relationship.