官治, 식민지에서 ‘법의 지배’: 한말ㆍ일제강점기 ‘법’과 ‘법치’에 대한 한국인의 경험을 중심으로

Abstract

“Governance by law” is one of the indicators to assess the formal completion of a modern state. In the forms of “governance by law,” the colonial rule of Japanese imperialism had clear differences from the Joseon Dynasty. In addition, it was abnormal even compared with Japanese imperialism on the mainland, let alone modern Western nations. Modernization or civilization showed a tendency of arguing for the exclusion of violence and yet finding an exception in the violence inherent in the modern laws. Modern institutions control and monopolize violence at the same time. Setting aside the violence of modern laws as universal rules, this study set out to examine the transplantation of legal systems after Korea opened its ports to foreign trade and the experiences and perceptions of “governance by law” among the Korean people during Japanese rule. After Korea opened its ports to foreign trade, the reform of the judicial system was inevitably subjected to time differences and distortions until its actualization beyond the systematic dimension. The investigator examined the process with a focus on the records written by foreign visitors to the nation since it was unlikely that the common people were exposed to or had experiences with the modern judicial system during the period. The full-blown modernization of the judicial system was pushed ahead after colonization. The concept of “rule of law” made people imagine the formal rationality of modern times. It was, however, a “forced ruling” that comprehensively expressed the 1910s when the reorganization of the judicial system was concentrated on. Those days, the Korean people faced the Japanese Empire in the forms of military police, their assistants, and police all over the place. For the people of Joseon, law was the fearful power of colony, and governance by law was the politics of the Governor-General with absolute power. In a situation where the Governor-General had the authority to proclaim even regulations in addition to the administrative and judicial power, law was nothing but a means of colonial rule. Colonial Joseon was a police state with the mighty administrative and judicial right to disposal granted to the police. The subjects of law enforcement including the policemen and judicial officials did not hesitate to have their own colonial ways in the name of the law, which led to distrust in and negative perception of the law. The laws of the Japanese Government-General of Korea were decorated with modern legislation even though they had fundamental limitations as commissioned laws. The colonial legislation had its own essential defects including many exemption laws on the excuse of Joseon's unique circumstances and also followed the mechanism of universal modern legislation that allowed for nothing from the outside. “Law abidance” was forced on the people as an unconditional duty even in the colony regardless of the content and nature of legislation, and that legal discourse has influences on the perceptions of Korean people even today.