민법의 기초자 가인 김병로

Abstract

After gaining independence from Japan in August 1945, the Republic of Korea prioritized the codification of its legal system, which entailed developing new laws and codifying them󰡈separate from the laws that the Japanese colonial rulers imposed on Koreans in 1919–1945󰡈to lay the foundations for Korea as a fledgling sovereign state. The history-making task of writing the new Korean Civil Code was given to the most accomplished legal expert of the time, Kim Byeong-Ro (also known by his pen name, Gah-In). On September 15, 1948, shortly after his inauguration as the first chief justice of the Supreme Court of Korea, Kim served as chairman of the Korean Code Compilation Committee and worked tirelessly toward codifying the law of his country. Despite the challenges from the Korean War, (1950–1953), Kim successfully finished drafting the Civil Code on July 4, 1953, and the draft code was submitted to the Korean National Assembly as a government proposal. On December 17, 1957, two days after Kim’s retirement as chief justice, the National Assembly passed a bill approving the Civil Code. On February 27, 1958, the Civil Code was promulgated as Act No. 471; and on January 1, 1960, it came into force. During his tenure as chief justice, Kim not only instituted an independent Korean judiciary but also accomplished the all-important task of drafting the Korean Civil Code. If we wish to understand the historical origins of the Civil Code of Korea, it would be a worthwhile endeavor to examine the role that Kim played in creating the Civil Code and Kim’s relevant achievements. Furthermore, within the current context of considering amendments to the Korean Civil Code with some urgency, it would be essential to examine the principal elements of the Code and the Code’s guiding philosophy, which influenced the Korean legislators at the time of the Code’s infancy. Against the foregoing backdrop, this article reviews the role of Kim Byeong-Ro, as the central figure behind the Korean Civil Code, in authoring the Code while analyzing how his ideology and ideas are reflected in the major provisions of the Code. The article begins by retracing Kim’s process in writing the Code, highlighting his involvement and his accomplishments in particular. The major provisions of the Korean Civil Code are then compared with those of the Japanese Civil Code, as the latter was effectively in force in the Republic of Korea when the former was codified. Through this comparison, the article aims to examine Kim’s ideology and convictions as they came to be evinced in the course of drafting the Korean Civil Code. Kim was determined to create a Civil Code that would wholly supplant the Japanese Civil Code󰡈and one that would be in harmony with the culture and customs indigenous to Koreans. To that end, he researched and studied the civil codes of many foreign countries. But he eschewed borrowing or adopting foreign laws in their original form. Instead, he only made use of them as a point of reference. In drafting the Korean Civil Code, Kim proceeded to codify what was in line with Korean customs and practices even when they did not exist in the Japanese Civil Code, while making a point of abolishing or revising what existed in the Japanese Civil Code that was alien to Korean soil. This is why a great number of provisions in the Korean Civil Code are not found in any form in the Japanese Civil Code. Or, even when they are, they differ in their content. Kim sought to avoid or limit unconventional or extremely individualistic views while honoring legal principles based on natural law. He also exhibited mindfulness of the socially and economically underprivileged by making a conscious effort to create a Code that was rational and reasonable in its particulars. In the realm of family law in particular, Kim attempted to reform the family system to make it jibe with the much-changed social reality at the time while remaining faithful to Korea's proper traditions, good morals, and ethics. It is largely owing to Kim’s genius, industry, and endeavor that the Republic of Korea can proudly claim its ownership of a Civil Code.