근대 민사판결문에 등장하는代人의 현황과 성격

Abstract

The “Dae’in(代人)” figures, which began to appear in official records in 1895, and the roles they played in civil trials, are examined in this article. These Dae’in figures seem like the next incarnation of its predecessor, the Wejibu(外知部) entity from the early half of the Joseon period. And they can also be considered as the early form of today’s judicial scriveners(法務士) and lawyers(辯護士). So, proper understanding of these Dae’in figures could potentially advance our own knowledge of legal elite groups’ or judicial professionals’ evolutionary process in Korea. First of all, the Dae’in figures which first surfaced in 1895 were actually entities that could never be described as legal experts, at least in the early years. Analysis of modern civil trial records currently in custody of the Official Court Library shows that since the Attorneys at Law Act’s enactment in 1905, and before a new breed of Dae’in figures -who had originally been a lawyer or attorney- came into service, family members or relatives often stood in as Dae’in, and most of them only joined the trial once. Such private and not to mention limited involvement indicates that they could not have possibly been able to fulfill their role as an effective litigation representative or counsel. The overall percentage occupied by ‘trials joined by Dae’in figures’ was also mere 6.5% of the entire trials examined, which shows Dae’in was never involved in the actual trials that much. These figures, however, appear to have joined trials at the High Court(Godeung Jaepan-so) or Pyeong’ri-weon(平理院) with a relatively higher frequency(32.1%). Such heightened frequency seems to have had something to do with the emergence of prior attorneys who turned into Dae’in figures after the 1905’s enactment of the aforementioned Attorneys at Law Act. Survey of all trials joined by Dae’in figures revealed total of 17 Attorney/Dae’in figures, among 28 lawyers who were registered and in service during the Gwangmu(光武) era. These 17 individuals and possibly more, identified as Attorney-turned-Dae’in figures, seem to have contributed to the introduction of Western-style legal principles(法理), which could have only been embraced by legal experts trained in new-age legal institutions, and to the spreading of the ‘litigation by representation’(代審) practice. It can also be said that they ultimately helped shape the official trial administration in Korea, and establish modern-style litigations during the Daehan empire period.