近代 司法制度 成立史 比較硏究－日本에 있어서 ‘法院組織’ 法制의 初期 形成－

Abstract

Making Modern Judicial System : Its Legal History in JapanShin, Woo-CheolNo one can deny the historical fact that the legal system modernization after “Meiji Restoration” played a very important role not only in Japan, but also in the whole Eastern Asia. I make a comparative study about the legal history of establishing modern judicial system in Japan. In the study, four legal documents will be thoroughly examined, i.e., Official Regulations of Judicial Affairs(Shiho-Syokumu-Teisei) of 1872, Official Regulations of the Supreme Court and District Courts(Daishinin-Syosaibansyo-Syokusei-Syotei) of 1875 and 1877, Law of Crime Control(Chijaiho) of 1880, and Law of Court Organization (Saibansyokoseiho) of 1890. Through the study, I draw some useful conclusions. First, our long-respected “three-instance system” has its origin in Japanese “mixed version” of German “Dreiinstanzensystem” and French “cour de cassation.” Second, our “special court system”, including administrative courts and courts-martial, also has something to do with the Japanese imitation of German “Sondergerichtssystem” in Meiji era. Third, our strong hierarchial bureaucracy in the judicature originates from the “modernized” judicial system of Japan, which copied the French “state-concentrated” judicature after the Revolution. Fourth, some judicial terms like Jae-pan(trial), Beob-won(court), Pan-sa (judge) etc., derive from Japanese translations of Western words.