한말의 민사분쟁과 식민지 사법권력 : 관습에 관한 재판례를 중심으로

Abstract

This articles examines the court decisions concerning customs or customary laws among the cases treated by the Gyǒnsǒng Court of Appeal(京城控訴院) and Gyǒnsǒng District Court(京城地方法院) from Aug 1908 to Dec 1910. In 59 cases, the courts confirmed or denied certain customs covering legal ability, family, succession and inheritance, ownership and use of real property, transaction, joint and several liability, bill and check. The customs recognized by the courts are almost the same with the customs recorded in the Reports on Korean Customs edited by the Korean Code Investigation Bureau. However, there are several cases in which the parties or experts cited the different or even opposite one each other. It is not adequate to understand that it means that one of the parties or experts could not recognize the content of the custom in question exactly. Rather, it is necessary to rethink the concept and the mode of existence of custom itself within the traditional civil norm of Korea which were in subtle tension with the concept of custom of western type jurisprudence. For clarifying this point, this article analyses a series of the court decisions ruled by both old and new courts about the custom of transferring bill.