한국의 형사사법과 민사분쟁형 고소사건 -구한말과 일제시대의 경험-

Abstract

The Korea Criminal Justice System and the Complaints related to Civil Dispute : Historical Experiences during Early Modern and Colonial Period* Moon, Joon-Young** In Korea, it has been pointed out as the serious problem of the criminal justice administration that a party of the civil dispute mobilizes the organ of the criminal justice in order to resolve his case effectively to his advantage. In this article, I examined the question historically: by what mechanism civil disputes flowed into the criminal justice system and when the typical phenomenon appeared or became visible. In pre-modern legal system, the dichotomy between civil and criminal affair was not clear. The traditional civil procedure(詞訟: sa-song) always tended to be connected with the criminal sanction. However, this might be characterized as a common feature found in any pre-modern legal systems. The very dualism which separate civil and criminal affair strictly and then make the situation, which this article treated, regarded as abnormal and troublesome, is modern. It was introduce by the judical reform in Korea in late 19th century. In colonial period, there were two devices through which the police contacted with people's ordinary disputes. One is the civil arbitration by the chief of a police station. The other is the civil affairs office(人事相談所: in-sa-sang-dam-so) in the police station which was installed under the slogan of "making the police familiar to people." Although these two must have broadened the possibility for the police to engage people's ordinary dispute, we can find typical cases in the statements of some prosecutors in early 1930s. According to the documents of the prosecutor's office, it became an issue that some people tactfully made a use of the criminal justice organization in order to win their civil case. The prosecutors, however, did not regard the problem as proper one to Korean people, but rather as common criminological phenomenon between Korea and Japan. If we focus on another aspect of the problems, that the prosecutor engaged the people's disputes referred to him as if he were arbitrator, it is necessary to examine further the situations of Korean criminal justice system for 1950~1960's to explain the origin of the present problem.