일제강점기 형사법제의 기본구조에 대한 연구 - 일본 형사법의 변화를 중심으로 -

Abstract

It has been about 60 years since the current criminal law took effect. In the meantime, a number of studies have been conducted on the source of our criminal legislation, but most of them have been concentrated only in certain periods, making it difficult to examine the overall process of our legislation. In particular, Joseon, which did not have sufficient knowledge of the Western powers, had no choice but to accept Western culture through Japan, so our legislation today was also counted through Japan, especially the Prussian law in Germany. Considering that the decisive factor lies in the historical fact that the national authority was stolen by Japan in 1910, it is very meaningful to look at the overall criminal law during the 36-year colonial period. And this is to find the source of our legislation. In addition, examining the impact of social trends in the Japanese colonial era on our legal system is a process of exploration to abandon the uncritical past and find legal systems suitable for the changed era. Above all, it will be an opportunity to consider what is the desirable direction of the legislation at the moment when it requires changes in the criminal legislation, such as the adjustment of the prosecution and police investigation rights. After 36 years of Japanese colonial era from 1910, Japan’s criminal law system had no choice but to be implemented as it was. As a result, we have no choice but to look at the process of establishing our criminal legislation based on the process of introducing the Western legislation in Japan. As is well known, after entering the path of Western modernization from the 16th century, Japan rapidly promoted Westernization in 1868 and introduced Western legislation. At the time of the Restoration of the Ming Dynasty, Japan introduced a French-style criminal law system through Boasonard, a professor of law at the University of Paris, France, to revise the unequal treaty signed with the Western powers. Later, in the early 20th century, it was converted to German criminal law with Hirobumi Ito’s inspection of Europe. As a result, the basis of the criminal legislation applied to Korea for Japanese colonial era was also German criminal legislation, and this trend has been maintained until now. The characteristic elements of German legislation, which are summarized as strong enforcement of investigative powers, strengthening punishment, and expanding security measures to support militarism, were used as a means of suppressing Joseon’s independence movement on the Korean Peninsula during the Japanese colonial period. It was also applied much more harshly in Japan to strengthen the exploitation of the colonies. Representative examples include the Joseon Taehyungryeong, Crime Immediate Disrespect, and the Policing Act, and Japan’s inclusion into militarism and participation in the World War through the installation of numerous laws and detention facilities. More than 60 years after liberation, the impact of criminal legislation during the Japanese colonial period still remains intact in our legislation. Therefore, it is necessary to continue efforts to convert to our own criminal law system that reflects the general sense of law and legal culture of the people in the future.