식민지기 조선 민사법의 호주권 기능－메이지 민법의 「家」제도와의 비교분석적 접근－

Abstract

‘Ie(「家; Household」)’ constituted by a House Head and its family members in the Meiji Civil Code was transmitted to Korea based on the law of census registration (Min-Seki-Hou; 民籍法) in 1909. After that, the composition of ‘Ie’ of the Meiji Civil Code was transferred to Korea, and Min-Seki–Hou was gradually revised. Eventually, Chosun Census Registration (Koseki-rei; 朝鮮戸籍令) was enforced in 1923. Concerning those processes, most researchers have asserted that the system of ‘Ie’ in the Meiji Civil Code had been completely conveyed and implanted in Chosun Korea. But the core concepts of ‘Ie’ of the Meiji Civil Code are based on both ① the system of succession of the House Head status through a male descendant and ② the House head’s right which has absolute authority toward his family members. In the past decades, many researchers studying the household system have focused on comparing ① the succession system or the regulations of census register during the colonial period. It seems that there is no research about the relationship between ‘the House head and its family members’ or the House Head’s rights of functioning his authority. Therefore, this article discusses the functions of the House Head’s right in supporting the ‘Ie’ in Meiji Civil Code, and how it worked in Korea, especially focusing on the House Head’s right which can legally exclude or reject his defiant family member to return to his own household, and its absolute authority as the base of constituting the ‘Ie’. As a result, I attempt to argue that the House Head’s right in Korea during the colonial period was completely different from that in Meiji Civil Code. The House Head’s right for forming the ‘Household’ in Korea could not be approved whereas that in Meiji Civil Code was regarded as the core function. In addition, the right in the Meiji Civil Code has been defined as absolute authority. Nevertheless, the right of House Head in Korea during the colonial period relatively depended on his family custom due to the traditional value of honoring seniors in the family. Overall, focusing on the House Head’s rights, I demonstrate the fallacy of those arguments in saying that the ‘Ie’ system of the Meiji Civil Code, which admits the absolute authority of the House Head or the right for forming the ‘Ie’, has been transferred and implanted into Korea. Because there is no connection between the functions of the House Head’s right in Japan and those of Korea during the colonial period.