개념의 충돌인가, 해석의 문제인가? - 영사재판의‘청심(廳審)’조항을 중심으로 -

Abstract

This article aims to determine the meaning of the‘Cheungsim’conceptthrough real case studies involving the ‘Cheungsim’clause in ConsularJurisdiction in Joseon and Korean-Empire times. To do this, the article willexamine the meaning according to the law of Consular Jurisdiction, the generalfeatures of the management of the Cheungsim right, and, finally, what is thepoint of dispute in the field in which the concept of the right to ‘Cheungsim’conflicts in the‘ Paenggang Case(彭姜案)’. Consular Jurisdiction, in civil and criminal trials between people of local andforeign countries, is a system and procedure through which an accused isjudged by the judicial administration, and in accordance with the laws, of thecountry to which the accused belongs, while a prosecutor is protected by theadministration of his or her own country; the prosecutor and witnesses attendthe court of law managed by administration of the country to which the accusedbelongs. The ‘Cheungsim’clause secured by the Consular Jurisdiction in thelatter years of the Korean Empire established that administrators of the countriesto which the prosecutor and the accused belong gather together to discuss andnegotiate before the trial, or in the course of trial. In turn, the‘ Cheungsim’right, given the same position with the‘ Seungsim(承審)’right, is highly significant, as it opened the possibility of damaging thenational power of Joseon, which, in the end, was weak in terms of powerrelations with other countries. In the process of the ‘Paenggang Case’,administrators of the Korean Empire and Chung (China) revealed different ideasas regards relations between ‘Seungsim’and ‘Cheungsim’, and as to whether ornot the ‘Seungsim’administration should have precedence. Of course, this, forthe ‘Cheungsim’Act, which had been newly introduced in the ConsularJurisdiction, was closer to the result according to differences in the interpretationof the clause, so as to protect the people of the country, rather than a conflict ofconcepts with a clear meaning of social/political difference. In modern Korea, the word, ‘Cheungsim’, in itself, did not have anymeaningful change, nor was there any content which outlined, or indicatedmultiple meanings, or any complexity of the concept. However, the‘Cheungsim’Act, at the same time, was introduced with the intent of protectingthe national rights of the Joseon order and of the Joseon people’s rights. The‘Cheungsim’Act, in the late Korean Empire period, was a concept formedthrough experience and study of western people’s procedures in treaty-makingwith other countries. This was the medium connecting the national right to selfprotectionto that of the people’s right protection; even though this wasdamaged by western countries and by Japan in reality, it ws established as alawful concept to be realized in the future. With Chung (China), as a countrywith which to make a treaty on equal terms, this made the conflict as it was seena current problem, not a future problem.