朝鮮總督府法令體系分析(I)

전체 글

(1)發刊辭韓國뿐만 아니라 日本을 비롯한 세계 學界에서는 植民地社會의 성격을 둘러싸고 近代化論과 收奪論에 대한 論爭이 經濟分野를 중심으로 뜨겁게 전개되었습니다. 그리고 植民地社會의 性格에 대한 論爭은 경제적 측면만 이 아니라 社會와 文化 등 다방면에 걸쳐 새롭게 제기되고 이에 대한 해답 이 제시되고 있으며, 나아가 近代性 자체에 대한 의문까지 던져지고 있습 니다. 이러한 사실은 30여 년에 불과한 植民地의 歷史와 社會가 해방 후 반세기가 지난 현재까지 나아가 앞으로도 중요하다는 것을 逆說的으로 말 해주고 있습니다. 즉 韓國의 社會와 歷史는 植民地의 經驗에서 결코 자유 로울 수 없다는 것이 우리의 역사적 현재입니다. 위 論爭의 눈을 法制의 側面으로 돌려볼 때, 그 동안 우리 法學界에서는 제대로 된 논의는 거의 없었다고 할 수 있습니다. 물론 단편적으로 植民地法制를 分析하고 그에 터잡아 그 성격을 규명한 선구적인 업적은 있었지 만, 이는 植民地法體制全體를 분석한 것은 아닙니다. 그 동안 주로 經濟史硏究者나 社會史硏究者들이 식민지 사회의 성격논쟁을 주도해왔고, 法制史硏究者들은 그 언저리를 맴돌 뿐이었습니다. 法은 한 社會의 構造와 나아가 그 性格을 규정하는 決定的인 요소입니다. 그 동안 植民地社會의 性格論爭에서 법학자가 핵심을 차지하지 못하고 주변을 차지해온 것은 식 민지 법제에 대한 연구가 미진하였기 때문입니다. 그래서 그 논쟁에서도 법은 부수적인 위상만 가질 뿐 중핵으로 자리잡지는 못하였습니다. 그 동안 植民地法制에 대한 연구가 미진한 것은 法令의 방대함 때문이 라고 생각합니다. 帝國主義日本은 法治主義를 표방하여 植民地朝鮮을 支配하였습니다. 물론 진정한 의미의 法治主義인가에 대한 논란은 있지만, 어쨌든 法令은 엄청나게 증대하였습니다. 그 법은 朝鮮民衆의 삶을 출생 에서 사망, 나아가 사후까지, 一擧手一投足 장악하였습니다. 식민지법은 그물처럼 보이지 않는 곳에서 조선 민중을 얽어매었습니다. 게다가 法令의 形式도 다양하였습니다. 어느 분야에서는 사실상 일본법이 그대로, 다른.

(2) 분야에서는 전혀 별개의 법이 적용되었고, 또 다른 분야에서는 일본법이 變容되었습니다. 법령의 방대함과 내용과 형식의 다양함은 식민지 법제에 대한 총체적인 접근을 가로막았습니다. 이제는 總論的論議를 止揚하고 個別分野의 硏究를 集合하여 全體에 접근해야 할 階梯라고 생각합니다. 본 연구원에서는 현행법제의 역사적 연원을 규명하기 위한 기초작업을 진행하였습니다. 1894년 갑오개혁 이후 1910년 8월 한일합방까지 공포된 법령을 정리한. 韓末法令體系分析 을 1991년에 간행하였으며, 1906년 1월. 설치된 統監府에서 공포한 법령을 정리한. 統監府法令體系分析 을 1995년. 에 간행하여 斯界의 硏究에 많은 도움을 주었습니다. 이어서 朝鮮總督府法令의 정리에 착수하였으나, 담당연구자의 轉職 등으로 완성에 이르지는 못하였습니다. 이제 기존의 연구를 담당해온 鄭肯植 교수(서울대학교 법과대학)와 협조 하여 朝鮮總督府法令의 정리에 착수하여 첫 성과물을 上梓합니다. 조선총 독부의 법령은 분량이 방대하고 또 형식이 다양하기 때문에 앞의 資料集과 는 그 形式과 體裁를 달리 하였습니다. 大韓帝國과 統監府의 法令은 한 권 으로 모두 정리할 수 있었지만, 조선총독부의 법령은 최소한 6, 7권을 구 상하고 있습니다. 그리고 法令의 內容보다는 形式을 우선하여 먼저 詔書, 皇室令, 法律, 勅令, 軍令, 條約, 制令, 府令 등을 내용별로 정리하여 발간 합니다. 나머지 閣令, 省令, 訓令, 道令, 部令, 訓示, 達, 諭達, 諭告․告諭, 通牒, 軍事公文, 告示, 地方廳公文 등을 정리한 자료집을 곧 이어서 발간하여 학계에 중요한 기초연구자료로 제공할 예정입니다. 근래에 人文學의 危機라는 말이 사회에 회자되고 있습니다. 이는 실용적 인 것, 목전의 이익만 추구하는 우리 사회의 전반적인 분위기에서 나왔습 니다. 하지만 이런 경향을 자아낸 데는 學界의 責任도 전혀 없다고는 할 수 없습니다. 그 동안 학계나 학자는 개인의 연구를 중시하여 열악한 연구 환경 속에서도 상당한 성과를 거두어 왔습니다. 하지만 눈을 밖으로 돌려 보면 연구 분위기는 우리와 자못 다릅니다. 일본이나 중국에는 個別硏究를 뒷받침하는 基礎資料에 대한 調査․整理와 硏究가 엄청나게 쌓여있습니다. 그들은 이러한 기초자료의 정리가 있었기 때문에 개별연구가 활발하게 진.

(3) 행되어 전반적인 연구수준이 향상되었습니다. 이제 우리도 좀더 큰 시야에 서 전체를 위한 연구, 즉 기본자료의 조사․정리․연구를 체계적으로 지원 하고, 학자들도 관심을 가져야 할 때라고 생각합니다. 韓國法의 基礎分野인 韓國法制史는 본 硏究院의 定款事業입니다. 그렇지 만 전공자가 소수인 學界의 現實과 기초분야를 홀대하는 사회의 전반적인 분위기 때문에 정규사업으로는 수행할 수 없었습니다. 이러한 여건 속에서 도 韓國法制史에 대한 硏究를 간헐적으로 수행하여 成 ,. 慣習調査報告書(改譯版). 16世紀詞訟法書集. 등을 발간하였습니다. 이는 한편으로는 연. 구원의 설립취지에 부응하고 또 다른 한편으로는 학계에 연구자료를 제공 하였습니다. 그 동안의 연구사업에 대해서는 만족하며, 앞으로도 기초연구 를 적극적으로 지원할 생각입니다. 방대한 조선총독부 법령을 요령 있게 정리하여 학계에서 중요한 기초자 료로 활용할 수 있게 한 정긍식 교수를 비롯한 관여 연구진에게 감사를 드 리며, 발간에 관계한 분들의 노고를 치하합니다.. 2001. 12.. 韓國法制硏究院院長徐承完.

(4) 目次. 一. 詔書 ·················································································································· 13 1. 皇室 ·················································································································· 13 2. 赦免 ·················································································································· 13 3. 朝鮮關係 ············································································································ 13 4. 國際關係 ············································································································ 13. 二. 皇室令 ················································································································ 14 1. 皇室 ·················································································································· 14 2. 宮內省 ················································································································ 14 3. 李王職 ················································································································ 16 4. 朝鮮貴族 ············································································································ 16. 三. 法律 ·················································································································· 17 1. 皇室 ·················································································································· 17 2. 立法 ·················································································································· 17 3. 統治機構 ············································································································ 17 1) 行政一般 ········································································································· 17 2) 警察 ··············································································································· 18 3) 軍事 ············································································································· 18 4. 民事 ·················································································································· 19 5. 刑事 ·················································································································· 20 6. 司法 ·················································································································· 20 7. 財政 ·················································································································· 21 8. 租稅 ·················································································································· 23 9. 社會․敎育 ········································································································ 26 10. 交通 ················································································································ 27 11. 通信 ················································································································ 28 12. 産業 ················································································································ 28.

(5) 四. 勅令 ·················································································································· 30 1. 皇室 ·················································································································· 30 2. 立法 ·················································································································· 32 3. 統治機構 ············································································································ 32 1) 行政一般 ·········································································································· 32 2) 警察 ················································································································ 53 3) 軍事 ················································································································ 54 4) 對外關係 ·········································································································· 61 4. 民事 ·················································································································· 61 5. 刑事 ·················································································································· 65 6. 司法 ·················································································································· 68 7. 財政 ·················································································································· 70 8. 租稅 ·················································································································· 77 9. 社會․敎育 ········································································································ 82 10. 交通 ················································································································ 95 11. 通信 ················································································································ 99 12. 産業 ·············································································································· 103. 五. 制令 ················································································································ 114 1. 王室 ················································································································ 114 2. 立法 ················································································································ 114 3. 統治機構 ·········································································································· 114 1) 行政一般 ········································································································ 114 2) 地方制度 ········································································································ 114 4. 民事 ················································································································ 115 5. 刑事 ················································································································ 118 6. 司法 ················································································································ 119 7. 財政 ················································································································ 120 8. 租稅 ················································································································ 121 9. 社會․敎育 ······································································································ 129.

(6) 10. 交通 ·············································································································· 131 11. 通信 ·············································································································· 132 12. 産業 ·············································································································· 132. 六. 朝鮮總督府令 ······························································································· 134 1. 皇室 ················································································································ 134 2. 立法 ················································································································ 138 3. 統治機構 ·········································································································· 138 1) 行政一般 ········································································································ 138 2) 警察 ·············································································································· 152 3) 軍事 ·············································································································· 160 4) 對外關係 ········································································································ 163 4. 民事 ················································································································ 163 5. 刑事 ················································································································ 183 6. 司法 ················································································································ 191 7. 財政 ················································································································ 196 8. 租稅 ················································································································ 215 9. 社會․敎育 ······································································································ 238 10. 交通 ·············································································································· 278 11. 通信 ·············································································································· 297 12. 産業 ·············································································································· 318. 七. 條約 ················································································································ 345 1. 民事 ················································································································ 345 2. 交通 ················································································································ 345 3. 通信 ················································································································ 345 4. 産業 ················································································································ 346 5. 對外關係 ·········································································································· 346.

朝鮮總督府 法令體系分析(I)

朝鮮總督府法令體系分析(I)