Judicial History Materials Exhibition Sourcebook Volume II Table of Contents

02 Preface 04 Thematic Commentary – Failures of the Modern Judicial System of the Joseon Dynasty and Birth of the Patriotic National Law

Chapter 1 Changes that Sprouted the Seeds of the Modern Judicial System

10 Opening of Joseon’s Ports 12 Embracing Western Legal Knowledge 17 Laws and Trials in the Minds of Enlightened Intellectuals of the Joseon Dynasty 18 ≪Chidoyakron≫ by Kim Ok-gyun 19 ≪Geonbaekseo≫ by Park Young-hyo 22 ≪Seoyugyeonmun≫ by Yu Gil-jun 24 Popularization of Western Legal Knowledge

Chapter 2 Background as to the Foundation of the Modern Judicial System

28 Types of Modern Laws and Regulations 30 Court Organization Law 37 Records and People under the Modern Judicial System of the Joseon Dynasty 38 Civil and Criminal Lawsuit Regulations 39 Enactment of 40 Trial Records and Written Judgments 44 Training Legal Professionals 46 Books on Legal Studies

48 Bibliography Table of Contents

02 Preface 04 Thematic Commentary – Failures of the Modern Judicial System of the Joseon Dynasty and Birth of the Patriotic National Law

Chapter 1 Changes that Sprouted the Seeds of the Modern Judicial System

Chapter 2 Background as to the Foundation of the Modern Judicial System

48 Bibliography Preface

Changes in the Late Joseon Period and Dawn of the Modern Judicial System

The Supreme Court Library has been compiling the judicial history of Ko- 1894 to the signing of the Korea-Japan Annexation Treaty in 1910, a number rea, as well as collecting and managing materials with high historical value. of modern laws and regulations were enacted and proclaimed, including Moreover, the Library has hosted the biennial Judicial History Materials Ex- the and the . Finally, the Legal Training School was established and the attor- the temporal and spatial constraints of the exhibition, the ≪Judicial His- ney system was adopted. tory Materials Exhibition Sourcebook≫ was published to provide an opportunity for more people to gain exposure to, and understand, the history of The 2013 exhibition featured historical materials of great significance on courts by accessing the exhibition materials. the laws and trials of the late Joseon period, including: (i) the Ganghwa Treaty, which forced Joseon to open its ports to Japanese trade; (ii) materials In 2016, the Supreme Court Library is publishing the English version of illuminating the ideas of the enlightened intellectuals, such as ≪Chidoyak- the ≪Judicial History Materials Exhibition Sourcebook≫ series. This is a ron, 治道略論≫ by Kim Ok-gyun, ≪Seoyugyeonmun, 西遊見聞≫ by Yu Gil-jun, part of the Supreme Court Library’s effort to raise awareness of the Korean and ≪Geonbaekseo, 建白書≫ by Park Young-hyo; (iii) modern laws and regu- judicial system and legal culture by informing the audience worldwide of lations, such as the ‘Court Organization Law,’ the ‘Civil and Criminal Proce- the establishment and evolution of the Korean legal system, by means of dure,’ and the ‘Criminal Code (Hyeongbeob Daejeon)’; and (iv) trial records introducing valuable judicial historical materials at home and abroad. This from this period. In collecting the copies and images of pertinent materials sourcebook is the English version of the second volume of the ≪Judicial to put this sourcebook together, we owe much to the assistance of a num- History Materials Exhibition Sourcebook≫ originally published in Korean ber of outside organizations, including the National Archives of Korea, the in 2015, featuring key contents of the second exhibition held in 2013 un- National Library of Korea, the Independence Hall of Korea, the Diplomatic der the theme of “Laws and Trials in the Late Joseon Period.” In addition to Archives of the Ministry of Foreign Affairs, the Academy of Korean Stud- shedding light on the historical significance of the laws and trials of the ies, the Korea University Museum, the Korea University Library, the Dong-A late Joseon period, this resource is also aimed at helping readers grasp how University Medical Library, and the Seoul National University Kyujanggak the late Joseon period, the dawn of the modern judicial system, fit in to the Institute for Korean Studies. overall Korean judicial history, by looking at how Western civilization and modern judicial knowledge were introduced and institutionalized from the It is my hope that the publication of Volume II of the ≪Judicial History Ma- opening of Joseon ports to foreign trade to the signing of the Korea-Japan terials Exhibition Sourcebook≫ will enhance understanding of the Korean Annexation Treaty. judicial history and legal culture by introducing the Korean judicial history materials to a broader audience abroad, and that in so doing, it will pave the The embrace and dissemination of modern judicial knowledge by the en- way for further promoting international judicial exchanges. lightened intellectuals of the late Joseon period contributed to raising public awareness of modern legal principles and ideas including freedom rights , , , June 2016 and judicial independence. Joseon’s first independent judicial body was established with the legislation of the on March 25, KIM Kee Jurng 1895, based on the lunar calendar. Over the sixteen years spanning from President of the Supreme Court Library of Korea Preface

Changes in the Late Joseon Period and Dawn of the Modern Judicial System

Failures of the Modern Judicial System of the Joseon Dynasty and Birth of the Patriotic National Law Professor Jung Geung-sik Seoul National University School of Law

Joseon, often described as the “Land of Joseon sent an official observation mis- its limitations, such as the fact that pro- thorities. Powerless people attempted to the Morning Calm,” was no longer calm at sion to Japan to learn modern Japanese cul- vincial leaders still served as judges, the protect their own rights and interests the end of the Age of Discovery. Iron ships ture and prepare for institutional reform. reform was meaningful in that judicial through lawsuits. Ito Hirobumi, the Japa- from foreign countries were approaching With Western goods came Western knowl- functions were separated from the execu- nese Resident-General in Joseon, thought the coast of Joseon, and neighboring Chi- edge and ideas, such as rights and duties. tive body for the first time in the history of that he could gain the support of the Jo- na was going through immense upheaval. The separation of powers and the law were Joseon. Meanwhile, Dokripsinmun (Inde- seon people by improving the trial sys- These events were harbingers of a new perceived by Joseon intellectuals as a way pendent News) emphasized how important tem. In January 1906, he seized control of age. The glory days of Joseon, a period of building a new society. Enlightened intel- it was to guarantee the independence of Joseon’s judiciary by sending in Japanese under the leaderships of King Yeongjo lectuals including Park Young-hyo, Kim Ok- trials and judges, and strongly criticized legal assistants to Joseon. In December and King Jeongjo, were long gone. People gyun, and Yu Gil-jun argued that Joseon’s instances of wrongful conviction. 1907, he re-enacted the and completed the modern judi- legal action to keep what little they had. the lives and properties of all Joseon peo- Loss of Judicial Power Followed by cial system in Joseon, once again separat- The mantra of “filing a suit without good ple, but their argument ended up being no Loss of National Sovereignty ing judicial functions from the executive cause and never dropping charges until more than a storm in a teacup. History has its ups and downs, its twists body and instituting the three-tier court you win” became customary among the Gabo Reform in 1894 and Eulmi Reform in and turns. After King Gojong took refuge system, consisting of district courts, courts people of the Joseon Dynasty. 1895 transformed the Joseon society. , a reform guideline, prescribed the declared the start of the “Korean Empire” and prosecutors of Joseon. Japan forced Modernization of the Judicial System need to enact civil and criminal laws to pro- in 1897. The opening of Joseon’s ports to foreign tect the lives and properties of the Joseon tution of the Korean Empire)> promulgat- in July 1909 (a year before Japan’s annexa- trade was a shock to the country. Japan, people. In April 1895, the was enforced in order to sepa- Gubonshincham (accept the new without authority over the administration of jus- fully opened the ports under the pretext rate the judicial system from the adminis- throwing out the old). In 1898, the Han- tice and prisons in November of the same of international law and had Joseon sign trative system and lay the groundwork for sung District Court was abolished and its year. Subsequently, Joseon’s courts were the Joseon-Japan Treaty of Amity. This modern judicial system, granting judges role was reverted back to Hanseongbu- abolished, the Korean name for courts treaty declared Joseon to be an independ- the sole authority to preside over trials. yoon (government official of Hanseong- was changed from “Jaepanso” to “Beobwon,” ent country and allowed extraterritorial This law also enabled the establishment of bu). The Korean Empire turned back the and the Supreme Court was downgraded rights to Japanese nationals residing in the Hansung District Court, local courts, clock of judicial history. to High Court. The age of Japanese coloni- Joseon. circuit courts, and high courts. Despite Laws and trials protect people from au- alism began.

04 05 Thematic Commentary

Failures of the Modern Judicial System of the Joseon Dynasty and Birth of the Patriotic National Law Professor Jung Geung-sik Seoul National University School of Law

04 05 Birth of Modern Legislation and Legal emissary to the International Peace Con- Mission of Patriotic National Law: ple.” Even Japanese legal assistants in Jo- Professionals, and its Hopes and Failures ference held in The Hague in June 1907, Laws and Trials for the People seon, who looked down on the people of Transformation of the judicial system and Ahn Byeong-chan. Ahn tried to de- With the Korean Empire deprived of its Joseon, were impressed by how aware they influenced not only the system itself but fend Ahn Jung-geun, who was sentenced judicial power by Japan, many judges and were of their legal rights. also legislation and human resources. to death after the assassination of Ito Hi- prosecutors resigned and law students re- Believing laws and trials were there to in 1894 robumi, but his attempt ended in failure fused to study out of protest. At the same protect them, the people of Joseon tried divided legislations into several catego- due to obstruction from the government time, these groups emphasized the impor- to protect their own rights through court ries, including laws, imperial edicts (詔勅), of Japan. The Legal Training School was tance of law studies, pointing out the rule trials and by contesting unfairness. For and orders. The Committee to Draft Legal changed to Beobhakgyo (Law School) in of law is a pillar of a society and law was them, the courts were not objective or Codes established in 1895 began develop- 1909, to Gyeongseong Junsoo School in required to save the people of Joseon and neutral third parties, but merciful author- ing fundamental laws, such as civil laws 1910, and then to Gyeongseong Law College their motherland. ities like a king. This is the reason why and criminal laws, but the project fell in 1922. Yangjung School, a private school, Japan invaded Joseon with laws and trea- Ito Hirobumi attempted to improve the short of completing the . In- and Bosung College also provided legal ties in lieu of arms. The intellectuals of judicial system of Joseon and emphasize stead, , a comprehensive law book, to those of today. Several legal textbooks of understanding laws, and especially in- professionals, a campaign that became a was compiled in 1905. Procedural laws were published by private schools, most of ternational laws. They strived to regain success for Ito Hirobumi. were established before that of substantive which were translated and edited versions national sovereignty by the law and defeat But everything changed in 1909 when Jo- laws. These included , promul- against this backdrop that the law came could no longer be tried in a Joseon court. ing Civil and Criminal Lawsuits)> in 1895, gated in 1895, revived the tradition of Wae- to be seen by Joseon people as a means of And Japanese was the only language al- in 1908, tive system. The of than personal success. Law in this period did not speak Japanese had no way of ex- and other auxiliary laws. Most of the laws 1905 introduced a Western-style attorney was “patriotic national law.” pressing their own ideas. Joseon people be- and regulations enacted at this time were system, and the first bar examination was The separation of the judiciary and the came alienated from courts of law and the done under the coercion of Japan. administered in 1907, although this was administration brought the people of courts wielded power over the people. This The establishment of courts required abolished in 1909 in line with Japan’s an- Joseon closer to courts. The number of situation lasted 36 years, and was a source legal professionals. In 1895, Beobbu (Law nexation of Joseon. Korea’s first registered cases filed increased significantly. A be- of sorrow for the people of Joseon. Department) established the Legal Train- lawyer was Hong Jae-gi. He studied in Ja- mused H. B. Hulbert, observing the Jo- ing School. Among the most distinguished pan and served as a lecturer at Bosung seon people’s willingness to stand before alumni of the Legal Training School were College. He was alo a member of the Com- the courts, once said, “They are too quick Ham Tae-yeong, one of the former vice mittee to Draft Legal Codes, a judge, and to say ‘Let’s go to court’ even though the presidents, Lee Jun, King Gojong’s secret a prosecutor. court is not a generous friend to the peo-

06 07 Birth of Modern Legislation and Legal emissary to the International Peace Con- Mission of Patriotic National Law: ple.” Even Japanese legal assistants in Jo- Professionals, and its Hopes and Failures ference held in The Hague in June 1907, Laws and Trials for the People seon, who looked down on the people of Transformation of the judicial system and Ahn Byeong-chan. Ahn tried to de- With the Korean Empire deprived of its Joseon, were impressed by how aware they influenced not only the system itself but fend Ahn Jung-geun, who was sentenced judicial power by Japan, many judges and were of their legal rights. also legislation and human resources. to death after the assassination of Ito Hi- prosecutors resigned and law students re- Believing laws and trials were there to in 1894 robumi, but his attempt ended in failure fused to study out of protest. At the same protect them, the people of Joseon tried divided legislations into several catego- due to obstruction from the government time, these groups emphasized the impor- to protect their own rights through court ries, including laws, imperial edicts (詔勅), of Japan. The Legal Training School was tance of law studies, pointing out the rule trials and by contesting unfairness. For and orders. The Committee to Draft Legal changed to Beobhakgyo (Law School) in of law is a pillar of a society and law was them, the courts were not objective or Codes established in 1895 began develop- 1909, to Gyeongseong Junsoo School in required to save the people of Joseon and neutral third parties, but merciful author- ing fundamental laws, such as civil laws 1910, and then to Gyeongseong Law College their motherland. ities like a king. This is the reason why and criminal laws, but the project fell in 1922. Yangjung School, a private school, Japan invaded Joseon with laws and trea- Ito Hirobumi attempted to improve the short of completing the . In- and Bosung College also provided legal ties in lieu of arms. The intellectuals of judicial system of Joseon and emphasize stead, , a comprehensive law book, to those of today. Several legal textbooks of understanding laws, and especially in- professionals, a campaign that became a was compiled in 1905. Procedural laws were published by private schools, most of ternational laws. They strived to regain success for Ito Hirobumi. were established before that of substantive which were translated and edited versions national sovereignty by the law and defeat But everything changed in 1909 when Jo- laws. These included , promul- against this backdrop that the law came could no longer be tried in a Joseon court. ing Civil and Criminal Lawsuits)> in 1895, gated in 1895, revived the tradition of Wae- to be seen by Joseon people as a means of And Japanese was the only language al- in 1908, tive system. The of than personal success. Law in this period did not speak Japanese had no way of ex- and other auxiliary laws. Most of the laws 1905 introduced a Western-style attorney was “patriotic national law.” pressing their own ideas. Joseon people be- and regulations enacted at this time were system, and the first bar examination was The separation of the judiciary and the came alienated from courts of law and the done under the coercion of Japan. administered in 1907, although this was administration brought the people of courts wielded power over the people. This The establishment of courts required abolished in 1909 in line with Japan’s an- Joseon closer to courts. The number of situation lasted 36 years, and was a source legal professionals. In 1895, Beobbu (Law nexation of Joseon. Korea’s first registered cases filed increased significantly. A be- of sorrow for the people of Joseon. Department) established the Legal Train- lawyer was Hong Jae-gi. He studied in Ja- mused H. B. Hulbert, observing the Jo- ing School. Among the most distinguished pan and served as a lecturer at Bosung seon people’s willingness to stand before alumni of the Legal Training School were College. He was alo a member of the Com- the courts, once said, “They are too quick Ham Tae-yeong, one of the former vice mittee to Draft Legal Codes, a judge, and to say ‘Let’s go to court’ even though the presidents, Lee Jun, King Gojong’s secret a prosecutor. court is not a generous friend to the peo-

06 07 Chapter 1

After opening its ports to the world in 1876, Joseon began interacting with Japan and western powers at the crossroads of modernization and sent official observation missions to these countries to stay abreast of the rapidly changing global landscape and to adopt western culture. Meanwhile, the seeds of modern judiciary system began to sprout in the minds of the enlightened intellectuals of Joseon. Changes that Sprouted the Seeds of the Modern Judicial System

Opening of Joseon’s Ports 10 Embracing Western Legal Knowledge 12 Laws and Trials in the Minds of Enlightened Intellectuals of the Joseon Dynasty 17 Popularization of Western Legal Knowledge 24 Chapter 1

Sounds of a New Era Awaken the Land of Morning Calm Joseon-Japan Treaty of Amity (朝日修好條規) In 1876, Joseon signed a treaty of amity with Japan and opened its ports to Japan. This was the first modern treaty Revolutionary Changes in the Late Period of Joseon signed by Joseon and a one-sided treaty concluded under The late period of Joseon mainly refers to the period between the late Joseon Dynasty and the coercion of Japanese military power. Article 10 of the the end of the Korean Empire (up until the signing of the Korea-Japan Annexation Treaty in Treaty forced Joseon to grant extraterritorial rights to Ja- 1910). As western thoughts made their way eastward, the intellectuals of Joseon, led by those pan, meaning that Joseon could not exercise its jurisdic- who had joined official observation missions, began to learn how modern legal and trial sys- tion over crimes committed by Japanese nationals residing tems worked. in Joseon.

Simhaengilgi (沁行日記) ≪Simhaengilgi≫ is a diary kept by Shin Heon, a protocol officer of Joseon, about what happened before the conclusion of the Ganghwa Treaty. The syllable “Sim (沁)” in the title refers to Ganghwa Island. ≪Sim- haengilgi≫ contains the story about the Royal Seal and about the document of Uijeongbu (the State Council of Joseon) that described the Unyo incident as “disorder”— an important record that tells us how Joseon perceived and responded to the signing of the Ganghwa Treaty. Housed in the Korea University Library.

Article 10 of the Ganghwa Treaty “Any Japanese nationals involved in crimes related to Joseon nationals shall be tried in Japanese courts; any Joseon nationals involved in crimes related to Japanese nationals shall be tried in Joseon’s courts. Japanese and Joseon nationals shall be investigated and judged by the law of their respective country, with no concealment or protection of Statue of Haetae in front of Gwanghwamun any kind, and shall be tried in a just and righteous manner.” Housed in the Record Office of the Japanese Ministry of Foreign Affairs the A statue of Haetae sits about 80 meters from Gwanghwamun. Haetae is a mythical unicorn-lion with the ( photo was taken in cooperation with the Diplomatic Archives of the ability to properly discern between right and wrong. A boy is standing on the head of the statue. The late period of Joseon is symbolized in the indifference of passers-by to the statue and in the lost splendor of Ministry of Foreign Affairs of Korea). Gwanghwamun. Housed in the Independence Hall of Korea.

Place where the Ganghwa Treaty was negotiated Housed in the Seoul National University Kyujanggak Institute for Korean Studies.

10 11 Opening of Joseon’s Ports

Place where the Ganghwa Treaty was negotiated Housed in the Seoul National University Kyujanggak Institute for Korean Studies.

10 11 Embracinng Western Legal Knowledge

Learning about the World in Tides of Change

Embracing Western Legal Knowledge Gongbochoryak In 1876, 75 members of an official observation mission led by Kim Gi-su returned to Joseon (公報抄略) Gongbochoryak a compilation of from a field trip to modernized facilities in Japan In 1880 Kim Hong-jip the leader of the ≪ ≫, . , , important Chinese newspaper editori- second official observation mission, brought Huáng Z nxiàn’s ≪Joseon Strategy (朝鮮策略)≫ als, was compiled by Kim Gyeong-su to King Gojong. Cho Byeong-ho, Park Jeong-yang, and Park Young-hyo, who were also sent as (1818~?), who traveled back and forth between Joseon and China, and pub- part of the observation mission to Japan, would later be at the forefront of Gaehwapa, a group lished in 1879. Some of the articles of people who pursued reform. Kim Yun-sik and his envoy team were dispatched to the Qing in ≪Gongbochoryak≫ that regarded Dynasty of China in 1881. In addition, a group of emissaries, including Min Yeong-ik, Hong China as a weak country and urged the Chinese to work harder for national Yeong-sik, and Seo Gwang-beom, was sent to the United States in 1883 for a firsthand view of prosperity came as a shock to many western civilization and modern systems. After their journeys, each team submitted detailed advocates of Catholic exclusion and Sino-centrism in Joseon. Housed in the reports to King Gojong. Korea University Library.

Cheonjindamcho (天津談草) ≪Cheonjindamcho≫ was written by Kim Yun-sik (1835~1922), who kept a record of his discourses with L Hóng Zh ng, Möllendorff, etc. from Novem- ber 1881 to October 1882 in Tianjin, China. Kim Yun-sik emphasized the importance of joint debates and public law, which, according to him, un- derpinned the argument that Joseon should be given an equal voice as the world powers in the global stage. Housed in the Seoul National Univer- sity Kyujanggak Institute for Korean Studies.

Kimchongri Yugo (金總理遺稿) ≪Kimchongri Yugo≫ is a posthumous collection of poems and writings by Kim Hong-jip (1842~1896). It contains his report on a field trip to Japan as part of an official observation mission, his recommendations to enhance Bobingsa: an envoy team to the United States in 1883 national prosperity and defense, his opinions on the military system, his This photo depicts: (from the left in the front row) Percival Lawrence Lowell (American), Hong Yeong-sik, dialogues with the King, and records Min Yeong-ik, Seo Gwang-beom (Joseon), Wú L Táng (Chinese), and (from the left of the back row) Hyeon of the period around the Gabo Reform. Heung-taek (Joseon), Miyaoka Sseunejiro (Japanese), Yu Gil-jun, Choi Gyeong-seok, Ko Yeong-cheol, Byeon Housed in the Korea University Library. Su (Joseon). Housed in the Korea University Museum.

12 13 Embracinng Western Legal Knowledge

Learning about the World in Tides of Change

12 13 Embracing Western Legal Knowledge

Reports on Japan’s Judicial System by Observation Missions Eom Se-yeong (1831~1890) gathered information on Japan’s A 64-member observation mission, including 12 public officials, was dispatched to Japan Ministry of Justice and reform laws, and dedicated 7 sets between April and July 1881, under the secret orders of King Gojong. After returning to Jo- to King Gojong under the title ≪Ilbonsabeobseongsichalgi≫ seon, the mission submitted a series of reports titled “Gyeonmunrok,” “Mungyeonsageon,” along with a book titled ≪Ilbonmungyeonsageoncho≫. and “Mungyeonjogeon.” These reports were then compiled into more than 80 sets about Ja- ≪Ilbonsabeobseongsichalgi≫ covers a wide range of ba- pan’s major achievements through modernization. Among the authors of the reports, Park sic laws regarding Japan’s modern judicial systems. Vol- Jeong-yang and Eom Se-yeong were the first to introduce to Joseon the concept of the separa- ume 1 introduces the Ministry of Justice, its organization, tion of legal, administrative, and judicial powers. and related rules and regulations; Volume 2 provides the King Gojong sent Park Jeong-yang (1841~1905) to Japan as an undercover emissary of the list of criminal laws in Japan; Volume 3 looks at the rules King. After returning to Joseon, Park submitted to King Gojong the ≪Ilbongukmungyeon- and regulations of judicial courts at various levels and its jogeon (日本國聞見條件)≫, a report containing diverse information on Japan’s internal affairs. judicial process; Volume 4 is about legal procedure laws; Park interpreted Japan’s central political system as one based on the separation of the three Volume 5 describes prison laws; Volume 6 explains Siny- powers (administrative, legislative and judicial) and had a keen interest in the efficiency of ulgangryeonggeub Gaejeong Yeulyechwalyo (新律綱領及改定 administrative and bureaucratic systems, the judicial system, the police system, the military 律例撮要), which contains various new laws after the estab- system, and military power, while maintaining a negative view of expanding civil rights. lishment of the Criminal Law; and Volume 7 divides the revised penal code into 13 sets of rules.

Ilbonmungyeonsageoncho (日本聞見事件草) Eom Se-yeong argued that there were three fundamental principles of Japan- ese system reform: abolishing tor- ture, enforcing a convict system, and ensuring equal treatment before the law for all people regardless of their social status. Housed in the Seoul National University Kyujanggak In- stitute for Korean Studies.

Ilbongukmungyeonjogeon (日本國聞見條件) Ilbonsabeobseongsichalgi (日本司法省視察記) Housed in the Seoul National University Kyujanggak Institute for Korean Studies. Housed in the Seoul National University Kyujanggak Institute for Korean Studies.

14 15 Embracing Western Legal Knowledge

Internal Factors behind Embracing Modern Western Legal Knowledge Joseon was able to embrace western legal knowledge after it shifted its attention from a Sinocentric perspective to a worldview governed by international law. Although there are controversies over whether Joseon adopted western legal knowledge voluntarily or by force, Raising Awareness of Modern Judicial Systems the nation’s existing internal conditions were conducive to receiving modern western legal knowledge: a centralized political system, bureaucracy, the rule of laws and systems, the Laws and Trials in the Minds of Enlightened development of a commodity-money economy, and a general attitude among the people of Intellectuals of the Joseon Dynasty Joseon to stand fast in justice.

In the wake of Western powers’ advance into East Asia, enlightened “They are too quick to say ‘Let’s go to court’ even though intellectuals of Joseon strove to enhance national prosperity and the court is not a generous friend to the people.” strengthen defense. After learning about the modern legal concepts H. B. Hulbert, page 93, ≪The Passing of Korea≫ and principles of other countries, these intellectuals argued that Joseon required its own judges who were schooled in modern education, and that even the King should not be given the authority to exercise discretion in the punishment of offenders.

16 Embracing Western Legal Knowledge

16 ≪Chidoyakron (治道略論)≫ Park Young-hyo’s ≪Geonbaekseo by Kim Ok-gyun who Attempted to (建白書)≫, Written Petition to the King Modernize the Government System: on the Reform of Internal Affairs

The country needs a new law to put all minor 天降生民億兆皆同一而 offenders into forced labor, so that they 稟所不可動之通義 can repent for their misdeeds. However, 通義者人之自保生命求由希幸福也 it can only take effect when there is approval All people are born with inalienable and from the King and it can only start universal rights endowed by heaven: the right to when the study of law has been promoted. seek to protect their own lives, the right to seek freedom, and the right to seek happiness.

Kim Ok-gyun After returning from a trip to Japan for an official obser- Park Young-hyo designed Taegukgi, the flag of South Ko- Park Young-hyo 1851~1894 1861~1939 (金玉均, ) vation mission led by Park Young-hyo, Kim Ok-gyun ar- rea, while he was travelling on a ship to Japan to resolve (朴泳孝, ) Kim Ok-gyun was the leader of the Park Young-hyo was one of Joseon s gued that the initial step in enhancing national prosperity the Imo Incident in 1882. After returning to Joseon, Park ’ Gabsin Coup and an advocate for a radical enlightenment thinkers. He reform policy comprising 14 arti- and strengthening defense was to improve and maintain established Chidoguk (a government construction agency, is now listed as a pro-Japanese col- cles. He was assassinated in Shang- roads. He proposed the introduction of a patrol system 治道局), Gyeongsunguk (a police agency, 警巡局), and Bak- laborator. After the signing of the hai after 10 years of exile in Japan. Korea-Japan Annexation Treaty, he and a convict system in order to safeguard public morals munguk (Korea’s first modern government printing of- received the title of Marquis in Ja- and protect the rights and interests of the people. Kim also fice, 博文局). He sought refuge in Japan after the Gabsin pan and served as a member of the advocated the separation of local law enforcement and the Coup in 1882. In 1888, Park sent King Gojong a written House of Peers. judicial authority of judges, that is, he wanted to see the re- petition titled ≪Geonbaekseo≫ or ≪Mujasangso≫. form of the criminal justice system and the judicial system.

Chidoyakron (治道略論) Geonbaekseo (建白書) ≪Chidoyakron≫, written by Kim Ok-gyun in November 1882, was pub- In his petition to King Gojong, Park Young-hyo provided suggestions on lished in the 26th edition of (May 1, 1884) how to reform Joseon, with descriptions of 8 pressing tasks. Housed in the under the title “Chidogyuchik (治道規則).” Housed in the Seoul National Dong-A University Medical Library. University Kyujanggak Institute for Korean Studies.

18 19 ≪Chidoyakron (治道略論)≫ Park Young-hyo’s ≪Geonbaekseo by Kim Ok-gyun who Attempted to (建白書)≫, Written Petition to the King Modernize the Government System: on the Reform of Internal Affairs

18 19 13 Ways to Reform the Judicial Process Described in “Heungbeobgianminguk (興法紀安民國)” of ≪Geonbaekseo≫

The 8 tasks for national reform proposed by Park Young-hyo covered areas such as law, economy, defense, education, and politics. The first task was “Heungbeobgianminguk (stabi- lization of the people and the country through strengthening the rule of law)” composed of 13 detailed items, most of which were legislated during the Gabo Reform and the Eulmi Reform.

凡處訟과 及大小輕重之罪 는 只任判官裁之 하고 而不可以主權擅裁事 오 定懲役之法하고 設懲役場 하야 而非最重大之罪 면 The authority to try cases and impose punishment for crimes, whether minor or 不可殺之 오 并使之懲役事니이다 serious, should be given only to appointed judges and not to the monarch. An imprisonment law and prisons should be established. Unless the crime is grave enough to warrant the death penalty, judges should impose imprisonment with hard labor instead. 廢酷刑 하고 以保生命事오 Severe punishment should be abolished in order to protect lives. 廢捕盜廳 하고 而於巡廳 에 增削其規例하고 置警巡之士二萬 이면 則姑足以導民心 하고 察民情 하고 制强暴 하야 救窘急事오 廢孥戮之典하고 只治原犯하야 而不可及父母兄弟妻子之事 오 Abolish Podocheong (the police bureau) and assign 20,000 police officers to patrol divisions, Guilt-by-association (a system by which any person may suffer unfavorable treatment or so that they can maintain public order, curb any violence, and provide aid to the poor. punishment on account of an act not of his or her own doing but committed by a relative) should be abolished, so that only those directly responsible for wrongdoings 嚴禁宰相士大夫 로 以及庶民 히 各於私家用刑 하고 should be punished, while their parents, siblings, spouse, and children are immune from 而雖係自己之子弟奴婢 라도 必仰公裁事 오 any sort of punishment. High-ranking officials and noblemen are strictly prohibited from arbitrarily punishing ordinary people. Even if the law-breakers are their children or servants, they should be tried by judges. 拷問罪人하되 不可濫刑 하야 誣服其罪事오 Interrogators should not induce false confessions through improper coercion. 嚴禁宰相士大夫之行强暴於下類事오 High-ranking officials and noblemen are strictly prohibited from 凡大小輕重之罪 는 必히 彰明罪證而自服然後 에 可以繁獄處刑事니 oppressing or assaulting the people. 野鄙不開之國 은 人民이䌓繁獄被刑이라도 而不解自己之罪者多也 니이다 Imprisonment or execution should be imposed only after the person is 令人民貸償賣買 와 凡諸款約定文 에 務爲照詳 하고 found guilty based on evidence in a court of law. 兼捺名印하야 以便後訟 하고 而文證模糊者 는 不可聽訟事오 Courts of uncivilized countries often impose punishment on people who All terms and conditions of any rental or sales agreements should be defined in detail and are unable to present proof of their innocence. it should be ensured that the signatures and seals of all parties concerned are included, in preparation for any possible legal proceedings. No claim based on ambiguous documents 廢如捕廳之隱匿刑殺事 오 雖被刑殺者之父母兄弟妻子 라도 shall be recognized by the courts. 而不知其繁獄被殺 이면 豈非無法殘忍之政哉 아 Podocheong (the police bureau) arrests and executes people at random without informing 定貴賤人民之墓地于各處 하고 而禁埋于他 하야 以除山訟之煩 하고 their parents, spouse, children, and siblings, which is a lawless and cruel act. 又使後日之鑛務事오 Burial grounds shall be determined according to the respective social standing of 聽訟斷獄 은 不可秘之오 而許衆庶 하야 入場傍聽 이면 the deceased to prevent possible lawsuits. It should also be ensured that the burial grounds 則判官이 欲用酷容私者 라도 自減事 오 do not cause disruption to possible mining work in the future. Civil and criminal trials should not be conducted behind closed doors. In the presence of the general public, judges will not hand down excessive punishment or render a decision based on personal feelings.

20 21 13 Ways to Reform the Judicial Process Described in “Heungbeobgianminguk (興法紀安民國)” of ≪Geonbaekseo≫

凡處訟과 及大小輕重之罪는 只任判官裁之하고 而不可以主權擅裁事오 定懲役之法하고 設懲役場하야 而非最重大之罪면 The authority to try cases and impose punishment for crimes, whether minor or 不可殺之오 并使之懲役事니이다 serious, should be given only to appointed judges and not to the monarch. An imprisonment law and prisons should be established. Unless the crime is grave enough to warrant the death penalty, judges should impose imprisonment with hard labor instead. 廢酷刑하고 以保生命事오 Severe punishment should be abolished in order to protect lives. 廢捕盜廳 하고 而於巡廳에 增削其規例하고 置警巡之士二萬이면 則姑足以導民心하고 察民情하고 制强暴하야 救窘急事오 廢孥戮之典하고 只治原犯하야 而不可及父母兄弟妻子之事오 Abolish Podocheong (the police bureau) and assign 20,000 police officers to patrol divisions, Guilt-by-association (a system by which any person may suffer unfavorable treatment or so that they can maintain public order, curb any violence, and provide aid to the poor. punishment on account of an act not of his or her own doing but committed by a relative) should be abolished, so that only those directly responsible for wrongdoings 嚴禁宰相士大夫 로 以及庶民히 各於私家用刑하고 should be punished, while their parents, siblings, spouse, and children are immune from 而雖係自己之子弟奴婢라도 必仰公裁事오 any sort of punishment. High-ranking officials and noblemen are strictly prohibited from arbitrarily punishing ordinary people. Even if the law-breakers are their children or servants, they should be tried by judges. 拷問罪人하되 不可濫刑하야 誣服其罪事오 Interrogators should not induce false confessions through improper coercion. 嚴禁宰相士大夫之行强暴於下類事오 High-ranking officials and noblemen are strictly prohibited from 凡大小輕重之罪 는 必히 彰明罪證而自服然後에 可以繁獄處刑事니 oppressing or assaulting the people. 野鄙不開之國은 人民이䌓繁獄被刑이라도 而不解自己之罪者多也니이다 Imprisonment or execution should be imposed only after the person is 令人民貸償賣買 와 凡諸款約定文에 務爲照詳하고 found guilty based on evidence in a court of law. 兼捺名印하야 以便後訟하고 而文證模糊者는 不可聽訟事오 Courts of uncivilized countries often impose punishment on people who All terms and conditions of any rental or sales agreements should be defined in detail and are unable to present proof of their innocence. it should be ensured that the signatures and seals of all parties concerned are included, in preparation for any possible legal proceedings. No claim based on ambiguous documents 廢如捕廳之隱匿刑殺事 오 雖被刑殺者之父母兄弟妻子라도 shall be recognized by the courts. 而不知其繁獄被殺이면 豈非無法殘忍之政哉아 Podocheong (the police bureau) arrests and executes people at random without informing 定貴賤人民之墓地于各處 하고 而禁埋于他하야 以除山訟之煩하고 their parents, spouse, children, and siblings, which is a lawless and cruel act. 又使後日之鑛務事오 Burial grounds shall be determined according to the respective social standing of 聽訟斷獄 은 不可秘之오 而許衆庶하야 入場傍聽이면 the deceased to prevent possible lawsuits. It should also be ensured that the burial grounds 則判官이 欲用酷容私者라도 自減事오 do not cause disruption to possible mining work in the future. Civil and criminal trials should not be conducted behind closed doors. In the presence of the general public, judges will not hand down excessive punishment or render a decision based on personal feelings.

20 21 ≪Seoyugyeonmun (西遊見聞)≫ by Yu Gil-jun who Proposed Core Principles of the Gabo Reform

Inquiring into closed cases based on the new laws violates the principle of non-retroactivity of the law. To deal with crimes through penal laws yet to be promulgated is no different from punishing criminals in accordance with an unwritten penal code or common law, in a way that a monarchy with no written law would do. From “The Justice (公道) of the Rule of Law” in ≪Seoyugyeonmun≫

No individual but the law has the authority to take Yu Gil-jun another’s life; whether to condemn an individual (兪吉濬, 1856~1914) to imprisonment or death is all decided by the Yu Gil-jun was one of the radical en- law. Therefore, the individual who administers lightenment thinkers in Joseon, and was versed in foreign affairs. justice is merely an agent of the law. From “The Right to Life (身命)” in ≪Seoyugyeonmun≫

In 1881, Yu Gil-jun visited Japan as part of an official observation mission. He studied at the Keio Gijyuku (慶應義塾), founded by Fukuzawa Yukichi. In 1883, Yu enrolled in Seoyugyeonmun (西遊見聞) the Dummer Academy in the United States as the first Jo- A book about traveling in the west, written by Yu Gil-jun, a politician in the late period of Joseon. He first planned to write this book when he was seon student on a government scholarship. Unfortunately, in Japan in 1881 but actually started writing in 1885 during his confine- in 1885, he was forced to abandon his studies in America ment after returning from America and finished in 1889. It was in 1895 in the aftermath of the outbreak of the 1884 Gabsin Coup. when the book was finally published. ≪Seoyugyeonmun≫ covers a wide range of facts about the west, including information on geography, histo- He returned to Joseon through Europe, Southeast Asia, ry, politics, education, law, administration, economics, society, military, and Japan. local customs, science and technology, and academia. This book served as Yu Gil-jun was arrested immediately upon his return to the ideological basis for the Gabo Reform. Housed in the Korea University Museum. Joseon because of his close ties with the leaders of the Gab- sin Coup, and was sentenced to 7 years of confinement until 1892. In 1889, he completed ≪Seoyugyeonmun≫ and participated in the Gabo Reform. Yu believed that Joseon “Gwonri (權利)” or “Tongui (通義)” was faced with a pressing need to introduce a constitution- The terms “Gwonri” and “Gwon” are translations of the Eng- al monarchy, implement modern tax reforms and a new lish word “right,” first used in ≪Mangukgongbeob (萬國公法)≫ currency system, promote foreign trade, and revamp the (1864). This work is American missionary William Martin’s education system. After the signing of the Korea-Japan An- Chinese-translated version of ≪Elements of International Law≫ (1836), written by Henry Wheaton. Park Young-hyo’s nexation Treaty in 1910, the Japanese government offered ≪Geonbaekseo (建白書)≫ (1888) and Yu Gil-jun’s ≪Seoyugyeo- Yu the title of baron, which he declined. He focused his nmun (西遊見聞)≫ (1895) used the word “Tongui” instead of attention on teaching western law to students. “Gwonri.”

22 23 ≪Seoyugyeonmun (西遊見聞)≫ by Yu Gil-jun who Proposed Core Principles of the Gabo Reform

22 23 Popularization of Western Legal Knowledge

Modern Legal Concepts Awaken the People of Joseon Anyone who wishes to should be permitted to attend trials. And any decisions regarding lives and crimes should be made in an even-handed and fair-minded manner in the presence of judges and prosecutors. Popularization of Western Legal Knowledge Hanseoungsunbo, December 29, 1883 Newspapers during Korea’s enlightenment made a significant contribution in disseminating western legal knowledge to the general public. Hanseoungsunbo, the first modern newspaper Those who acknowledge their misdeeds should prove their sincerity by in Korea, founded in 1883, summarized the themes and key points of Joseon’s enlightenment demonstrating clear evidence in the court under the rule of law. Any person who policy in the 1880s and introduced a wide range of political and judicial systems from the stands before the court, no matter how favored he or she may be, should be west. Dokripsinmun (Independent News), Daehanmaeilsinbo (The Korea Daily News), Hwang- dealt with according to the law. If there is no clear evidence to prove the guilt of sungshinmun (Hwangsung Daily) and other modern newspapers also introduced advanced the accused, he or she should be set free regardless of antipathy toward the accused. western cultures and systems to their readers. As a result, the people of Joseon gradually Only then will the rule of law and discipline be respected. familiarized themselves with the modern ideas of freedom and equality as well as with the , Dokripsinmun, June 23, 1896 concept of trials. The purpose of the trial system is to have judges determine the accused’s guilt or innocence, and render a sentence based on absolute proof of guilt to appropriate penalties in accordance with the criminal code. Doknipsinmun, September 29, 1896

The right of freedom is endowed to every individual by heaven; to take way the right of freedom of others is to disobey the will of heaven, and to confer to others one person’s right to freedom is to overlook the will of heaven. Be wary and afraid of making such an error. Hwangsungshinmun, February 17, 1899

Every individual has his or her own dignity; every nation has its own sovereignty. The protection of the right of freedom of each individual is a prerequisite for the establishment of the national independence of a country. Daehanmaeilsinbo, October 11, 1905

Hanseoungsunbo Dokripsinmun Hwangsungshinmun

24 25 Popularization of Western Legal Knowledge

Hanseoungsunbo Dokripsinmun Hwangsungshinmun

24 25 Chapter 2

The foundations of the Korean modern judicial system were laid in 1895 with the enactment and promulgation of the . Joseon lost its judicial power in 1909 when the was signed, about a year before the signing of the Korea- Japan Annexation Treaty. The treaty forced Joseon to forfeit its national sovereignty. However, the Joseon people kept trying to rekindle the embers of hope for the legal profession of the country studying law and educating law students , . Background as to the Foundation of the Modern Judicial System

Types of Modern Laws and Regulations 28 Court Organization Law 30 Records and People under the Modern Judicial System of the Joseon Dynasty 37 Books on Legal Studies 46 Chapter 2

Types of Modern Laws and Regulations 28 Court Organization Law 30 Records and People under the Modern Judicial System of the Joseon Dynasty 37 Books on Legal Studies 46 Types of Modern Laws and Regulations

Various Forms of Laws and Regulations Legally-binding Official Documents: Uian (議案), Jochik (詔勅), and Jubon (奏本) Uian (bill) was a resolution proposed by Gungukgimucheo Imperial Order No. 1 (Deliberative Assembly, 軍國機務處), a group that led the In 1894, Imperial Order No. 1 was enacted. de- Gabo Reform in 1894. The issuance of Uian was based on fined different forms of laws and regulations, enactment procedures, and power structures. another bill titled , laws and regulations were divided into 7 categories: law, impe- Bangheon (national law)>. The Jochik (royal edict) was a rial order, Uijeongburyeong (Order of the Council of State), Kyeongmucheongryeong (Order royal decree or regulation, and also called as Wangji (royal ≪Buryeong (部令)≫ No. 1 of the Police Bureau), provincial order, regulation, and directive. Laws, regulations, and im- instruction) and Gyoji (royal instruction). Jubon (doctrine) Housed in the Seoul National Uni- versity Kyujanggak Institute for Ko- perial orders were established based on Uijeongburyeong or were drafted by public officials was a royal instruction drafted by public officials and ap- , rean Studies. elevated to Uijeongbu (Council of State), and approved by the king through prime ministers proved by the King through Uijeongbu (Council of State). (in accordance with Article 2 of ). There was no legislative body in Joseon and There was no basis regulation for Jochik and Jubon. the validity of, and priority among, laws and imperial orders were not clearly defined.

≪Jubon≫ Housed in the Seoul National Uni- versity Kyujanggak Institute for Ko- rean Studies.

Roughly 3,600 laws and regulations promulgated Much of what enlightened intellectuals in Joseon had envisioned became a reality through the Gabo and Eulmi Reforms. The Gabo Reform is characterized by changes in the judicial system: only authorized judges were allowed to impose punish- Gyeongjanguijeongjonan (更張議政存案) and ments and resolve civil dis- Gyeongjangjangjeongjonan (更張章程存案) putes through legitimate ≪Gyeongjanguijeongjonan≫ contains 210 items of Uian, including proceedings. Roughly 3,600 measures of the Gungukgimucheo (Deliberative Assembly) and ma- laws and regulations were Gongmunsik jor government reforms. ≪Gyeongjangjangjeongjonan≫ is a compila- promulgated over 16 years Imperial Order No. 1 was promulgated in 1894. Housed in tion of 20 regulations and ordinances in ≪Gyeongjanguijeongjonan≫. from 1894 until the signing the Seoul National University Kyujanggak Institute for Korean Studies. Housed in the Seoul National University Kyujanggak Institute for Ko- of the Korea-Japan Annexa- rean Studies. tion Treaty in 1910.

28 29 Types of Modern Laws and Regulations

≪Jubon≫ Housed in the Seoul National Uni- versity Kyujanggak Institute for Ko- rean Studies.

28 29 Court Organization Law

Promulgation of the Establishment of Five Types of Courts The stipulated that there were 5 different types of courts: district courts, courts in open ports (of Hansung, Incheon, and other cities), circuit courts, the high Enactment of the court, and the special court. District courts were allowed to have branches. The Minister of The first challenge in establishing a modern judicial system was to develop a unified judi- Justice had the authority to decide the location and jurisdiction of each court. cial system and ensure the independence of the judicial branch. With the enactment of the on April 19, 1895, Joseon began to modernize its judicial system: 5 different types of courts and 2 levels of trial courts were established. The bar examination system was also introduced, so that only qualified judges were allowed to conduct trials.

Proclamation of the This law is Korea’s first modern law. Housed in the Seoul National University Kyujanggak Institute for Korean Studies.

Office building of Hanseongbu (Seoul Magistracy) This was the government office in charge of administrative and judicial affairs of Seoul. This photo is from ≪Joseon Period≫ by 30 31 Seomundang Publishing Company. Court Organization Law

Proclamation of the This law is Korea’s first modern law. Housed in the Seoul National University Kyujanggak Institute for Korean Studies.

Two Levels of Trial Courts Appointment of Judges based on Bar Examination Regulations The stipulated that there were 5 different types of courts and 2 The Court Organization Law included bar examination regulations for qualified judges to different levels of trial courts: lower courts and higher courts. Lower courts included district preside over trials. Unlike other courts, the rulings of the high court and special court were courts and courts in open ports of Hansung, Incheon and other cities. In principle, lower made by multiple judges in a collegiate system. Due to the delay in the set up of circuit courts court trials were presided over by judges. Meanwhile, higher courts were comprised of the and other courts — 3 open port courts and 20 district courts were established on January 20, high court and special courts. The high court only tried cases that appealed against the rul- 1896 — and a lack of qualified judges and prosecutors, temporary courts were established in ings made by the Hansung District Court and Incheon Court. Circuit courts were open from administrative office buildings and local governors were temporarily allowed to act as judges March to September each year in places designated by the Minister of Justice. The special and prosecutors. court dealt with criminal cases involving royal families. Rulings made by the special court were not challengeable on appeal.

① Article 14 Judges and prosecutors for each court (open port courts of Hansung, Incheon, and other cities) shall be applicants who passed the bar examination, screened by prime ministers, recommended by the First Level of Second Level of Single Minister of Justice, and appointed by the King. Courts Courts Trial System ② Article 56 Hansung District Court High Court Special Court Local governors shall be temporarily allowed to act Established in Seoul; dealt with (collegiate system) (collegiate system) as judges and prosecutors of district courts regard- both criminal and civil cases Dealt with cases that Dealt with criminal cases less of whether or not they have taken the bar ex- appealed against the involving royal families; amination. rulings made by open port not challengeable on appeal Open Port Court courts of Seoul and ③ Article 60 Established in open ports of Incheon, Incheon Regulations shall be established for administering Wonsan, Busan, and other cities; dealt examinations to appoint qualified judges. with criminal and civil cases involving ① ② ③ Joseon citizens and foreigners Circuit Court Dealt with cases that appealed against the rulings District Court made by open port courts of Wonsan and Busan as well Established in each district; , dealt with both criminal and as those by district courts Separation between Trial Work and Administrative Work civil cases Along with the promulgation of the , and were enacted to define the scope of work of court officials and to separate between trial work and administrative work. All trials were public trials.

32 33 Court Organization Law

Upheavals in the Judicial System New Version of the The , revised on December 23, 1907, is also known as the Japan- \ Korea Treaty of 1907. The revised law made Joseon a semi-colony of Japan. Joseon’s judicial Complete Revision of the system was reshaped according to the Japanese system: 4 types of courts (supreme court, Following the Declaration of the Korean Empire appellate courts, local courts, and district courts) and 3 levels of trial courts. Japanese nation- The declaration of the Korean Empire in 1897 led to the revision of the on May 30, 1899. Key revisions are as follows: (1) The high court changed its name to Japanese judges and prosecutors were appointed in February 1908. All heads of each level Pyeongniwon (supreme court, 平理院) and expanded its role to deal with cases that appealed of court and the Public Prosecutors’ Office and the majority of judges and prosecutors were against the rulings made by any district courts and open port courts. Unlike the high court, Japanese. which had no full-time employees since it was not a permanent body, Pyeongniwon had full- time employees. (2) The revised law allowed the establishment of temporary courts in local government office buildings and permitted local governors to act as judges and prosecutors.

Complete revision of the Daesimwon (Supreme Court) building The revised comprising 66 Articles was retrogressive in compari- In 1908, Daesimwon (大審院) was the equivalent of today’s Supreme Court. Japan son with the original version established in 1895, which had stipulated the separation of the later changed its name to High Court in order to downgrade its status and to judiciary and administration. Moreover, the new version strengthened the intervention of the distinguish it from Japan’s Daesimwon. The current whereabouts of this photo emperor and the Ministry of Justice in trials. Housed in the Seoul National University Kyujang- is unknown. gak Institute for Korean Studies.

34 35 Court Organization Law

Loss of Judicial Power Results in Establishment of the Courts of the Korean Residency-General

Reality of the Modern Judicial System Signing of Joseon lost its judicial power when it signed the with Japan on July 12, 1909, about a year the Modern Judicial System of the Joseon Dynasty before the signing of the Korea-Japan Annexation Treaty, which forced Joseon to forfeit its national sovereignty. With the promulgation of the Courts of Korean Residency-General Law by Japan on October 16, 1909, all courts of Joseon and the Ministry of Justice were abolished, and all laws on the judicial and prison systems were repealed. On November 1, 1909, the courts of the Korean Residency-General were established and Joseon lost its judicial sovereignty.

Trial records in modern times are valuable resources in the study of upheavals in the modern judicial system. For the first time in the history of Korea, the judiciary and administration were separated and new courts as well as judges and lawyers emerged. Trial records, legal professional training system, and law as an academic discipline at the time reflected the important role of the justice system.

기기기기(己酉覺書) 사사 사 사사사사사 사사사 사사사사사 사사사사. 사사사사사Giyugakseo 사사사사사사사사사 사사 This memorandum stipulated that Joseon entrusted Japan with full control of its judicial function and prison system. Housed in the Seoul National University Kyujanggak Institute for Korean Studies.

36 Court Organization Law

Loss of Judicial Power Results in Establishment of the Courts of the Korean Residency-General

36 Civil and Criminal Lawsuit Regulations Enactment of the

Fair Trial based on Impartial Process and Clear Formality Established based on the Modern Judicial System

The Ministry of Justice Ordinance No. 3 was promulgated on April 29, 1895, which defined the formalities and procedures regarding tri- The source of civil and criminal laws in the late Joseon period were ≪Daejeonhoetong (大典 als. At that time, neither public officials nor the general public were familiar with how trials 會通)≫ and ≪Daemyengryul (大明律)≫. King Gojong urged the establishment of civil and crimi- worked. Subsequently, supplementary regulations were enacted, including the , a reform guideline. Disposition Regulations>, the , the , a modern-style law book comprised of cial Scriveners>, and the . On June 27, 1907, the and the were legislated. In 1908, the related parts were deleted to complete a criminal code. was promulgated to align regulations regard- Right after the promulgation of , King Gojong also urged the reform ing civil cases with those pertaining to criminal cases. of poorly-established civil laws, issuing the in 1909. Civil Code>, but his plans did not see fruition. As a result, the was replaced by the , a Japanese Imperial Order, imposing Japanese civil and criminal laws and regulations on Joseon.

Civil Trial Procedures

Appellate Court Lower Court

1. Filing a lawsuit 1. Filing a lawsuit The plaintiff and the defendant file a lawsuit within The plaintiff accepts a complaint. The defendant files a 15 days of the original court decision. (The period is complaint. A reply to the complaint should be submitted to be extended only when there is no circuit court held within 15 days of the receipt of the complaint. during this period.) 2. Legal representation 2. The execution of the original decision is Minors under the age of 20 are permitted to use a legal suspended until the appellate court makes representative with the permission of the court. a ruling. 3. Trial process 3. The original trial records are forwarded Lawsuits are conducted in the order of application. All to the appellate court. statements made in the court should be recorded. The court records should be signed/sealed by the judge(s) 4. The trial is conducted in accordance with and court clerk(s). the trial procedure of the lower court. 4. Litigation costs & execution is the most comprehensive law book compiled in the late Jo- All litigation costs are borne by the losing party. Once seon period, encompassing traditional laws and reform laws. It is also the first to be the winning party submits a written order of execution to written in both Korean and Chinese. The book lists general rules about how a crime the competent court, court officials finalize the execution is defined and different types of punishment, and provides detailed provisions re- proceedings. garding each type of crime. Housed in the Seoul National University Kyujanggak Institute for Korean Studies.

38 39 Civil and Criminal Lawsuit Regulations Enactment of the

Fair Trial based on Impartial Process and Clear Formality Established based on the Modern Judicial System

Civil Trial Procedures

Appellate Court Lower Court

38 39 Trial Records and Written Judgments

Trial Records in the Late Joseon Period

Criminal Trials in the Late Joseon Period— Case of Jeon Bong-jun (1894~1895) Jeon Bong-jun was arrested on December 2, 1894 in Taein and transferred to Seoul. He was interrogated in a temporary court established in the building of the Ministry of Justice. On March 29, 1895, Jeon was sentenced to death along with Sohn Hwa-jung, Choi Gyeong-seon, Seong Du-han, Kim Deok-myeong, and other leaders of the Donghak Peasant Revolution. The penal law under the fifth volume of ≪Daejeonhoetong (a code book)≫ that reads “Anyone who provoked an uprising against the government is subject to immediate execution,” served as Written judgment issued by the basis for the ruling. the high court on April 10, 1895 This is a written judgment issued by the high court for the first time since the promulgation of the Court Gongcho (供草) of Jeon Bong-jun < Organization Law>. According to the This is the interrogation record of Jeon Bong-jun, comprised of 275 sets of document, the Defendants were questions and answers. The third interrogation was conducted by staff of tried on the charge of disturbing the the Japanese consulate in Joseon. The records show that Jeon attempted to peace of the country by joining the protect his comrades and take sole responsibility for the uprising. Housed Donghak Party. However, they were in the Seoul National University Kyujanggak Institute for Korean Studies. released due to lack of evidence. Housed in the National Archives of Korea.

First written criminal judgment issued by Hansung District Court on April 26, 1895 This is the oldest written criminal judgment issued by Hansung Dis- trict Court. According to the document, the Defendant, who lived in Written judgment of the Jeon Bong-jun Case Sabeobpumbo (司法禀報) Seoul, was charged of injuring a The temporary court under the Ministry of Justice sentenced Jeon to death on This is a collection of all official documents that government offices and police officer while under the influ- April 23 1895 Housed in the National Archives of Korea district courts across the country sent to the King Emperor of Joseon be- , . . / ence of alcohol. He was sentenced to tween 1894 and 1907 It also contains reports on the executions of Jeon . a flogging of 80 lashes. Housed in and his comrades Housed in the Seoul National University Kyujanggak . the National Archives of Korea. Institute for Korean Studies.

40 41 Trial Records and Written Judgments

Trial Records in the Late Joseon Period

40 41 Trial Records and Written Judgments

Written Civil Judgment Issued by Civil Trials in the Late Joseon Period Hansung District Court (September 1, 1895) — Case of a Land Contract Involving This is the written civil judgment No. 89, regarding the a Japanese National (1908) case of the Plaintiff and 1 other. After questioning the In March 1908, Nakagawa Ryo, a Japanese citizen living in Plaintiff and the Defendant in each other’s presence, Judge Busan, filed a petition to confirm a land contract between Kim Gi-ryong of Hansung District Court decided on Sep- himself and Shin Jong-ho for the purchase of 3,000 majigi tember 1, 1895 that the Defendant had no obligation to (a Korean measure of farmland equivalent to approximate- accept the Plaintiff’s demand and that the Plaintiff should ly 0.16 of an acre). Since a revenue stamp was attached to pay all litigation costs incurred by the Defendant. This the contract, the judge decided that this should be formally written judgment shows the standard format of written accepted by the government. This ruling was related to the civil judgment used by Hansung District Court. in 1907, which had provisions re- Legal document for lawsuits garding scrivener’s fee, and the , which had provisions regarding revenue stamp the late Joseon period (1899) (Milyang County) for cases The standard format of legal docu- charges. involving litigation costs ments was defined in 1895— it was In 1906, the Korean Residency-General established and of over 200 Korean won a white paper with 10 vertical rules. enacted the (December 1907~April 1908) Each rule could contain no more This document shows the entire than 20 characters Although the and the to allow Japa- . process of litigation, from lawsuit general public was also required nese citizens to purchase land in Joseon. filing to ruling and execution pro- to use the standard format non- , ceedings. Housed in the Supreme standard formats were used on Court Library of Korea. occasion. Housed in the Supreme Court Library of Korea.

Written civil judgment issued by Written petition Legal document written in Written judgment Hansung District Court Housed in the Supreme Court both Korean and Chinese Housed in the Supreme Court Housed in the Judicial Archives Center. Library of Korea. Housed in the Supreme Court Library of Korea. Library of Korea.

42 43 Trial Records and Written Judgments

42 43 Training Legal Professionals

First alumnus of the Legal Korea’s First Legal Professionals Introduction of the Attorney System First registered lawyer Training School and Korea’s First Registered Lawyer in Korea, Hong Jae-gi Ham Tae-yeong (1873~1964) (1873~1950) In Joseon, lawyers in the western world were called “song- Ham Tae-yeong filled various gov- In 1896, Hong Jae-gi entered Baek- ernment posts including assistant Establishment of the Legal Training School sa.” With the enactment of the in April 1895, the representative (or ment scholarship and graduated Court, prosecutor of the high court, In March 1895, the Legal Training School, a government- agent) system was introduced to Joseon. Representatives from Tokyo Law School. He filled prosecutor of Pyeongniwon (Su- various government posts includ- preme Court), a member of the Com- owned short-term legal training institute, was established (or agents) were commissioned by litigants to proceed with ing stints as a lecturer at Bosung mittee of Drafting Legal Codes, under the Ministry of Justice in line with the growing de- lawsuits, so it is fair to say that they were lawyers in Jo- College, a member of the judge of Daesimwon (Supreme Committee of Drafting Legal Codes mand for trained legal professionals after the enactment seon In September 1897 the Ministry of Justice legislated , Court), and judge of the court of . , the Head of the Legal Training review. He resigned after Joseon of the . In the same year, Ham the to help smooth le- School, and a member of the Bar signed the Annexation Treaty with Tae-yeong and 46 other alumni graduated from the Legal gal procedures. Examination Board. In 1907, Hong Japan in 1910. was appointed a judge of Hansung Training School following a 6-month training. They were A western-style attorney system was first introduced to District Court and then became a the first graduates of the school. And, in the subsequent Joseon on November 8, 1905 when the was enacted. This law consisted of 35 Articles, defin- cember 1907, he resigned at his own request and became Korea’s first professionals completed the program. In November 1909, ing the requirements and duties of a lawyer and the Law- registered lawyer on December 30, the Legal Training School was transferred to the Ministry yer’s Association. With the establishment of the , Korea’s first bar examination was ophakyo (Law School) and then to Gyeongseong Training administered on June 24, 1907. However, Joseon lost its School in August 1910. judicial power to Japan in 1909 and the was abolished in October of the same year.

Graduation report card of the first alumnus of the Legal Training School Housed in the Seoul National Uni- versity Kyujanggak Institute for Ko- rean Studies.

The training period at the Legal Training School was 6 months to 3 years. The en- trance examination covered various subjects including reading, writing, mathemat- ics, Korean history, and Kor- ean geography. The school’s curriculum consisted of civil codes, criminal codes, legal procedure laws, Class schedule of the Legal Training School Newspaper advertisement for Newspaper advertisement Ming codes, ≪Daejeonhoe- Housed in the Seoul National University Kyujanggak for a lawyer training program announcing the opening of a tong≫, ≪Muwonrok≫, civil/ Korean Studies. The Daehan Maeilsinbo (The Korea new law office criminal law suit documents, Daily News), February 21, 1905. The Daehan Maeilsinbo (The Korea etc. Daily News), July 6, 1906.

44 45 Training Legal Professionals

Graduation report card of the first alumnus of the Legal Training School Housed in the Seoul National Uni- versity Kyujanggak Institute for Ko- rean Studies.

44 45 Books on Legal Studies

Legal Professionals who Served the Nation Mission of Modern Legal Professionals In 1908, Choi Seok-ha explained the mission of modern legal professionals: “The law of Joseon was established not Modern Legal Studies by sovereign order but by a foreign power, so it is inap- Even after the Courts of the Korean Residency-General were established and Japan took propriate to call this Joseon’s law. … The responsibility of full control of Joseon’s judicial system, former students of the Legal Training School and legal professionals in Joseon is not to interpret the country law students studying abroad continued to conduct legal research and teach law to younger and law in the real world but to create a country and law in students. One of the reasons for these efforts was to help Joseon achieve independence from an ideal world.” Japan and actually contributed greatly to the development of a legal foundation for Korea after its liberation. Heonbeob (Constitution, 憲法) This book was written by Yu Chi- hyeong in 1908. Housed in the Ko- rea University Library.

Haengjeongbeob Daeui (行政法大意) This book was written by Jang Heon- sik in 1908. Housed in the Korea University Library. Beobhaktongron (法學通論) Legal Association Magazine (法學協會雜誌) and This is Korea’s first introduction to law published in 1910. The author is Yu Seong-jun Yaroe (夜雷) (1860~1934), younger brother of Yu Gil-jun. Housed in the Korea University Museum. ≪Legal Association Magazine≫ was founded by Jang Do in Novem- ber 1908, and ≪Yaroe≫ by Oh Yeong-geun in February 1907. This photo is from ≪Independence Movement (Vol. I)≫ by Seomundang Publishing Company.

46 47 Books on Legal Studies

46 47 Bibliography

Statue of Haetae in front of Article 10 of the Ganghwa Treaty Place where the Ganghwa Ilbonsabeobseongsichalgi Ilbonmungyeonsageoncho Chidoyakron (治道略論) Gwanghwamun Housed in the Record Office of Treaty was negotiated (日本司法省視察記) (日本聞見事件草) Kim Ok-gyun (1851~1894) Housed in the Independence Hall the Japanese Ministry of Foreign Housed in the Seoul National Uni- Eom Se-yeong (1831~1890) Eom Se-yeong (1831~1890) Housed in the Seoul National Uni- of Korea. Affairs (photo taken in coopera- versity Kyujanggak for Korean Housed in the Seoul National Uni- Housed in the Seoul National Uni- versity Kyujanggak Institute for tion with the Diplomatic Archives Studies. versity Kyujanggak Institute for versity Kyujanggak Institute for Korean Studies. of the Ministry of Foreign Affairs Korean Studies. Korean Studies. of Korea).

Simhaengilgi (沁行日記) Bobingsa: an envoy team to the Gongbochoryak (公報抄略) Geonbaekseo (建白書) Seoyugyeonmun (西遊見聞) Imperial Order (勅令) Shin Heon (1810~1884) United States in 1883 Kim Gyeong-su (1818~?) Park Young-hyo (1861~1939) Yu Gil-jun (1856~1914) Housed in the Seoul National Uni- Housed in the Korea University Housed in the Korea University Housed in the Korea University Housed in the Dong-A University Housed in the Korea University versity Kyujanggak Institute for Library. Museum. Library. Medical Library. Museum. Korean Studies.

Cheonjindamcho (天津談草) Kimchongri Yugo (金總理遺稿) Ilbongukmungyeonjogeon Gyeongjanguijeongjonan Gyeongjangjangjeongjonan Buryeong (部令) Kim Yun-sik (1835~1922) Kim Hong-jip (1842~1896) (日本國聞見條件) (更張議政存案) (更張章程存案) Housed in the Seoul National Uni- Housed in the Seoul National Uni- Housed in the Korea University Park Jeong-yang (1841~1905) Housed in the Seoul National Uni- Housed in the Seoul National Uni- versity Kyujanggak Institute for versity Kyujanggak Institute for Library. Housed in the Seoul National Uni- versity Kyujanggak Institute for versity Kyujanggak Institute for Korean Studies. Korean Studies. versity Kyujanggak Institute for Korean Studies. Korean Studies. Korean Studies.

48 49 Bibliography

Jubon (奏本) Beopryul (法律) Office building of Hanseongbu Written judgment issued by the First written criminal judgment Legal document for lawsuits Housed in the Seoul National Uni- Housed in the Seoul National Uni- (Seoul Magistracy) high court issued by Hansung District regarding burial grounds in the versity Kyujanggak Institute for versity Kyujanggak Institute for ≪Joseon Period≫, photo by Seo- Housed in the National Archives Court late Joseon period Korean Studies. Korean Studies. mundang Publishing Company. of Korea. Housed in the National Archives Housed in the Supreme Court of Korea. Library of Korea.

Daesimwon (Supreme Court) Giyugakseo (己酉覺書) Hyeongbeob Daejeon (刑法大全) Written civil judgment issued by Written complaints and Legal Training School building Housed in the Seoul National Uni- Housed in the Seoul National Uni- Hansung District Court judgments in Milyang-gun Regulations Whereabouts unknown. versity Kyujanggak Institute for versity Kyujanggak Institute for Housed in the Judicial Archives (Milyang County) for cases Housed in the Seoul National Uni- Korean Studies. Korean Studies. Center. involving litigation costs of over versity Kyujanggak Institute for 200 Korean won Korean Studies. Housed in the Supreme Court Library of Korea.

Written judgment of the Jeon Gongcho (供草) of Jeon Bong-jun Sabeoppumbo (司法禀報) Beobhaktongron (法學通論) Heonbeob (憲法) Haengjeongbeob Daeui Bong-jun Case Housed in the Seoul National Uni- Housed in the Seoul National Uni- Yu Seong-jun (1860~1934) Yu Chi-hyeong (1877~1933) (行政法大意) Housed in the National Archives versity Kyujanggak Institute for versity Kyujanggak Institute for Housed in the Korea University Housed in the Korea University Jang Heon-sik (1869~1950) of korea. Korean Studies. Korean Studies. Museum. Library. Housed in the Korea University Library.

50 51 Bibliography

50 51 Introduction to the Judicial History Materials Exhibition

History of Laws and Courts based on Historical Documents Judicial History Materials Exhibition

The Supreme Court Library of Korea collects law- and court-related materials held by relevant organizations and receives private donations, to manage, pub- lish, and display them as judicial history materials. As a part of such effort, the Printed June 2016 Supreme Court Library hosts the Judicial History Materials Exhibition to intro- Published June 2016 duce the Korean judicial history and shed a new light on the value of law. It is Published by Supreme Court Library of Korea 219 Seocho-daero, Seocho-gu, Seoul (06590) our hope that the exhibition would be an opportunity for the public to deepen Tel 02·3480·1575 understanding of the Korean legal culture and for the court to reach out to the http://history.scourt.go.kr public. We look forward to your interest and participation. Produced by Design Wood&Fish 22-gil, 22 Jinheung-ro, Jongro-gu, Seoul (03013) Tel 02·3296·3746 Photography Space Balance, Inc. (02·541·4919) Judicial History Materials Exhibition Printed by Micom Art Printing

Date December of every odd year Place Supreme Court of Korea Copyright© 2016 Supreme Court Library of Korea Exhibition Themes All rights reserved. No part of this volume may be reproduced in any form or by any Laws and Trials of the Japanese Colonial Era (2015) means without authorization. Laws and Trials in the Late Period of the Joseon Dynasty - Dawn of Modern Judiciary (2013) Copyrights to the photographic materials in this publication belong to their respective Laws and Trials of the Joseon Dynasty (2011) owners. Introduction to the Judicial History Materials Exhibition

History of Laws and Courts based on Historical Documents Judicial History Materials Exhibition