<論説>植民地朝鮮における離婚訴訟と朝鮮民事令 : 一九一〇年代を中心に

Abstract

一九一二年から施行された朝鮮民事令は、朝鮮人間の民事事件については原則的に明治民法を依用すると規定したが、親族・相続については例外的に朝鮮の「慣習」によることとした。本稿では親族・相続のうち離婚訴訟に焦点を当て、慣習調査事業によって植民地当局が把握した朝鮮の離婚慣習や、離婚訴訟に対する裁判所の態度などについて分析した。その結果、(1)植民地当局は当初、朝鮮の慣習では妻は夫に離婚を要求することができないと認識していたが、民事令施行前から裁判所には妻を原告とする離婚訴訟が提起され、裁判所ではその訴えを審理し、場合によっては勝訴判決を下していたこと、(2)民事令施行後、妻の離婚請求権が大きく争われた事件に対し、裁判所は先例を援用しつつ民事令の下でも妻の離婚請求権を認める判決を下していたことなどを明らかにした。つまり、法規定と実際の法運用との間には乖離が見られたわけである。このような乖離は中枢院会議などを経て一九二二年一二月、民事令の改正を通じて解消されることとなる。

In considering the relationship between the people and the law in colonial Korea, an examination of the divorce suits has particular significance. First, the colonial authorities did not regard the problem of divorce as merely a matter of civil affairs but considered it as related to the issue of criminality. Second, the problem of divorce in colonial Korea was seen as a problem that was intimately related to the legal affairs in Japan. Third, the problem of divorce became a topic that was taken up outside the courtroom, in public lectures and in the publication of novels. On the basis of this understanding of the problem, this article elucidates the following points. Through their nation-wide project of examining social customs in order to establish the civil law, the colonial authorities arrived at the understanding that Korean custom did not recognize the right of a woman to seek a divorce (section one). However, at nearly the same time, divorce suits were being brought before the courts by wives, the courts accepted the suits, and on occasion the women won favorable verdicts (section two). In April, 1912 the Chosen Civil Affairs Ordinance (Jp. Chosen minji rei, K. Joseon minsa ryeong) went into effect in Korea. It stipulated that divorce between Koreans was to be "according to custom." As a result, whether a wife had the right to seek a divorce became a major point of contention, and the courts issued judgments recognizing the right of a wife to seek a divorce, citing legal precedent. At the time numerous divorce cases were brought before the courts by wives who had suffered multiple or prolonged abuse, insult, hostile abandonment, or imprisonment by their husbands (section three). After the institution of the law, the authorities continued their investigations on the custom of divorce, and as a result confirmed that in recent years wives in Korea had become able to seek a divorce. Moreover, the committee for the investigation of ancient customs and systems, which had been established in April, 1921, found that not only had the right of wives to seek a divorce come to be recognized in the previous ten years, but also confirmed that the courts were issuing judgments that recognized a wife's right to seek a divorce. In this context, the authorities began to consider revision of the regulations concerning divorce in the Chosen Civil Affairs Ordinance from the end of 1921, and in September, 1922 the Committee for the Revision of the Chosen Civil Affairs Ordinance and People's Household Registers decided to apply Japanese civil law in regard to divorce between Korean couples (section four).