大韓民國臨時政府의 國際法的 地位와 大韓民國의 國家的 同一性 (上)

Between Korea and Japan, there is an acute controversy with regard to the legality of the Japanese forceful occupation and ruling of Korea from 1910 to 1945. It goes without saying that this controversy is directly connected with the problem whether the so called "Annexation Treaty" and other treaties concluded between the two state before 1910 were valid ones or not. According to the answer to this question, further complicated legal problems may arise: when was the Republic of Korea established as a State; when did the Korean Empire cease to exist; is the Republic of Korea established at Shanghai on 1919 and the present Republic of Korea legally identical; is there legal identity or continuity between the Korean Empire and the Republic of Korea. To answer all these legal problems, inquiring and reviewing the international legal status of the Provisional Government of the Republic of Korea is indispensable. In order to determine the international legal status of the Provisional Government of the Republic of Korea, we should know whether it could be said to have been a "effective government" which is a necessary element of State under international law. In particular, it is necessary to look at the reality of its armed struggles against Japan to acquire independence because it had the character of "a government in exile" established in foreign territory without the legal procedure of election by the people. Since its establishment at the Shanghai, the Provisional Government had carried out many kinds of governmental activities in the fields of domestic administration, military affairs and diplomacy. The contents of its use of governmental power in the field of domestic administration are two: Communication Bureau(Kyotongkuk) and Connection System(Yeontongje). The Communication Bureaus were organized at Manchuria, Pyungan Province, Hamkyung Province, Hwanghae Province and Seoul. Its original missions were communication and transportation. However, it also engaged in raising funds, collecting intelligence and transport and custody of weapons and ammunition. The Connection System indicates local administration organizations within the territory of Korea. It had been used for transmission of laws and ordinances and official documents, continuation of demonstration for the independence, recruitment of military personnel, invitation of financial supports, issuance of governmental bonds and communication. The System had been enforced in the area of Hwanghae Province, Pyungan Province, Hamkyung Province, Kyungki Province and the part of Chungchung Province. The Provisional Government's activities as a government was without limitation: it had continued not so long period of time and not fully deployed all over the territory. However, it may be counted as important achievements of Provisional Government's activities as a government. Concerning the military activities, the Provisional Government had the regular system of supreme command over the army. Though it could not assemble all the Korean military capacities existed abroad as in the Siberia and Manchuria, the early Provisional Government always were the center of the armed struggles against Japan in the Manchuria area. In addition, it planned and carried out the military education from the early times. At the same time, it trained airplane pilots in the United States. Especially, the Provisional Government organized and operated "Independence Restoration Army"(Kwangbokun) as government army. Owing to the strong limitations and control by Chinese government, for a long time, Independence Restoration Army had remained in the status as if it had been a part of Chinese army. However, just before the unconditional surrender by Japan, it recovered the status as an army of the Provisional Government. At the same time, its military command power also was secured which was supposed to be used when it began its operation of dashing into the Korean territory. When the Pacific War broke out, the Provisional Government declared war against Japan and sent some military personnel of the Independence Restoration Army to a English military unit in India. United States Office of Strategic Service also made special training to Koreans belonging to the Independence Restoration Army to prepare for the military operations within the Korean territory in the future. To the Provisional Government's regret, however, Japan made their surrender before this plan had the chance to be realized.