개화기 보증채무 소송사례 평석- 1905~1910년 漢城裁判所및 平理院민사판결서 중 尹相五와金宗漢의 분쟁을 중심으로-

In Early Modern Korea, there existed surety liabilities and disputes over them as with current. Of all civil cases about surety liabilities, it is worth analyzing the judgment documents written in Hanseong Court(漢城裁判所) and Supreme Court(平理院) over a dispute between Yun Sango(尹相五) and Kim Jonghan(金宗漢) from 1905 to 1910. Yun Sango, a farmer, was in guaranteed debt of 12 million nyangs(a unit of old Korean coinage), which Kim Yohun, a county governor, borrowed from Kim Sungjin, an another county governor. Yun Sango's father pledged his rice fields of 93 suk(石) to secure Kim Yohun's debt. Kim Jonghan, a minister, performed a third-party repayment by subrogation of relevant rice fields. Yun Sango's father entered into a repurchase agreement with Kim Jonghan. After his father's death, Yun Sango claimed Kim Jonghan the performance of refund contract of a purchase and he exercised his right to indemnity over Kim Yohun, the principal obligor. Finally, Yun Sango won his case. This judgment acknowledged the meaning of surety liability and its appendant nature and supplementary nature in Early Morden Korea. The liability of a person to take surety on an object/property, repayment by the third parties, and subrogation were also acknowledged. Above all, it is worth paying attention to Supreme court’s legal judgment that Yun Sango could have a right to exercise his refund right of a purchase over Kim Jonghan, since the contract was not cancelled when a refund contract of a purchase was returned without any intent of contracting parties. In addition, it should be noticed that a plaintiff of a farmer filed a case of huge litigation cost against a defendant of a minister and won the case. Theses findings support that the society in the time of enlightenment had positively developed by the introduction of new-style trial system. ‘Customs’ about surety liability and refund of a purchase stipulated by Custom Inspection Report(慣習調査報告書) of the last Japanese Empire were different from civil common law shown by real civil disputes and civil judgement document. Therefore, precise review over the Custom Inspection Report should be conducted.