일제강점기 조선의 가독상속(家督相續) 관습

This study examines the custom of inheritance of the family headship(家督相續) in Joseon during the Japanese colonial period. Under the Meiji Civil Code, hereditary succession mandated that the household head inherited all rights and obligations related to the patrimony while inheriting the patrimony. In particular, the patrimony accompanying the headship was transferred in its entirety to the successor. Consequently, within this system, the patrimony was inherited undividedly by the new head, and the decedent's ‘identity’ as the family head was thereby conferred upon the successor. In a 1913 ruling by the Joseon Supreme Court, the legal doctrine concerning inheritance of the family headship(家督相續) during the colonial Korea was elucidated. The ruling held that “the entire estate of the decedent is initially vested in the ancestral successor(祭祀相續人), while other men recorded in the genealogical register possess only the right to require the ancestral successor to distribute a proportional share of the estate; hence, ownership of the estate is not acquired automatically at the moment succession commences, but rather through its distribution.” In this context, the fact that the entire estate is vested in the ancestral successor is defined as Jeongye(傳係), while the right of the other men heirs to claim their share is referred to as Hwahoe(和會). Furthermore, in instances where these rights are violated, state intervention to effectuate an equitable distribution is known as Gwanjakjaeju(官作財主). Thus, the Joseon Supreme Court recognized ancestral succession—characterized by Jeongye(傳係)— as a customary form of inheritance of the family headship(家督相續). In colonial Korea, the explicit provisions for inheritance of the family headship set forth in the Meiji Civil Code were not directly adopted; instead, the underlying Jurisprudence of inheritance of the family headship was applied. Under the Meiji Civil Code, inheritance of the family headship centered on the succession of the household head, whereby all associated rights and obligations were transferred to the head, and consequently, the estate was conveyed as an ancillary effect. In contrast, inheritance of the family headship in Joseon was fundamentally predicated on ancestral ritual succession, with property being transferred as an ancillary consequence. Consequently, this system did not permit the perpetuation of household continuity through hereditary succession, nor did it allow for succession based on loss of nationality or seclusion. Therefore, although the inheritance of the family headship in Japan and Joseon may appear superficially analogous, their underlying nature and objectives were entirely distinct.