식민지 조선에서 일본 명치 민법상 가제도(家制度)와 호주제도(戶主制度)의 수용(受容)에 대한 재론

This study examines whether the household system(家制度) and the head-of-household system(戶主制度) under the Japanese Meiji Civil Code were received(繼受) or accepted(受容) in colonial Korea. The court recognized that the Japanese household and head-of-household systems had been introduced and become established in colonial Korea, while previous studies have debated whether their introduction should be regarded as a distortion of customary law or the creation of a new custom. However, Article 11 of the 1912 “Joseon Civil Ordinance (「朝鮮民事令」)” stipulated that matters related to legal capacity, kinship, and inheritance should be governed by Joseon customary law. Although Article 11 was amended in 1921, 1922, and 1939, an examination of its revisions suggests that there is weak evidence to support the claim that the household and head-of-household systems were explicitly adopted in Joseon. Since the provisions concerning the head-of-household and family system (Articles 732–764 of the Meiji Civil Code) were not adopted under Article 11 of the Joseon Civil Ordinance, it is necessary to be cautious in assessing whether the legal framework of the household and the head-of-household system was forcibly received into colonial Korea. The “Civil Registration Act (「民籍法」)” and the "Joseon Husbandry Ordinance (「朝鮮戶籍令」)", which were introduced in Joseon, were not substantive civil law provisions; rather, the introduction of the household registry system should be interpreted as the introduction of administrative regulations concerning the registration of family relationships. Moreover, the concepts of "kinship" and "family" in the Meiji Civil Code were not compatible with Joseon customary practices. Based on the textual interpretation of Article 11 of the Joseon Civil Ordinance, it is more appropriate to conclude that regulations concerning kinship should be governed by Joseon customary law. Furthermore, there were significant differences between the head-of-household system under the Japanese Meiji Civil Code and the head-of-household system in colonial Korea. When comparing the two, the authority of the head-of-household differed, and there were also discrepancies in the right to consent to status-related legal actions. Notably, in Joseon, the authority of the head-of-household extended only to their direct descendants, whereas in Japan, it also applied to direct ascendants. When comparing the customs and cultural practices related to the family system in Joseon with those under the Meiji Civil Code, it is evident that they operated on different it is evident that they operated on different ‘hierarchies’ and ‘conceptual frameworks’. Therefore, caution is necessary when assessing whether the customs and cultural practices of the household and head-of-household system under the Meiji Civil Code were voluntarily accepted in colonial Korea.