일제강점기 일반관습법의 창출

During the Japanese colonial period, the High Court of Korea, as well as the Supreme Court of Korea after 1945, frequently used the term “general custom” rather than simply “custom.” For instance, it is necessary to examine the distinction between “lineage associations(jonghoe)” and “general lineage associations(ilban jonghoe).” Since the Report on Customary Practices(Gwanseup Josa Bogoseo, 1910) synthesized commonly appearing features from 48 regional survey reports, there is a high likelihood that the depiction of lineage associations in this Report was referred to as “general lineage associations.” Therefore, the authors find it essential to verify whether the descriptions of lineage associations in the Report genuinely represent those documented in each of the 48 regional survey reports. While Ume Kenjiro(梅謙次郞) hoped regional survey reports would accurately reflect social norms of the surveyed regions, there remains doubt that the collected data may instead represent certain subjective legal consciousness or sentiments of respondents. Additionally, Oda Mikijiro's(小田幹治郞) extraction of general (nationwide) customary law from multiple local customs involved significant subjective intuition and personal bias. Furthermore, although the Gyeongseong Court of Appeals and the High Court of Korea referred to these survey replies, they selectively incorporated their content to formulate judicial rulings. The phenomenon of invention is not limited to the Report on Customary Practices but also appears in subsequent resolutions and judicial decisions. The so-called “old customs(gugwan)” recorded by the Japanese, even if similar norms can be identified, are difficult to regard as authentic customs from the Joseon era; rather, they are norms newly invented during the colonial period.