일제시기 토지소유권 확립을 둘러싼 사법적 분쟁의 해소 –김성윤과 도요타 후쿠타로의 소송을 중심으로-

Abstract

The Governor General office of Joseon was planning to establish land ownership rights in Joseon, and also recognize those rights as ‘Original acquisitions(原始取得),’ only through the so-called process of ‘inspections(査定),’ which were executive orders that resulted from the Joseon Land Survey Program. However, no other than the High Court, which harbored the highest legal authority in colonized Joseon, ruled that the land ownership rights established by judicial trials should also be recognized. This created a situation in which a piece of land could be subjected to both an ownership established by an executive order, and an ownership established by a judicial trial, at the same time.<BR> This case was also noteworthy in the sense that it was an instance in which a Court of Justice would present an opinion that was different from that of an executive office ruling a colonized society. And the stance of the High Court in this case was also a deviation from the principle of ‘One right for one object(一物一權)’ and ‘One lord for one land(一地一主),’ as defined in the Old Civil Law(舊民法) which had been serving as the Primary law for the civil legal areas in colonized Joseon.<BR> But at the same time, the High Court in Joseon was also part of the Governor General Office. The High Court did amend previous rulings through a Joint Session examination, and acknowledged the ultimate (and superior) legitimacy of the land ownership rights established by executive orders. The Court also limited the range of efficacy of the ownership rights established through judicial trials, rendering it a right which could simply not be used, profited from or disposed.<BR> So, with the High Court’s decision in 1925, the conflict between sister organizations over the issue of establishing land ownership rights in Joseon was resolved, and the rights generated by the Joseon Land Survey Program were acknowledged and recognized as ‘Original acquisitions.’ The ‘Inspections,’ which enabled all this and now considered to be the beginning point of Korean land ownership rights, was in fact created by the Governor General office in Joseon, the quasi-state authority and an executive office which overpowered the judicial branch during the Japanese occupation period.