일본의 사법 근대화와 청국의 영사재판권 행사 문제

Abstract

Yokohama is the largest treaty port in modern Japan, and more than half of the foreigners who lived there were Chinese. This paper reviewed the exercise of Japanese legal rights over the Chinese and the issue of consular jurisdiction of Qing China.
 The series of treaties signed by Japan with Western powers stipulated “unilateral consular jurisdiction,” which was extended to extraterritorial jurisdiction. Based on this perception, the inequality of the treaty is limited to Western powers. However, the exercise of consular jurisdiction by Qing also shows that Japan's legal rights have been violated under the treaty of 1871 between China and Japan. In terms of infringement and restriction of jurisdiction, the “formal equality” of the treaty between Qing and Japan eventually had a similar effect to the ‘unequal treaty’ with the Western powers. Furthermore, the implementation of the Qing’s pre-modern trial system became a double difficulty for Japan, which was pursuing judicial modernization along with the revision of the unequal treaty.
 Japan sought to expand the exercise of Japanese jurisdiction over foreigners as much as possible in the process of operating the current treaty. Prior to the establishment of the Qing’s consulate, Japanese law was partially implemented to Chinese. Furthermore, even during the period of the Qing’s consular trial, the exercise of judicial power over Chinese was attempted by using the Qing’s lack of modern judicial system. However, as long as the consular jurisdiction was prescribed, such attempts had clear limitations. In addition, Chinese in Japan took full advantage of Japan's modern judicial system and at the same time took an active action to gain an advantage in disputes with the Japanese through consular trials. This situation strengthened Japan's awareness of the issue of the ‘unequal Treaty’ and pushed for an unequal treaty of Japanese superiority within East Asia.