조선총독부 고등법원의 토지소유권 판결(1918～1921)과 그 성격

Abstract

The High Court of Governor-General of Korea, the highest court of Joseon under Japanese rule, ruled that “administrative measure based land ownership (“administrative ownership”)” established by the Land Survey Project and “judicial decision based land ownership (“judicial ownership”)” are valid. This ruling was inconsistent with the policy of the Governor-General of Korea, which tried to regard only “administrative ownership” as an absolute right. The High Court judged that the “administrative ownership” was confirmed by the <Land Survey Ordinance>, and the “judicial ownership” was confirmed by the <Code of Civil Procedure> of Japan in 1918. Furthermore, the High Court ruled that “judicial ownership” is registrable as it was the right established by due process. It was a contradiction that two ownerships existed on one land, which occurred as two statutes of different systems were applied simultaneously in Joseon under Japanese rule. In 1921, a lawsuit was proceeded at the request of redefining the relationship between the two ownerships. The High Court had to judge the claim that “administrative ownership” was superior based on the first clause of Article 1 of <Regulations No. 16> in 1914. The united department of High Court judged the two rights are equal and independent that cannot be violated. The decision by the High Court, which was an internal institution of the colony, prevented the land ownership policy of Governor-General of Korea from being legally enforced until 1921.