식민지 시기 한국 가족법의 관습 문제1 - 시간 의식의 실종을 중심으로 = Colonial Invention of the Custom in Korean Family Law I: The Question of Lost Temporality

다국어 초록 (Multilingual Abstract)

This essay casts light on the invention of the ``custom `` in the family law during colonial period in Korea (1910~ 1945), especially since the introduction of the Chosun Minsaryong in 1912, which promulgated the area of family law in Korea was not ruled by Japanese civil codes, but by the ``custom.`` Defining the issue of ``custom,`` this study re-examines the issue from the angle of time embedded in the notion. Especially, it Critically engages with current understanding of colonial ``distortions.`` After outlining the theoretical background, this paper discusses how the ``custom`` in Korea had been set up. There were many, indeed, scattered sources of the ``custom``: first, the colonial government published the ``rep ort`` about Korean custom investigated by corresponding officials and institutions during and even before the colonial rule; second, colonial official``s answers, orders, and notices concerning family issues ,``ere also regarded as the sources of the ``custom. `` In addition, family registration act, such as the Chosun hojokryong, and articles of Japanese civil codes, which was applied to colonial Korea, formed d1e social environment from which ``new`` custom colonial period was very complex, as it is characterized by the mixture of the ``old`` with the ``new,`` the ``Korean`` with the Japanese`` customs. This study then examines the ``custom`` of inheritance mainly through the Chusuin document and legal cases. At first, the custom of inheritance was not firmly established mainly because of the discrepancy between the Japanese family institution and the preexisting practices in Korea. Nonetheless, the colonial court employed the ``custom`` as the ground of the judgement. In such a usage, the ``custom`` in Korea, on the one hand, tended to signify the essential culture, as if it resided outside of time and space. On the other hand, it was only meaningful with reference to the Japanese family as the parameter. Consequently, the ``custom`` in Korea was frozen in the past, but that past was not historical but imaginary space. In that space, however, Japanese law and policy were transplanted under the name of Korean ``custom``. In this grammar of ``custom,`` therefore, the sense of space was fatally confused and the sense of time was lost. Seen this way, it is fair to say that Japanese colonialism invented and determined what the Korean ``custom`` has meant, still effective in Korea until today, indicating a Japanese intervention to Korean culture in the most fundamental level, rather than ``distortion`` of the preexisting Korean culture. This paper warns the Orientalist assumptions of the unchanging Korean culture, and suggests the tasks of bringing the frozen notion of Korean ``tradition`` and ``custom`` into the history as one of the postcolonial efforts in Korea.