By Andrei Lankov
For centuries Korean law was based on the Chinese model which went back to the Tang dynasty. To a modern mind, many features of this old legal system would appear strange, but it was not designed for a modern society and worked well for at least 1,500 years.
The first attempt to introduce modern (that is, European-style) law in Korea took place in 1895. Among other things, the legal reform envisioned the creation of a separate judiciary: for centuries, the head of local administration was ex officio also a local judge. Actually, this attempt to create a network of local courts ended in failure due to the persistent shortage of funds and qualified personnel. The reform also created a modern style Ministry of Justice which replaced a traditional agency, known as the Board of Punishments. In 1905 Korea acquired its own Criminal Code. Edward Backer, an American historian of the Korean law, whose work I use for this article, described it as a mix of the old and new: its form was Westernized, but its content still had much in common with the earlier Chinese-style codes.
However, the introduction of a modern legal system into Korea was done by the Japanese. In 1907 the Japanese legal advisers were appointed to the Ministry of Justice and to the courts. Under their supervision Korea acquired a new four-tier system of courts which were supposed to be independent from local administration. It was also decided that the Japanese would be allowed to become judges and procurators in these new courts. They did not wait for too long: by the end of 1908, two thirds of all judges in Korea were ethnic Japanese. In order to attract Japanese officials to Korea, the Resident General’s Office paid them huge bonuses: on average, a Japanese judge was paid three times as much as his Korean colleague at the same level. These perks attracted a number of qualified people, so the Japanese Ministry of Justice complained about a shortage of personnel in Japan proper: too many people had gone of Korea, they insisted.
Until 1909, however, Tokyo was undecided on whether it wanted to absorb Korea completely, or would prefer to have a Japanese-controlled but technically independent state. Therefore, the Japanese legal specialists came to take part in the re-drawing of the Korean Criminal Code. The work was not completed, however: Tokyo decided that Korean state would be destroyed, thus there would be no need for a Korean law.
In 1909, the administration of the courts and prisons was formally transferred from the Korean government to the Resident General’s Office. The Ministry of Justice ceased to exist, and a number of ethnic Korean officials lost their jobs, being replaced by an even greater number of Japanese ex-pats. Finally, in 1912, the Korean law itself come to an end: it was proclaimed that with a few notable exceptions, cases in Korean courts would be decided according to Japanese law.
Incidentally, Japan itself made the switch from a traditional East Asian, Tang dynasty style, legal system in the 1880s, some three decades earlier than Korea. Germany was chosen by the Japanese reformers as an example to emulate in legal matters. Thus, some elements of German law can be seen in Korean law to this day.
However, in 1912, Japanese law was applied to Korea with two important caveats. First, it was decided that in homicide or armed robbery, Koreans would be punished according to the harsher provisions of the old and formally abolished Korean law code. The Governor General explained: “The application of [harsher] code to Korean criminals who frequently repeat these crimes, and are extremely cruel in the committal of them, would prove advantageous in the maintenance of peace and order”.
Another “advantageous way” of dealing with the Koreans was the wide use of flogging. Corporal punishment was reserved for the Koreans alone. Flogging was used quite generously: some half a million people were subjected to this punishment during the first decade of colonial rule. Of course, the Japanese officials explained that flogging is only natural when Koreans were involved: “Flogging being a form of punishment practiced in Korea for ages, it seemed likely to be more effective as a measure of punishment for trifling offences than short imprisonment or small fines”.
Flogging remained a part of the colonial law for a decade. It was abolished only in 1920 when the Japanese authorities had to relax their policy in Korea. But that is another story…