번역: 朝鮮에 있어서 治安維持法 體制의 植民地的 性格

• Published in: 법사학연구, 0(26) pp. 49 - 76
• Main Authors: 水野直樹, 이영록
• Format: Journal Article
• Language: Korean
• Published: 한국법사학회 01.10.2002
• Subjects: 법학
• ISSN: 1226-2773

이 논문은 식민지 조선에서 치안유지법 체제 및 그 운용이 일본 ‘내지’와는 어떻게 달랐는지 규명하는 것을 목적으로 하였다. 첫째로, 조선에서는 식민지의 독립운동에 대하여 치안유지법을 적용한다는 해석이 판례로 확립되었다. 그렇기 때문에 일본 ‘내지’에서 비슷한 해석이 판례로 자리잡기까지 조선과 일본 ‘내지’ 사이에 치안유지법 적용에서 큰 괴리현상이 나타났다. 둘째로, 조선 외에 사는 많은 조선인들이 치안유지법에 의하여 처벌되었다. 이것은 일본 ‘내지’에서의 법운용에서는 볼 수 없는 큰 특징으로서, 특히 외국공산당(대부분은 중국공산당)에 가입한 조선인들에게도 치안유지법이 적용된 것은 치안유지법의 확대해석을 가져온 것이었다. 셋째로, 식민지의 독립운동, 공산주의운동 등에 대한 ‘본보기’로 치안유지법에 의한 처벌이 행해졌고, 이를 배경으로 사형판결 및 사형집행이 행해졌다. 치안유지법 위반 용의만으로 사형판결이 내려진 것은 일본 ‘내지’에서는 볼 수 없는 사실이었다.[주제어] 치안유지법, 내지, 식민지, 독립운동, 재외조선인, 사형 The Peace Preservation Law, the most important of the thought control laws in prewar Japan, was enforced in colonial Korea, and, while the law was same as in Japan, the interpretation and application of the law in Korea was very different from that in Japan. In other words an original Peace Preservation Law system was formed in Korea. First, it was applied to the Korean independence movement. By interpreting national liberation movements as activities for “change of the Kokutai(Japanese Ten-no regime)” which was punished by the Peace Preservation Law, the interpretation and application of the Law were basically changed. The judicial precedent of interpreting the Korean independence movement as an activity for “change of the Kokutai” was established in 1930~31. The interpretations in Japan and in Korea became very different. In the case of Cho Yong-ha who was an activist in the United States and was arrested in Kobe in 1932, although the Japanese prosecutor insisted that the 7th Korean regulation (seirei) of Taisho 8(1919) should be applied to Cho, the prosecutors in colonial Korea applied the Peace Preservation Law. As this case showed, the interpretations of the Peace Preservation Law in Korea was that the law should be applied to the independence movement unlike in Japan. Secondly, the Law was applied to Koreans who were involved in independence movement and communist movements in China (including Manchuria). Although the Law had an article that stated the Law should be applied also to the criminals residing outside of the enforcement area, in order to punish them by the Peace Preservation Law two conditions were necessary. One was that they be “Japanese imperial subjects”. Therefore Japanese authorities insisted that even Koreans who were naturalized as Chinese still had Japanese nationality. The second condition was that the consular police which Japan established at the consulates in China carried out their control activities over Japanese subjects including Koreans. Since the Korean independence movement and communist movement developed mainly in China and Manchuria after the second half of the 1920s in which the Peace Preservation Law was enacted, many Koreans were arrested outside Korea by Japanese consular police. They were sent to Korea and punished under the Peace Preservation Law. By punishing them by that law, the Japanese authorities produced another interpretation of the law that activities of foreign communist parties should be punished by the Peace Preservation Law. It is because almost all of Korean communists living in China joined the Chinese Communist Party. Although they aimed at Korean national liberation, the Chinese Communist Party itself did not aim at Korean independence. However, prosecutors and judges of colonial Korea considered that, by the fact that the Chinese Communist Party adopted the slogan of “assistance for liberation of colonies”, its activities should be regulated by the provision on “change of the Kokutai” of the Peace Preservation Law. This was another deterioration of an already bad law. Third, death sentences were meted out in Korea. In the commonly-held view, it has been supposed that no death sentence was pronounced under the Peace Preservation Law after the revision of the law in 1928 making the death penalty the stiffest punishment under the law. However, we can find death sentences under the Peace Preservation Law in Korea. Of 18 defendants who were sentenced to death at the second trial (1936) in the case of the Chiendao(Kando) Communist Party (one branch of the Chinese Communist Party), one defendant was sentenced to death under only the Peace Preservation Law. Other defendants who were sentenced to death were sentenced under the provisions of the criminal code on homicide, incendiarism, burglary, etc. together with the Peace Preservation Law. However, examining its decision, we can confirm that two of them were sentenced to death under the Peace ... KCI Citation Count: 13