Japanese Colonial Period and Legal Transplantation (1910–1945)

Introduction

The Japanese colonial period (1910–1945) fundamentally transformed Korean law through legal transplantation. Japan, itself a modernizer of law through the Meiji Restoration’s adoption of German civil law, imposed its legal system on Korea. This period introduced Western-style codified law — albeit through the Japanese colonial framework — and established the institutional foundations that would shape post-independence Korean law.

Annexation and Legal Restructuring

Japan-Korea Annexation Treaty (1910)

The annexation treaty of August 22, 1910, abolished Korean sovereignty and transferred all legislative, executive, and judicial powers to the Japanese Governor-General. The Governor-General exercised absolute legislative authority through seirei (colonial ordinances) that had the force of law.

Legal Pluralism

Initially, the colonial legal system maintained legal pluralism:

• Japanese law applied to Japanese residents in Korea
• Korean customary law continued for Koreans in civil matters (family, inheritance, property)
• Colonial ordinances governed criminal and administrative matters

However, Korean customary law was progressively subordinated to Japanese civil law principles, particularly after the 1912 Chōsen Civil Affairs Ordinance (조선민사령), which introduced Japanese Civil Code provisions as subsidiary law.

Transplantation of German-Japanese Civil Law

Japanese Civil Code (1898)

The Japanese Civil Code, adopted in 1898 after extensive study of the German Bürgerliches Gesetzbuch (BGB) , was gradually extended to Korea. The Code’s structure — General Part, Real Rights, Obligations, Family, and Succession — became the template for what would later become the Korean Civil Code.

Key Features Transferred

Through Japanese colonial administration, Korea received:

• Pandectist system: The systematic structure of German civil law (general principles followed by specific categories)
• Abstract property transfer system: Distinction between obligatory contracts and real agreements (dingliche Einigung)
• Closed list of real rights (numerus clausus)
• General clause of good faith: Article 1 of the Japanese Civil Code
• Tort law: Based on German BGB paragraphs 823–853

Colonial Court System

The Japanese established a hierarchical court system in Korea modeled on the Japanese judiciary:

• District Courts (each county or city)
• High Court (Appeals, in Seoul)
• Supreme Court (Final appeals, in Seoul — subject to Japanese Supreme Court review)

Judges were Japanese nationals, and the language of the courts was Japanese. Korean lawyers were restricted — only a small number of Korean attorneys were licensed, and they faced discrimination in practice.

Criminal Law Transplantation

The Japanese Criminal Code (1907, based on German criminal law) was applied to Korea through colonial ordinances. Key features adopted:

• Nullum crimen sine lege (no crime without law)
• General principles of criminal liability
• German doctrinal categories (intent, negligence, attempt, complicity)
• Modern punishment system (imprisonment, fines) replacing traditional corporal punishment

Resistance and Legacy

Korean Legal Scholarship

Despite colonial oppression, Korean legal scholars studied at Japanese imperial universities (Tokyo, Keijo/Seoul) and absorbed German legal philosophy through Japanese scholarship. These scholars would become the founding generation of post-independence Korean law.

Post-Independence Influence

After liberation in 1945, Korea retained the colonial legal infrastructure:

• Court buildings and organization
• Legal procedures (largely unchanged until 2007)
• Substantive civil and criminal law concepts
• German doctrinal categories transmitted through Japanese law

Conclusion

The Japanese colonial period was a tragic chapter in Korean history, but its legal legacy is enduring. The German-Japanese civil law system transplanted during this period became the foundation of modern Korean law. Post-independence Korean lawmakers consciously chose to maintain the civil law tradition rather than adopt common law, making the colonial transplantation the starting point for Korea’s modern legal system.