Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 3, 1906, (In two parts), Part II
Ambassador Wright to the Secretary of State.
Tokyo , July 6, 1906.
Sir: I have the honor to inclose herewith translations of a number of imperial ordinances from the Official Gazette, relating to the organization, powers, and procedure of the Japanese courts in Korea.
It will be noted that the laws now promulgated provided for two classes of courts—courts of first instance and courts of appeal. The resident-general is invested with certain judicial power, such as are exercised by the respective ministers of state in Japan. The organization of the courts is determined and regulations relating to both criminal and civil procedure are set forth.
An editorial in the Asahi Shimbun raises the question as to the ultimate effect of the new judicial system upon the ex-territorial jurisdiction now exercised by the treaty powers in Korea. I have the honor to inclose a translation of the editorial for the department’s information.
I have, etc.,
[Inclosure 1.—Translation.]
We hereby sanction the law relating to the judicature in Korea which was approved by the Diet and cause the same to be promulgated.
[Sign manual.]
[Privy seal.]
(Countersigned)
Law No. 56.
law relating to the judicature in korea.
- I.
- The residency shall conduct the preliminary examinations of lawsuits and perform duties connected with noncontentious procedure within its jurisdiction.
- II.
- The resident-general may transfer the judicial business of one residency to another.
- III.
- In the residency the resident or the vice-resident alone shall examine and pronounce judgment.
- IV.
- The court of the residency-general shall examine appeals concerning decisions of the residents and give final judgment.
- V.
- The court of the residency-general shall be composed of three judges, of whom the highest in rank shall be presiding judge.
- VI.
- Only those who have been judges, prosecuting attorneys, professors of law in the Imperial University, residents, vice-residents, or attorneys at law for at least five years may be judges or prosecuting attorneys of the court of the residency-general.
- VII.
- The resident shall cause the officials of the residency to act as prosecuting attorneys of the residency.
- VIII.
- The prosecuting business of the court of the residency-general shall be dealt with by the prosecuting attorney.
- IX.
- The provisions for legal cooperation in the judiciary law for courtsa and the Formosan court shall be applied respectively to the legal cooperation between the residencies and the residency-general court on the one hand, and the courta on the other, and between the residencies and the residency-general court on the one hand, and the Formosan court on the other. The provisions for legal cooperation by request of foreign law courts shall be applied to legal assistance to be rendered in the residencies and the residency-general.
- X.
- Concerning the laws to be applied to Korea with respect to judicial matters not provided for in this law, Imperial ordinances may be issued.
supplementary articles.
The date at which this law is to be put into force shall be determined by an Imperial ordinance.
The lawsuits and noncontentious cases filed prior to the date at which this law is put into force shall be dealt with as formerly.
We hereby sanction the ordinance relating to the date at which law No. 56 will be put into force, and cause the same to be promulgated.
[Sign manual.]
[Privy seal.]
(Countersigned)
Prime Minister.
imperial ordinance no. 160.
Law No. 56 of 1906 shall be put into force on the 27th of June, 1906.
[Inclosure 2.—Translation.]
[From the Official Gazette, June 27, 1906.]
We hereby sanction the law relating to the authority of the resident-general in matters subject to the jurisdiction of the homea authorities, for which the approval of the Diet has been obtained, and cause the same to be promulgated.
[Sign manual.]
[Privy seal.]
(Countersigned)
Prime Minister.
Law No. 57.
Matters such as pertain to the jurisdiction of the homea authorities may be made to pertain to the authority of the resident-general by an imperial ordinance.
We hereby sanction the ordinance making such matters in Korea as pertain to the jurisdiction of the homea authorities subject to the authority of the resident-general, and cause the same to be promulgated.
[Sign manual.]
[Privy seal.]
(Countersigned)
Prime Minister.
Imperial ordinance No. 167.
The resident-general is to exercise his authority concerning such matters as pertain to the jurisdiction of the respective ministers of state in the laws relating to the organization of Japanese settlers, the control of Japanese residents in Korea, the census register, pensions for teachers of schools specially designated by the Government, and the fund in aid of their families, fishermen’s guilds engaged in fishing abroad, posts, telegraphs, and the regulations for constructing telephone and telegraph wires.
supplementary rule.
This ordinance shall take effect from the day of putting in force law No. 57 of 1906.
[Inclosure 3.—Translation.]
We hereby sanction the organization of the residency-general court, and cause the same to be promulgated.
[Sign manual.]
[Privy seal.]
(Countersigned)
Prime Minister.
Imperial ordinance No. 164.
the organization of the residency-general court.
- Article 1. A court of justice shall be established at the residency-general.
- Art. 2. The residency-general court is subject to the resident-general and shall deal with judicial affairs in Korea.
- Art. 3. The residency-general court shall have the following personnel:a President; judges (4), three of the sonin, one of the chokunin; public procurator (1), sonin; clerks (5), hannin.
- Art. 4. The president shall be a judge of the chokunin rank, and shall control the affairs of the court, subject to the resident-general.
- Art. 5. With reference to judicial affairs, the president of the residency-general court shall direct and control the residents.
- Art. 6. The judges shall take charge of judicial matters.
- In case the president should be prevented from fulfilling his duties, the senior judge shall act temporarily as president.
- Art. 7. The public procurator shall act under the instructions of the president of the residency-general court and shall take charge of matters relating to prosecutions and prisons.
- Art. 8. The clerks shall follow the directions of their superiors and attend to the miscellaneous business of the residency-general court.
supplementary article.
This imperial ordinance shall go into effect on the 27th of June, 1906.
[Inclosure 4.—Translation.]
We hereby sanction the regulations relating to the judicial procedure in Korea, and cause the same to be promulgated.
[Sign manual.]
[Privy seal.]
Prime Minister.
Imperial ordinance No. 166.
regulations relating to judicial procedure in korea.
Chapter I.—General rules.
- Article 1. Those judicial functionsa which appertain to the minister concerned shall be performed by the resident-general.
- Art. 2. In the residencies, matter pertaining to the duties of clerks shall be performed by the clerks of the residencies.
- Art. 3. Matters pertaining to the duties of a bailiff shall be performed by the clerks of the residencies or police officials.
- Art. 4. The provisions relating to testimony inadmissible on the ground of interest or relationship, or testimony excluded upon objection of a party or witness, shall not be applied to the officials of the residencies and the residency-general.
Chapter II.—Criminal procedure.
- Art. 5. With reference to criminal cases, the provisions in the Code of Criminal Procedurea relating to the district courts shall be applied to the residencies, while those relating to the courts of appeal in the Code of Criminal Procedure shall be applied to the residency-general court.
- Art. 6. If, in the documents drawn up by the government or public officials, there is any variation from the forms provided for in articles 20, 21, etc., of the Code of Criminal Procedure, the residencies or the residency-general court may cause the officials concerned to make additions or corrections.
- Art. 7. The officals acting as public procurators, if they deem it necessary to take prompt action, may, when a public action is to be brought, effect verification, attachment or search, or examine the defendant, witnesses or experts, or take any other measures that the judge who holds the preliminary examination is entitled to take.
- In the cases mentioned in the preceding paragraph, the officials referred to are not allowed to issue a warrant of arrest, to pronounce sentence of fine or indemnification of expenses, or to cause an oath to be taken.
- Art. 8. The provisions in paragraph 1 of article 78 and paragraph 2 of article 104 of the Code of Criminal Procedure relating to the presence of the head officials of cities, towns, or villages, shall not be applied, but in these cases the presence of two persons is required.
- Art. 9. When it is necessary to take evidence, the residencies or the residency-general court may cause the police officials to effect verification, attachment or search, or examine witnesses, or cause expert testimony to be given.
- In the cases mentioned in the preceding paragraph the police officials are not allowed to pronounce sentence of fine or indemnification of expenses, or cause an oath to be taken.
- Art. 10. If the commissioned judge deems it necessary on the occasion of inspection, he may effect attachment or search, examine the defendant or witnesses, or cause expert testimony to be given without waiting for the decisions; of the residencies or the residency-general court.
- Art. 11. When a defendant, witness or expert presents a note stating that he will appear at the court on the appointed day, or when he receives a verbal order to appear at the court at its next sitting, it will have the same validity as a written summons; but when a verbal order is given it shall be stated in the record of examination or proceedings of public trial.
- Art. 12. Even prior to the opening of the public trial the residencies or the residency-general court may effect verification, attachment or search, or decide to summon witnesses or experts.
- Art. 13. The provisions in article 237 and paragraph 3 of article 264 of the Code of Criminal Procedure shall not be applied to major offenses, with the exception of those cases in which the sentence of exile or imprisonment with hard labor for an indefinite period of time, or capital punishment, is to be pronounced.
- Without regard to the nature of offenses, major or minor, the residencies or the residency-general court may appoint advocates according to the circumstances of the case.
- Art. 14. If there is no objection on the part of the parties concerned, a summarized report of the documents for evidence may be substituted for the reading of the same in the court.
- If, in any case punishable by confinement not exceeding one year or a fine not exceeding 200 yen, the defendant voluntarily confesses his crime, further evidence need not be taken.
- Art. 15. With reference to applications for new trial or extraordinary appeal, the residency-general court shall be a court of appeal.
- In the cases mentioned in the preceding paragraph the provisions relating to them in the Code of Criminal Procedure shall be applied. But, even though the reasons in the applications for new trial may be admitted, judgment can not be given immediately without going through the form of rejecting or transferring the orignial decisions.
Chapter III.—Civil procedure.
- Art. 16. With reference to civil cases, the provisions relating to the local courts in the Code of Criminal Procedurea shall be applied to the residencies, while those relating to the courts of appeal in the same shall be applied to the residency-general court.
- Art. 17. Even when a (professional) advocate might be engaged, the interested party may, with the permission of the residency or the residency-general court, appoint as his representative any person legally qualified to begin action.
- The permission mentioned in the preceding paragraph may be canceled at any time.
- Art. 18. When there is no advocate that can be engaged and when it is necessary to select some person as an agent in a lawsuit, one who is considered suitable by the residency or the residency-general court may be appointed.
- Art. 19. If those who act as clerks deliver at their own offices any document to the addressee and receive in return his receipt, it shall be valid as a delivery.
- Art. 20. Unless there are good reasons, a fixed date may not be altered or extended, even though the parties concerned are agreed.
- Art. 21. If the persons concerned in any lawsuit present a note stating that they will appear at the court on an appointed day, the act shall have the same validity as a summons to appear at the court on the appointed day.
- Art. 22. No protest may be lodged against the second judgment by default.
- Art. 23. When the commissioned judge is to take evidence, either in accordance with the request of a party concerned or by virtue of his authority, he can examine a witness or cause expert testimony to be given concerning the matter for which evidence is to be taken without waiting for the decision of the residency or the residency-general court.
- Art. 24. The testimony of a witness or expert can not be excluded on the ground of his being interested or related.
- Art. 25. When the residency-general court sends a case back to the lower court concerned, the case may be argued immediately and the decision made thereon, if the parties concerned are agreed.
supplementary article.
This Imperial ordinance shall take effect on the 27th of June, 1906.
[Inclosure 5.—Translation.]
[From the Asahi, June 29, 1906.]
The laws relating to the judicature in Korea, which passed the Diet this spring, the organization of the residency-general court, and judicial procedure in Korea have been promulgated. In accordance with the provisions of these laws the residencies control the courts of first instance within their respective jurisdictions, while the residency-general court takes charge of appeals relating to the decisions of the residencies and render final judgments. The procedure is simple, and does not necessarily conform to that now in force in Japan. The judges are not regular judges (except the judges of the residency-general court [Page 1041] and the residents specially in charge of lawsuits); the procedure is colonial in its nature. Though, for these reasons, a perfect judicial system can not be expected, yet the new system is a remarkable improvement over the former system of consular courts. Though it is certainly to be regretted that the Japanese in Korea can not be accorded the same judicial treatment as at home, we have to be contented with the new system, as no further improvement can be made just at present owing to the peculiar conditions existing in Korea.
With the completion of the judicial system of the residency-general there arise the problems relating to the reforms of Korea’s own judicial system and the extraterritoriality of foreigners in Korea. In Korea there is no judicial system in the sense understood in civilized countries. Needless to say, it is Japan’s duty to reform Korea’s present judicial system. But it should be remembered that there are many things that have to be reformed or improved, and that they differ with reference to the degree of urgency. The reform, or properly speaking the creation of the judicial system of Korea, can not be said to be of the most urgent necessity. Should the judicial system of Korea be perfected and compare favorably with that of any civilized country, foreigners would be willing to subject themselves to such a system, and the question of extraterritoriality would easily be settled. The fact that under the existing circumstances the judicial system of Korea can not be reformed very easily is a strong reason for settling the question of extraterritoriality first. In reviewing the conditions of various countries subject to the protection of more powerful countries we find that it is seldom the question of extraterritoriality does not arise between the protected country, the protector, and the powers having extraterritoriality. In order to maintain the protector’s rights and interests to their full extent, it is extremely important from the political point of view that the protector should have full jurisdiction over the foreigners residing in the protected country. Japan is now in that position. Fortunately, the foreigners entitled to extraterritoriality are few in number, and no especially important commercial relations exist. For this reason the extraterritoriality in Korea is rather nominal, and there may be no harm in retaining the old system.
What must be done in the future is to abolish the extraterritoriality of the foreigners residing in Korea and to make them all subject to the jurisdiction of Japan. We believe that our judicial system in Korea just published is good enough to cause the foreigners who have hitherto been enjoying the benefits of extraterritoriality to be willing to subject themselves to the new system. Powers having some political object to accomplish in Korea may say that our new judicial system there is unsatisfactory and may object to it, but those having no special interests will accept our proposal. Since, of course, the new system is chiefly for the Japanese and not meant to be applied to foreigners, it may be that the system will have to be revised somewhat when extraterritoriality is abolished. What is important, however, is to abolish the old disagreeable system of extraterritorial jurisdiction in accordance with the new relation existing between Japan and Korea. But, as we have already said, the extraterritoriality of foreigners in Korea is merely nominal. It is, of course, another question whether or not it is advisable to make the powers abolish this jurisdiction against their will.