나이사이(內濟)제도에 대한 小考

A Study on the NAISAI System ; Traditional Alternative Dispute Resolution (ADR) Methods in the Edo Period

History of law showed that there was a legal mechanism to help mediation between a victim and an offender (criminal mediation)in an ancient society for the purpose of encouraging settlement while discouraging self-sought relief on offender even far before law was divided into two categories; criminal law and civil law. As the criminal mediation was more cost- and time-effective to maintain the peace and security of society than settling conflict or dispute through trial it was widely respected. In the past, crime was understood as harmful activities against an individual and compensation for damages that the victim suffered was prioritized. With amendment in Crime Victim Protection Act, in 2005, Korean legal system provides legal grounds for criminal mediation between victims and offenders out of court. The criminal mediation is a new system in Korea where the criminal justice is strictly interpreted and applied to cases. In fact, a dispute resolution system (so-called “private-settlement- Sahwa”) was already implemented to help parties of criminal cases to negotiate or settle out of court. Unfortunately, there are few documents about the dispute resolution system in the past and little research has been conducted. The NAISAI system of the Edo period in Japan provides insights into how an ancient criminal mediation system was implemented before institutional system was clearly divided into criminal and civil laws. Given that the criminal mediation system in Japan was also called as ‘Sahwa’, same as in Joseon, helpful would be looking into the Japanese system to understand the Korean system. It is needed to examine institutional systems and cases of other countries in Europe, the U.S or the U.K in order to help the criminal mediation system successfully take a firm root in Korea, but understanding our own mediation system in the past should be done first.