『흠흠신서』 殺獄 판결에 나타난 감정의 법적 수용 방식 : 복수 살인 및 부모 위해자 살해 사건을 중심으로

Abstract

This study aims at reviewing the investigations and judgements on the revenge killing cases and those of beating who assaulted one’s parents or spread rumors of conducting obscene acts to death in Heumheumsinseo(『欽欽新書』) and the way to record them in the book. There were the provisions that when a son or a grandson murders who killed one’s parent or grandparent, punishment of beating with heavy stick 60times would be done and that no punishment would be given in case of immediate revenge killing as well. The law that in case of revenge killing against who murdered one's husband or child, 60times would be beaten with heavy sticks was declared in the 18th century, and there were judgements to reduce sentences for the cases of revenge killing who murdered a brother. King and officials intended to protect intimacy between parents and children and between siblings, which were originally Confucian values as well as norms such as filial piety for parents and loyalty to husband through judgements on murder cases in the 18th century Joseon. Even, there was a provision to commute death penalty to exile in case of beating who assaulted one's parent to death. Considering that the Great Ming Code(『大明律』) contained the provision to apply punishment against general murder in this case, it implies that the will to promote filial piety for parents overwhelmed the conventional logic in criminal laws that killing others should be repaid by the offender’s own life in the 18th century Joseon. Examining the trends of judgements of the cases of revenge killings and beating who harmed one’s parent to death in Heumheumsinseo, the laws enacted in the 18th century were applied or sentences were mitigated even though the legal requirements weren’t met. King and officials recognized as the results of ‘indignation from righteousness(義憤)’ that murdering purposely the offender who killed one’s parent or grandparent with emotion of indignation or an extreme case of beating the offender to death due to wrath arising from filial piety, loyalty or intimate emotions among families. And this indignation became the reason for commuting punishments. But Jeong Yakyoung tried to provoke the duty preventing arbitrary killings under the mask of revenge, deliberating to apply the law governing revenge killings commuted drastically compared to general killing, by the thorough investigation of homicides by officials, even though respecting heart for a family member and the trends of judgement in Heumheumsinseo in the early 19th century. It is available to see worries of the ruling class at that time, who had to respect the morality and the righteousness and prevent the phenomena ignoring human lives and increasing arbitrary homicides.