세종의 형법사상

Abstract

This article explores Sejong the Great's perspectives on criminal law, both in theory and practice, thereby attempts to analyse how it is correlated to Sejong's tendency towards his people and his devotion for academia. Sejong was by nature an earnest and passionate reader of the classics, and had great affection for studies. Besides, as is well-known, he had always been a moderate, wise and virtuous monarch. Thus any abuse of authority in punitive measures wouldn't have been permitted in principle during his regime. It could be said that Sejong's philosophy on criminal law derived from his perspectives on humanity, which was based on the belief that every man is primarily people(民) granted from heaven(天) prior to being the will of heaven had also led to his compassion towards loving his people, and we may glance the zenith of it from historic invention of korean characters, Hangul(訓民正音). Tendency towards mercifulness had served as the very basis of Sejong's thoughts on criminal law. Ideas of Nulla poena sine lege had thereupon gained its birth as the ideological tool to realize his loving of his people. He perceived that imposing of any punishment which is not inscribed on criminal code would lead to social disorder. Being a scholarly monarch proficient in Chinese classics as he was, Sejong used to cite a phrase from Confucian scriptures that reads ‘be cautious and cautious, while enforcing criminal justice always be aware of being cautious' in order to solidify mercifulness as the backbone of criminal policy under his regime. In addition it was followed by consistent reflection on previously sentenced punishments, testifying whether they were excessively imposed, from which the legitimacy and necessity of amnesty derived. Therefore he did not fall into the fallacy of overissuing amnesty as means of political appeasement. However, considering such theoretical tendency and philosophical determination of Sejong, it would seem rather ironic -and to some extent,even shocking- to confront statistical figure that the rate of capital punishment sentenced throughout Sejong's term of office being unexpectably high. In fact it appears to be even higher than that of his predecessor Taejong, who in comparison with Sejong, was notable for brutal and bloody historical events related to treason and political disputes. What, then, could have been the cause of such discordance between theory and practice in criminal law during Sejong's regime?prescribed as people of specific country or monarch. Thus each and every one of people may proclaim unique value, which even monarch cannot take away. Besides, because monarch holds responsibility of the people who had been entrusted to him to be taken care of, he should always be tentative when imposing punishment on them. In accordance with such teachings, whenever perceiving innocent death of his people, Sejong was determined never to stand back but rather to actively participate in eradicating criminal injustice. His commitment to reign according to Sejong would be described as a monarch who is by nature more closer to a scholarly teacher then astute politician. Just like any other good teachers would do so, he was always rationally bound to what he had previously read and taught. Thus whenever he was confronted with arguments of his government officials such as '…Your Majesty had previously given doctrines as…' or '…it was found in an old document that such case had been settled down as…', he was unable to refute. In a way, his earnest attitudes and profound knowledge in classics had sometimes acted as excessive self-constraint when it came to terms of real practice of politics. Moreover in order to keep strict accordance to the Great Ming Code(Da Ming Lu; 大明律), it was inevitable to sentence severe punishment such as death in more cases, because the criminal code itself was severe. Sejong thereby had to face irresistible limitation in practicing his ideal of mercifulness in criminal cases. Due to such unintended harsh implication of criminal law, Sejong had to face contradictory phenomenon that the number of criminal cases drawing inclination towards increase by the end of his regime: the well-known paradox of excessive punishment. It teaches us valuable lesson nowadays, that good criminal policy cannot be realized in practice unless bad criminal law itself is nullified.