조선 전기 ≪唐律疏議≫의 수용과 활용

Abstract

In this paper, I have looked into the usage patterns and perceptions of the Tánglǜshūyì(당률소의) in the early Chosun Dynasty. The Tánglǜshūyì, a combination of traditional Chinese penal rules, influenced not only China but also Chosun Dynasty. In the Early Chosun Dynasty, Tánglǜshūyì was disseminated for accurate understanding and application of Táminglǜ(대명률) because the content was considered perfect. As a result, it was included in Kyeongkuk-Taecheon(경국대전) as a subject of the official for lawyers (율과) and talent-recruitment examination(취재). However, unlike the contents of The Annals of Koryeo Dynasty(고려사), Tánglǜshūyì was not seen in the discussions on criminal justice reform at the end of the 14th century, and was used in earnest from Era of the King Sechong. Since the 16th century, when the status of Táminglǜ was established, it was used intermittently and its status declined. As a result, it was excluded from the official for lawyers in the Sok-Taecheon(속대전). In the Early Chosun Dynasty, Tánglǜshūyì was used as follows. First, the creation of new crimes according to the policy goals, second, after understanding the Táminglǜ, the basis for legislations appropriate to the situation of the Chosun Dynasty, third, supplementing the inadequate part of the Táminglǜ, fourth, legal means to solve the social problems. This is a process of indigenization of criminal law based on Táminglǜ and adapting Táminglǜ to suit the situation of the Chosun society. The contents of Tánglǜshūyì were properly cited and utilized according to the awareness of the problem. Substantive law is the most used field in which Tánglǜshūyì is used. King Sechong understood the imperfections of Táminglǜ and used its source, Tánglǜshūyì, as an alternative. The perception of Tánglǜshūyì differs before and after the status of Táminglǜ was established. Previously, it was used equally to Táminglǜ, but later, Tánglǜshūyì was recognized as a subsidiary, and its use was reduced. In the early Chosun Dynasty officials accepted Táminglǜ as a general criminal law, renovated sources of law by appropriately using Tánglǜshūyì according to circumstances and goals. We can read the willingness to realize the rule of law in the Early Chosun Dynasty along with the openness of the ruler.