『欽欽新書』에 반영된 茶山의 유교적 재판 원칙과 규범 ― 「經史要義」의 法理 해석 근거와 의미 재검토

Abstract

Chŏng Yag-yong's 丁若鏞 (1762~1836, Tasan 茶山) New Book on Criminal Law 欽欽新書 (Hŭmhŭm Sinsŏ) is a collection of verdicts on cases involving human lives from the Chosŏn Dynasty. The first chapter of this work is Essential Meanings of the Classics and Histories 經史要義 (Kyŏngsa Yoŭi), which elucidates the principles and norms of trial sentences through the contents of Confucian classics and histories 經史. By intensively analyzing Essential Meanings of the Classics and Histories, the present study introduces the Confucian principles and norms of trials that Chŏng presented as a Confucian scholar. As the title of New Book on Criminal Law shows, a cautious and forbearing official's attitude of judicial prudence 欽恤 and pity and reverence 哀敬 permeates all thirteen principles of trials that Chŏng presents in Essential Meanings of the Classics and Histories. The author thus stresses judges' judicial prudence because, in a Confucian judicial system, what determined the establishment of sentences on crimes were not criminal acts themselves but the actors' intentionality, and judges' cautiousness was important above all in shedding light on the actors' psychological states. Chŏng states that determining whether a crime was an accidental offense 眚 (saeng) or a premeditated (or intentional) one 終 (chong) is the main principle in judging homicide cases 殺獄 (sarok). Emphasis was placed on whether a crime had been committed negligently or intentionally because the goal of Confucian penal laws and punishments lay in morals (ethical virtues). Consequently, even when an act was deplorable, it was seen as forgivable and pardonable if its original intention was moral. The so-called three cardinal guidelines and five constant virtues 綱常 (gangchang) or ethical guidelines 倫綱 (lungang) were important ethical virtues pursued by Confucian scholars. These figures considered crimes against the cardinal guidelines and constant virtues to be the worst crimes and even allowed individuals' private revenge murders of criminals against the cardinal guidelines and constant virtues. Most of the normative principles of trials presented by Chŏng in Essential Meanings of the Classics and Histories including "permission to murder enemies at will 仇讐擅殺" (kusuch'ŏnsal; 6th principle), "disallowance of revenge against righteous homicide 義殺勿讐" (ŭisalmulsu; 7th principle), "disallowance of revenge against officials for punishments 受誅不復" (sujupulbok; 8th principle), "absence of pardon to acts disruptive of ethics 亂倫無赦" (nallyunmusa; 10th principle) and "complete severance of relations with grossly immoral murderers 弑逆絶親" (siyŏkchŏlch'in; 11th principle) were directly linked to cardinal guidelines and constant virtues ethics. As is well known, the cardinal guidelines and constant virtues ethics of Confucian societies was based on the status distinction 名分 between the ruler and his subjects, between parents and children, husbands and wives, and masters and servants/slaves. The concept of status distinction granted special privileges and differentiation according to relational closeness/distance, social class, and rank. In Chŏng's view, Confucianized laws meted out disparate punishments according to relationships of status distinction mentioned above. In the 9th principle in Essential Meanings of the Classics and Histories, he acknowledged the eight deliberations 八議 or the eight penalties 八辟 from the Rites of Zhou 周禮 (Zhouli), which constituted the principle of disparate punishments for identical crimes 同罪異罰, or the special preferential treatment of and the commutation of sentences for those including monarchical clansmen, aristocrats, and individuals of distinguished service to the state. In Chŏng's opinion, disparate punishments existed according to status distinction, and acts violating status distinction 犯分 likewise had to be punished strongly according to law. In order to understand the Confucian principles and norms determining most of the trials presented in New Book on Criminal Law, it is necessary to examine the ideal values that Chŏng pursued through strict differentiation between status distinction and violations of it. When Confucian scholars of the Chosŏn Dynasty presented status distinction between the monarch and his subjects, between parents and children, between husbands and wives, between masters and servants/slaves, and between aristocrats 士族 and commoners and outcastes 常漢, underlying such a theory was a sense of moral superiority. In other words, Confucian scholars' sense of entitlement consisted of ethical elitism. In the end, the ideals pursued by Chŏng as a Confucian scholar, too, were justified discrimination and a hierarchical order based on morality, which in turn can be seen as having served as the potentials and limitations of New Book on Criminal Law at the same time.