조선후기 성 관련 범죄의 처벌 규정과 재판 양상―『審理錄』⋅『秋官志』와 『欽欽新書』의 판결 사례를 중심으로―

Abstract

King Jeongjo’s (正祖) reign (1776-1800) in the 18th century during the latter half of the dynasty likewise saw the active publication, first, of diverse ethics textbooks and didactic books (敎訓書) for the people’s moral awakening. The countless filial children (孝子), loyal ministers (忠臣), and virtuous women (烈女) featured in Oryun Haengsildo (五倫行實圖) demonstrate well the ruling classes’ moral orientation and goals. Meanwhile, the Simnirok (審理錄) and the Chugwanji (秋官志), which include the results of criminal trials conducted by the king and the Board of Punishments (刑曹), enumerate a large number of acts evaluated as ‘immoral’ and ‘unethical’ by the ruling classes. A collection of judicial precedents by Confucian Jeong Yag-yong (丁若鏞, 1762-1836), the Heumheum Sinseo (欽欽新書, New Book on Criminal Law), too, performs similar functions. Analyzing punitive regulations and judicial precedents regarding sex crimes from the latter half of the Joseon Dynasty, this study first examines the relevant legal provisions in the Daejeon Husongnok (大典後續錄), Sugyo Jimnok (受敎輯錄), and Sokdaejeon (續大典), which all include the basic requirements and punitive regulations regarding the establishment of sex crimes. In addition, various cases and trial records not addressed in provisions are analyzed through texts such as the Simnirok, Chugwanji and the Heumheum Sinseo. I examine punitive regulations on sex crimes and analyze the ways in which these regulations were applied to trials because I wish to glimpse, through trials, at the mentality and self-awareness of the ruling classes who were involved in either the legislation or the direct enforcement of such laws. As discussed in detail in the main body of this study, at the time, the king and officials acknowledged acts on the level of ‘[a man] tugging at the hem [of the skirt of a woman other] or sitting across each other [i. e., eating together] at a table (挽裳飯對, mansang bandae)’ as an important requirement for the establishment of the crime of adultery. If so, then when the women involved had not consented to such acts, those acts should have been acknowledged as the requirements for the establishment of the crime of already committed rape (强奸 已遂罪) as well. In this era, women all too easily committed suicide due to insignificant acts on the level of being tugged at their hems by men. In other words, because the act of ‘tugging at the hem or sitting across each other at a table’ was considered to constitute serious adultery, women took their own lives in order to plead in advance their own innocence and sense of the injustice of the circumstances. In the case of adultery, the legislators and law enforcers of Joseon at the time created diverse royal edicts and punished acts on the level of ‘tugging at the hem or sitting across each other at a table’ as the sex crime of adultery. In contrast, as for rape, these figures only clung to provisions in the Daminglü (大明律, Great Ming Code), presenting the interpretation that there was no relevant provision and desisting from strictly punishing the perpetrators. This paper examines problems and inadequacies in the interpretation and implementation of legal provisions surrounding sex crimes in order to glimpse at the contradictory sexual mores and legal judgments of the subjects who legislated such laws. This, above all, can be seen as better reflecting the intimate sexual desires and aspirations of the ruling classes centering on the monarch at the time. If men and women during the latter half of the Joseon Dynasty lived under a cognitive system that was seriously differential toward the crimes of adultery and rape, then, today, South Koreans conversely live in a world where the crime of adultery has been abolished and public attention is directed at the crime of rape. We have also experienced as an important issue whether or not sexual relations by force can be established as rape. What are the clear judgment criteria for consensual sex and rape today? Do we have the epistemological grounds to understand rape not as a special form of sexual relations but as serious violence? The gender awareness of late Joseon administrators, who were sensitive to the distinction between adultery and rape, and the experiences of women who, faced with the strong power of such an awareness, either capitulated or fought back, prompt us to rethink the coordinates of our own gender awareness.