송대 差役의 糾論과 소송사회

Abstract

Jiulun(糾論, mutual exposure within) is a very fascinating issue among the recent studies on the Chinese legal history. The proposal of ‘the theory of the Chinese litigious society’ by professor Fuma Susumu has suggested that traditional Chinese despotic rule has structured ‘the Chinese litigious society’ by the peculiar way of Jiu-lun. Professor Fuma suggests that by way of Jiulun, which is the mutual exposure within the country to make equalize the burden of one’s corvee, a serial and collective litigation occurred and thus contributed to form the Chinese litigious society. His theory of Chinese litigious society seems to give an important point to elucidate the Chinese despotic rule. This paper is a critical review of the theory of Chinese litigious society. It is to see how it could be possible in traditional Chinese society in which non-litigation has been deemed as an human ideality as been thaught since Confucius. This paper criticized it firstly by explaining the historical background of Jiulun and secondly by analyzing it’s reality and lastly by considering the meaning and the idea of the policy of jiulun going back to it’s originated concept of jiuju(exposure from above). Conclusively the reality of jiulun is more like an exposure than an litigation, that is, more like executive than judicial action. Especially to be worthy of note is that jiulun was used as means of evading the corvee which the despotic government levied on it’s subjects equally. So far as not so many cases of jiulun shows, it was used as legal path for evading the corvee duty mainly by the powerful upper classes and thus in reality jiulun seemed to go its way in opposition to the original will of despotic dynasty. Also the idea of jiulun also stands rather on the negative than positive side therefore it may not be a powerful supporting stand of the Chinese litigious society. When comparing the theory of Chinese litigious society with the original idea of Western litigious society, it might be said that both stand in opposition in considerable degree.