15-16세기 문헌에 나타난 친족법관련 규범에 관한 일고찰

Abstract

After the Joseon Dynasty was fallen, the Empire of Japan put her civil law in operation to the Korean Peninsula by name of Joseon Civil Ordinance(1912). Just the prescriptions about a capacity, relative, succession were ruled by our customs not Japan civil law. However the Empire of Japan had extended an application of the her civil law farther through three times revision - for example a parental authority, a guardian, an age of marriage, a divorce through a trial, an affiliation, an acceptance of succession, an adoption, etc.- and the last its application covered all scopes of civil affairs. After the world war Ⅱ was over, the same situation was still maintained. The effort to establish Our Civil Code was begun at 1958 and it was in force since 1960. As it were before Japan civil law came into effect, the Joseon Dynasty had not civil law in modern viewpoints. But allowing that the scholar foundation of law was fragile and our unificative origin statutes about civil affairs were not instituted, a customary law and not a few laws and ordinances similar to a statute law about civil affairs were existed. Just the laws and ordinances were not modern. Many documentary records(for instance the Joseon Dynastic Annals, Kyongguk Taejon, Daejeon SogLog, Great Ming Code etc.) had analogous positions as a statute by a royal order and included many provisions about civil affairs. Therefore to belittle ourselves by reason of absence of statute is not desirable. This paper is made on the civil law in the period of the Joseon Dynasty(15C, 16C) with particular focus placed on documentary records and author classified many provisions in order to compare past things with current things. Through suchlike study, we could confirm that traditional norms provided the base of current revision particularly in the family law. Just it is very difficult to compare and arrange the many norms formed down through several hundred years of the period of the Joseon Dynasty. That's why an author progressed this study placing emphasis on the norms of a specified period(15C, 16C). Because the aim of this paper is comparison and investigation of 15C, 16C civil provisions and current those, the concrete study about many civil provisions at above-mentioned period and about the documentary records that period afterward may be held up.