조선시대의 죄형법정주의의 이념적 기초와 실천적 함의

Abstract

The primary objective of this article is to examine which practical implication based on which ideological base is possessed by the principle of legality of Joseon. In addition, this article seeks to appreciate which values of Joseon's principle of legality can be handed down to today's criminal law, which is equipped with modern rationalism. The article also looks briefly into the exterior of Joseon's principle of legality had adopted for the two subjects mentioned above. Having explored the principle of legality of Choson I concluded as following: Joseon mobilised constitutional governance to implement Confucionism into their social politics. This process caused the criminal law to display more of the doctrin of mandotory sentencing rather than the principle of legality. The substantial reason to advocate the doctrin of mandotory sentencing was to primarily guarantee an equal penal application by eliminating the judge's discretion. Judges planned for an objective and equal legal application to reach the ultimate goal of Confucionism in democracy. This was not a simple principle of division of power, but an expression of love of the people by the king, who was the at the peak of the kingdom's authority. His consideration of an objective and equal legal application had been displayed as the doctrin of mandotory sentencing. In addition, objective law acted as a strict standard for legislative institutions. Merciless punishments sentenced to legislative officials reflects the strict standard, so does their permanent resignation, which limits them from being appointed into office. Like so, Joseon's principle of legality is an important implication which is relevant to today's penal execution of Korea. In the Korean society, the application of criminal law barely reflects the formal significance of the principle of legality, and is distinctly expressed in the famous Korean quote, "yujeon-mujoe, mujeon-yujoe (money talks and bullshit walks)." Furthermore, significant cases of subjective and unfair legal application are being strictly applied in crimes committed by the people, whereas relatively light penalties are sentenced for corruption by an authority or crimes committed by government officials. Korea's distorted criminal policy (perspective), where illegal acts by politicians or government officials are neglected, and law-abiding spirit is emphasised and foced upon the citizen, must seek for basic reconsideration from its past through Joseon's principle of legality.