환퇴 관습으로 본 조선시대 법제와 관습법의 관계

Abstract

In the Code of the Joseon Dynasty(1392-1910) are only a few articles related to civil and commercial laws. The lack of civil legislation is pointed out as a characteristic of the Eastern legal system. May it be said that Joseon is a society operated without civil law? Since the community in the traditional era was on a homogeneous social structure based on agriculture, customary laws that had been established for a long time could have functioned in the civil sector and these well-known norms did not need to be codified. However, in cases where they became contrary to national policy, written legal regulations should be involved, because they cannot be left alone just because they are private practices or customs. It should be regarded that civil transactions have been entrusted to customary law, and only important matters to regulation in specific legislation. The principle of freedom of contract worked on Joseon’s judicial order too, and the fact of no civil code may rather prove it. This characteristic can also be confirmed in the continuation of legislation that presupposes the existence and effectiveness of already established civil and commercial practices. As an example, here I look up the custom of Hwantoe(환퇴, 還退, repurchase, redemption, retraction) through the legislation related to it and transaction documents. Gyeonggugdaejeon, the highest universal code in Joseon says that the contract established cannot be retracted after 15 days at the most. It is the supplement and regulation on the premise of the custom that the sale of important property such as real estate can be redeemed immediately after the transaction. In sales parties could add repurchase conditions. this kind of condition for rescission was well used even to establish a collateral function equivalent to a mortgage and to create financial credit through the value of real estate. Hwantoe could be also exercised on the reason for cancellation arising due to a defect that was not anticipated at the time of the contract. The subjects of Hwantoe do not stop at real estate, movable property and slaves. It was used for rights such as exclusive goodwill to deliver official supplies or the usufruct of land. The code regulated it to prevent land theft taking advantage of the owners’ hardship, while presupposing the recognition of various functions of Hwantoe. Hwantoe’s operations were not stipulated by law but just formed through custom, which had been working for several hundred years. About Hwantoe the legal conviction of the community appears in the attitude of related legislation and practice in Joseon. The provisions in the code are supplementary and restrictive regulations on the basis of acknowledging civil customs in society. It also raises the question of how to grasp this kind of civil order, which is naturally recognized as legal premises in the highest code. It can be called customary law.