조선시대 소송의 성격과 판결의 집행에 대한 이해

Abstract

Civil procedures for realizing rights under substantive law include judgment procedures and enforcement procedures. Judgment procedures are the process of determining rights, and the practical realization of them takes place in enforcement procedures. In Joseon, there were also provisions corresponding to civil execution. “Gyeolhu-ingjibryul”(決後仍執律, If the party defeated who remains in possession of the property decided by a judgment is punishable by 100 beatings, 3 years forced labor, and the interests due to the occupation are given to the owner.) guaranteed the effectiveness of judgments by stipulating direct civil coercion along with criminal punishment. Here theoretically approach to civil execution in Joseon theoretically is tried. The progress of litigation in the traditional era tended to be party-oriented. Each stage was carried out in the form initiated by the request of the party, and continuing processes also proceeded with the confirmation of the party namely, “Dajim.”(pledge or oath) Since it is a form led by the parties, execution also appears as a pledge to performance. When a judgment is made, the losing party should submit the performance Dajim to endure compulsory execution in case voluntary performance wouldn't happen. Although this is issued to the winning party, it should be regarded as a public document because it is stamped with the official seal and signed by the judge in charge. In light of the fact that the performance Dajim can let a compulsory execution procedure begins, it can be understood today as a writ of execution. However, especially in late 19C- middle 20C, a number of pledges without a judgment were issued. Since the judgment and execution procedures are carried out in the same court, it seemed to make the Dajim issued instead of the decision by acknowledging its existence. In the late Joseon Dynasty, increasing cases that the implementation of the judgment had been denied and compulsory execution had not been performed became national issues. Above all, it stands out in lawsuits regarding cemeteries. They can be performed only by indirect coercion due to their nature. The system of party-oriented commitment is a structure that makes friends with indirect coercion in nature. It is because logically indirect coercion is a natural way to move the human intention. Moreover, digging up a grave itself constitutes a crime. Direct touching is bound to hesitate regardless of the public or private entity. Direct coercion was virtually impossible when the judgment debtor held out. Therefore, the only way left is indirect coercion. Although the laws regulating the direct coercions about the cemetery decision were enacted, they are not effective. It is also the reason why now a lot of performance Dajims remain without written judgments. It should be said that Joseon society could not succeed in solving these problems properly.