조선 후기 민사재판에서 短訟의 의미와 재판격식의 변화상

Abstract

In the late Joseon Dynasty period, a kind of summary justice different from a formal trial was called dansong(short-trial), dansongcheogyeol or dansonggyeolgyeup(short-trial-decision). This article examines the meaning and realities of the short-trial and the formality of trial. Since the 17th century, the government tried to reorganize the three-times-wining-rule(samdodeuksinbeop) which meant not to hear the repeated lawsuit in which one party already won a case two times in three times trials. It raised a question how to treat short-trial decisions delivered without the procedural formality nor official records of judgment. In consideration of a situation that the short-trial was conducted ordinarily even in cases about lands, houses and slaves regarded as suitable for a formal trial, the government decided that the short-trial case in which one party continuously won three times with official copies of those judgments should not be heard again. A fee of a official copy of short-trial decision was half of a formal trial copy. In materials the short-trial was mentioned contrasted with a formal trial which was heard and judged according to ‘gyeuksik’(formality), ‘gwansik’(rules and regulations of authorities) or ‘songche’(entity of a lawsuit). The expression of ‘according to gyeuksik’ generally meant that the trial was deliberated and ruled according to rules and regulations. ‘According to the gwansik’ was a idiomatic phrase with a close relation with the final phase of proceeding to confirm two parties’ recognition and intent that their arguments and pleads were heard sufficiently and that they now ask to decide their case according to gwansik. The instrument for this confirmation was called ‘gyeolsongdajim’ (confirmation and oath for deciding a case). Therefore, the judgment ruled after this confirmation procedure meant that the trial was deliberated and ruled in full form. The ‘songche’ had three meanings:a lawsuit, entity and form of lawsuit, and standards and principles of hearing. While the ‘gyeuksik’ implied more concrete and strict formality, the ‘songche’ had more flexible meaning. As the formality of trial continued to be loose and simplified, the gwansik’s procedure tended to be omitted and the expressions referring to the formal trial compared with the short-trial converged on ‘trial with songche’s formality’, of which the meaning vaguer than that of the gyeusik. The ordinary way of the short-trial decision was that magistrates just wrote his opinion or disposal in the margin or the back of litigants’ written complaint through summary hearing. Rarely in case of the application of the winner party, magistrates wrote and issued a brief record of decision, of which the reliability seems to be hardly comparable to that of a official copy of a formal trial. While recognizing that the short-trial practice was causing careless decisions and the repetition of litigation, the government did not restrain the short-trial practice itself nor impose adequate forms on it. The abolition of a official copy fee of decision in the early mid-19th century probably accelerated the trend of simplification of the formality because the revenue from the fee had been one of reasons to motivate the magistrates to comply with or to pretend to comply with the forms and rules for lawsuit in order to make a official record of decision. The proper rules and forms characterizing the civil trial of the Joseon Dynasty Korea were formed and had a important procedural function on the ground of a series of legislation to cope with a congestion of litigations in the early Joseon period. In a sense the simplification of the formality suggests the decline of the proper or unique rules and forms of the Joseon Korea. It maybe inadequate to say that the short-trial practice was a phenomenon of the late Joseon period or that it was just a extraordinary or deviational way of justice. It needs to be considered that the short-trial was a plausible way and a basic form of justice in the world where the judgment was functioning as a part of the ordinary administration by the local and central magistrates to rule people’s private affairs. The Joseon Korea’s law and practice of civil trial, it can be said, developed and declined above the summary-trial-style justice which lied on the base. To explain its background and factors will deepen our understanding about the law and society in the traditional Korea.