조선시대 大明律 違令條의 적용 사례 연구

Abstract

The purpose of this paper is to study how a specific article in DaMingLu(the Great Ming Code) was applied to real cases in the Chosun Dynasty(1392~1910). The specific article refers to Article WeiLing(Violating the Commandment). According to Article WeiLing, in all cases of violating Ling(the Commandment), the offender shall be punished by 50 strokes of beating with a light stick. This refers to the cases where Ling(the Commandment) has a prohibition but Lu(the Code) does not stipulate a penalty. Lu(the Code) is a set of regulations to correct deviates, while Ling(the Commandment) is a set of rules to lead people. In Ling(the Commandment) the articles do not contain any specific penalties for violators. The penalties are supposed to be stipulated in Lu(the Code). However, Lu(the Code) does not necessarily stipulate the penalties corresponding to all prohibitions stipulated in Ling(the Commandment). Where Ling(the Commandment) has a specified prohibition but Lu(the Code) does not stipulate the penalty, Article WeiLing(Violating the Commandment) in DaMingLu(the Great Ming Code) shall be applied to the case. Some cases where Article WeiLing(Violating the Commandment) was applied in the Chosun Dynasty(1392~1910) show that the judicial officials interpreted Article WeiLing(Violating the Commandment) to this effect. Nevertheless, Article WeiLing(Violating the Commandment) was applied to many cases that had little connection to the violation of Ling(the Commandment). This means that Article WeiLing(Violating the Commandment) was applied by YinLuBiFu(application by analogy). In principle no act should be punished without being specially defined in Lu(the Code) and judicial officials should cite the specific articles of Lu(the Code). However, it is clear that the articles in Lu(the Code) could not cover all matters. When there is no specific article in deciding a penalty, a closely analogous article in Lu(the Code) is cited and applied. Article WeiLing(Violating the Commandment) contains no direct references to any specific type of act, which means it is an abstract provision. For this reason Article WeiLing(Violating the Commandment) was easily cited and applied with analogy in many cases. When Article WeiLing(Violating the Commandment) was applied by means of YinLuBiFu(application by analogy), its penalty, which was 50 strokes of beating with a light stick, was also considered. It is a rather light penalty. In consequence many of the cases in the Chosun Dynasty(1392~1910) show that Article WeiLing(Violating the Commandment) was applied by means of YinLuBiFu( application by analogy) to misdemeanors for which Lu(the Code) did not stipulate specific penalties.