연암 박지원의 刑政論 - 주자학 교화론의 更新 -

Abstract

Examined in this article is Park Ji-weon’s stance concerning the penal administration of the government. His such stance is well featured in Chilsago(七事考), a book that he wrote when he was serving as the prefect of the Chungcheong-do province’s Myeoncheon area. It also contain’s Park Ji-weon’s discussion of trials and lawsuits(聽訟), so that is what analyzed here in this article. His ideas for an adequate penal administration was yet another take on the original Neo-Confucian notion of the said institution, which dictated that ‘enlightenment’ should be attempted first, and punishment should only follow later’ when all other options are exhausted. It dictated so in the spirit of ‘Benevolence should be considered as the main principle, while penal ruling should remain only as a supplementary approach[德主刑補]),’ a spirit which prevailed the entire Joseon period. This notion was nothing short of a political ideology that was based upon Neo-Confucians’ sincere trust of the human moral nature[“good will, 性善”]. Yeonam also shared that, so rather than placing too much of an emphasis upon the necessity of law, he argued that human emotions and situational circumstances(情․理) should be examined as well. Of course, too much indulgence in compassion(人情) would distort the spirit of the law, so a prudent assessment and appreciation of the situation(“Shijung, 時中”) was widely recognized as always required. Problem was the hard nature of determining a course of action, based on a supposedly ‘prudent’ analysis of the situation. Some might demand relatively strict implementations of the law, while some others might argue the importance of compassion. Park Ji-weon argued that the latter approach, by forcing people to feel shame[恥] and encouraging them to listen to their sense of honor, would be the best way to maintain social order. Many people believed that such approach would lead to a society full of hypocrites, yet Park defined the second half of the 18th century as a time which could simply not expect noble men to rise and govern. He also argued that a level of hypocrisy, based upon public desires, should be tolerated to some extent, considering the circumstances. Especially regarding trial cases, which were essentially instances showing conflicts between morality and a ‘will to live[生理],’ Park Ji-weon generally supported the latter, displaying a compromise with the society and the time.