조선말기 형사법과 근대적 형사입법활동에 대한 평가 - 죄형법정주의 개념과 형법대전의 근대성을 중심으로

Abstract

In the 《Hyeong-beob Dae-jeon(刑法大全)》as a initial result of the modern criminal legislation in the last period of Joseon Dynasty, we can find some elements of western-modern legal system in the structural aspect. It is composed by the general part and specific part like a modern criminal law. But, in the substantial aspect, it has mostly the contents of 《Ta-Ming-Lu(大明律)》and 《Dae-jeon Hoe-tong(大典會通)》. This point causes negative doubt about the modernity of 《Hyeong-beob Dae-jeon》 in spite of some reformative elements made in the times of 'Gab-o Reform(甲午改革)‘. Specially the problem, whether legislators of 《Hyeong-beob Dae-jeon》recognized and admited the concept of 'Nullum crimen, nulla poena sine lege(No law, no crime and punishment)'at that time or not, is very important point related with the modernity of 《Hyeong-beob Dae-jeon≫. Because, the concept of 'Nullum crimen,nulla poena sine lege' is basic principle for analysis and application of modern criminal law. Of course, grasping of the general character with only one concept has an obvious limit. But this trial may presents sufficient directivity for understanding the criminal system of Joseon and the modern legislations in the last period of Joseon. For an investigation of this issue, this work studies laws and ordinances, preceding the 《Hyeong-beob Dae-jeon》, in the flowering time of Joseon for finding logical connections with legislation of 《Hyeong-beob Dae-jeon》. Then,it tries to evaluate a modernity of criminal law and modern criminal legislation in the last period of Joseon Dynasty through an examination about the concept of 'Nullum crimen, nulla poena sine lege' in the traditional criminal system of Joseon and 《Hyeong-beob Dae-jeon》.