약천 남구만의 형정론刑政論에 대한 다산 정약용의 비판

Abstract

This paper is a research of the Tasan Chongyakyong's critics on Namguman's legal idea in late Choson Dynasty. Namguman suggested that severe punishment and rule of law without any exception is only way to control the people. Namguman also argued that unpremeditated homicide must be treated with the full rigor of the law, and he thought that if only weak and poor people should be subject to the law, they had strong dissatisfactions and injustice feelings to the government. Tasan criticized Namguman's legal idea was not a Confucian administration but a military rule. Tasan emphasized the difference between severe punishment and applying the rules strictly. First of all, Tasan made a proposal that all judge including magistrates, officials of the Ministry of Justice and even the kings will try to find exact law instead of moral judgment. Tasan stressed that the most important thing was a correct application of a law on behalf of sense of public morality to prevent all judge from abusing of their power, because all judge was apt to be impelled by strong moral emotion to overuse commutation and additional penalty. Second, Tasan criticized Namguman's argument of severe punishment to accidental homicide is not moderate, because crimes done deliberately was only punished according to the intendment of Confucian classics. Finally, Tasan tried to punish all the privileged people evading the law by imposing restrictions on their privilege, because there was a tremendous number of gentleman[Yangban] are exempt in late Choson dynasty.