조선시대 소송제도와 外知部의 활동

Abstract

Attempted in this article is to determine the characteristics and defining qualities of the Joseon era trial system, in terms of its differences from its Chinese counterpart as well as some similarities with it. First discussed here are various aspects of Joseon trials, and also the apparent nature of the trial system itself. Subsequently examined is the Weji-bu(外知部) entities, who served as trial experts and also representatives in court. The point raised in this article is that a years-old notion which had believed that Korean people in the past had a rather conservative mind-set which tried to avoid trials at all cost could not be farther from the truth and therefore is nothing but a misconception. In the Joseon period legal fights and lawsuits which intended to protect civil rights and properties took place rather frequently in local regions. We can see that from not only the trial system itself of the time but also various records including 『Minjang Chibu-chaek(民狀置簿冊)』, which was a compilation of civil appeals(訴狀) submitted to local prefects with the intention to launch lawsuits. This article strongly argues that such trend of actually ‘favoring lawsuits(好訟)' could be attributed to the open atmosphere of the Joseon society that did not see such actions as a vice at all, and also the Joseon system that allowed civilians to launch lawsuits relatively freely. Also examined here, alongside characteristics of the Joseon trial system, is the role that was played by the Weji-bu(外知部) entities, who were virtually ‘representatives in court.’ Examination of their actions shows us that the service of these entities had been required even since the early days of the dynasty. They involved themselves in the proceedings of the case, and represented the interests of their clients in the court. Some of them even served in the capacity of scriveners(代書人) or lawyers which we can see today, as they were well versed in legal codes and were also armed with necessary information usually involved in court actions. The Joseon government was not fond of their activities, as it was the government’s general view that these Weji-bu entities were inciting legal fights and were practicing law in an illegal fashion. They usually punished them heavily, even in the latter half of the dynasty. As a result, just like the Songsa(訟師: Lawsuit consultants) entities who operated during the Ming anc Qing periods, Weji-bu entitles had to go beyond legal boundaries and covertly operate. Although the modern adversarial system based upon lawyers’ service in court was only established after the Gabo-year reforms, it is clear that the Weji-bu tradition of Joseon served as a platform for such a new establishment of a modern legal system.