經國大典과 유언의 자유

Abstract

The provisions concerning the inheritance of private nobi (私奴婢) in the Part of the Criminal Law in the Gyeongguk-Daejeon (經國大典), the Great National Code of Joseon Korea, contain fundamental decisions on the issues of law of succession. However, there are many points which need further clarification, although there are certain studies which have already disclosed that freedom of the bequeather in disposing of his estates was established both in theory and practice. This article intends to support those preceding studies by analyzing more precisely than ever before the basic provisions pertinent to the testamentary inheritance. This task has been hitherto neglected somehow by the legal historians. The available Korean translations of the provisions, the sentences of which are, written in classical Chinese, to such an extent too compact to be understood with no effort, are more or less defective and distort the real meaning of the regulation. They are apparently misled, on the one hand, by the supposition that in Joseon Korea the principle of the equal share among the coheirs (pars virilis) prevailed at any rate and, on the other hand, that the authorities played a decisive role also in the testamentary succession. The analysis shows that the pertaining provisions clearly declare that a bequeather is free to make a will as well as to retract it as he wishes. Joseon Korea was a land which allowed freedom to make a will absolutely, even without requiring formalities in making a will as long as its authenticity was secured. A lot of various testamentary documents dividing estates of the deceased among the heirs [分財記] reflect this law correctly and give undeniable evidence to the freedom of the bequeather to dispose of his estates at will. Most of the scholarly opinions offer wrong or improper translations because they do not discern clearly enough the difference between the bequeather’s own disposition [許與], i.e. a testamentary succession, and the distribution of the estates of the deceased by the coheirs [和會], i.e. a settlement among the coheirs in a succession ab intestato. It is a pity that a popular translation of Martina Deuchler’s famous book The Confucian Transformation of Korea. A Study of Society and Ideology (Harvard University Asia Center, 1992) is giving a false impression that the author misunderstood and thus misrepresented the provisions concerned. This impression, however, is merely caused by a wrong translation of the crucial part describing the issue. The second part of the article deals with the Roman law of succession focusing on the freedom of a testation to provide a comparative perspective.