대명률의 죄형법정주의 원칙

Abstract

In this paper, I researched the principle of “nullum crimen, nulla poena sine lege” in the Great Ming Code[大明律] which was the general source of criminal laws in the Chosun dynasty. In strict meaning, this principle is a historical result of the modern western society. But it is a declaration of this principle that detailed crimes and their punishments were provided in laws and codes. In traditional China, this principle was a device to rule people equally prohibiting public officials’ arbitrary punitive authority. So people were protected indirectly by criminal laws. In traditional China, this principle was stipulated in the Tang Code[唐律] compiled in AD 653, and was maintained in the Great Ming Code promulgated in 1397. In the Great Ming Code, this principle was manifested in the next articles: Article 45 “Deciding Penalties in Accordance with Newly Promulgated Code[斷罪依新頒律]”, and Article 439 “Citing the Code and the Commandment in Deciding Penalties[斷罪引律令]”, Article 38 “Principles for Increasing and Reducing Punishment[加減罪例]”. And then in Section 28 Judgment and Imprisonment[斷獄] of the Great Ming Code, It was compelled for public officials to obey the laws, if they did not so, they were punished by laws. So this principle was observed firmly. But there were exceptions in this principle. They are as follows: Article 46 “Deciding Cases without Specific Articles[斷罪無正條]” which is an analogy in interpretation of criminal laws, and Article 409 “Violating the Commandment[違 令]” which is a punishment without noticing, Article 410 “Doing What Ought Not to Be Done[不應爲]” which is a customary punishment. In these points, it was argued that there was no this principle in the Great Ming Code. But considering particular constituent elements and understanding of crimes, this principle was maintained limitedly. After the 1894 Reformation, this principle based on the Great Ming Code was denied and the western principle was accepted in the Chosun dynasty. But in the Penal Code of the Imperial Korea[刑法大全] in 1904, the western principle was disappeared and the traditional principle was restored. The western principle was accepted by the Japanese Governor-General’s Decree about Criminal Rules[朝鮮刑 事令] in 1912.