朝鮮前期 刑罰의 目的: 大明律 刑律의 分析을 中心으로

Abstract

Taminglu(大明律) performed a significant role as a source of criminal law in trials of Choseon dynasty. However, the argument that Taminglu was a general criminal law in Choseon distorted historical evidences. This unswerving stance that was not recognized the fallacy insisted that Taminglu held the status as general criminal law like modern Korean criminal code in Choseon dynasty. This distortion derived from the deficiency of analysis and review on the historical documents. Also, it maintained that even if Tanglu(唐律) often provided legal reasons for King Sejong (and including other Kings) and high-ranking government officials to judge Tanglu was not valid law. Nevertheless, in Choseon dynasty, not only Tanglu but even confucian scriptures that were not recognized as legal codes, such as the canon of history(書經) and the book of odes(詩經) were the source of law. The confucian scriptures afforded reasons in legal reasoning to the judicial officers as the legal principles. In particular, Kings and officers quoted provisions and interpretation from Tanglu in legal reasoning until the 17th century. In this respect, the argument Tanglu was not the current law at that time is definitely wrong. And The doctrine Taminglu was the general criminal code of Choseon perverted the truth on the legal system and criminal law during the early days of the Choseon dynasty. King’s laws(受敎) were based on the royal commands which had been reviewed by the officials as an inspector held the core legal status of legal system in Choseon. And legislator and Judicial officials who applied rules were undifferentiated at that time. In this respect, the consultative group King and high-ranking government officials constituted had the power of the legislature and the judicature. Therefore, King’s law(受敎) played a leading role in the trials. Taminglu was one of the main and important legal sources. Criminal justice of choseon was based on the philosophical purpose of criminal punishment and it was the confucian edification. Criminal codes of ancient east asia, such as Tanglu, Taminglu, and the king’s laws(受敎) were enacted by philosophical purpose and the laws were interpreted by the philosophical purpose. Thus, understanding the context of history of philosophy is most important thing to explain about criminal justice and legal history in ancient Korea. Without understanding of history of philosophy, nobody comments exactly the legal history and criminal justice of Choseon. Legal system was designed and worked according as government(were not divided into three parties, the Executive, the Legislature, and the Judicature) should pursue the confucian telos of nation. Therefore, I demonstrated criminal law and criminal justice of Choseon dynasty from the standpoint of confucian purpose, that is, the edification. This research reviewed not only the legal status and role of criminal codes, such as Taminglu, but the codes and criminal justice of Choseon were based on the confucian purpose of criminal punishment, namely, ‘edification’(敎化).