조선시대 詞訟재판의 두 양태 - 해남윤씨가 소장 決訟立案을 중심으로 -

Abstract

The lawsuits in Joseon shows us that a consciousness of one’s own ownership rights, and the determination to protect it through trials when it was violated, indeed existed. Gyeol’song Ib’an(決訟立案) documents, the ruling documents for civil “Sa’song(詞訟)” lawsuits of the time, shows us that the Joseon people used suits and trials as a method to preserve one’s private rights, as well as to resolve a social conflict. There are two Gyeol’song Ib’an documents found from the collection of age old documents currently in custody of the Haenam Yun house archives, and they are examined in this article. <1716 Gyeol’song Ib’an(GI-B)>, which shows us that civil issues and penal issues were in some cases dealt with separately, in terms of lawsuit filing as well as ruling at the court, shows us that the Haenam prefect(Hyeon’gam) oversaw the trial from an objective and neutral position, based upon a principle of a system that might as well be considered to be the premodern counterpart to the present day’s adversary system and mutual hearingprocedures. The document also lets us know that the prefect ruled the case based upon evidence material, fulfilling the spirit of civil lawsuits in general, which was to ‘protect private rights’ and ‘contribute to the resolution of social conflicts in order to uphold the law and order.’ On the other hand, <1686 Gyeol’song Ib’an(GI-A)>, which shows as that a lawsuit was from time to time proceeded on civil and penal fronts at the same time, also shows us that the Haenam prefect, at a different time and in a different trial, examined the defendant and witness in order to secure a confession, upon which he would base his ruling, in an “offizialprinzip” manner. In the premodern societies, the main value the law pursued was the establishment of a righteous ideal. In trials, a legal perspective dedicated to the determination of right or wrong was considered essentially secondary, while a moral perspective that would ensure the punishment of the evil and encouragement of the good was considered a priority. Instead of <GI-B>, which shows us the case of an objective and strict law enforcement, <GI-A>, which was based upon moral values(倫常), was the more familiar type of trial at the time. But coming into the modern period, equality among all people became the norm, and established was a principle that would not allow standard criteria determining the severity of the punishment to be based upon social classes and stratification. After March 1895, it was also established that civil trials and penal trials should be separated. <GI-B> types of trials became the norm, while <GI-A> trials faded into history.