유가의 법 사상에 대한 일 고찰 ― 다산의 『흠흠신서』에 나타난 법과 도덕률의 균형을 중심으로 ―

Abstract

Confucians have once been identified as valuing morality and ignoring punishment. But what the Confucians argued was the rule of law based on the moral code. Criticizing the harsh rule of law of the Chin Dynasty, the Han Dynasty abolished the punishment on the body and collective punishment. This is because if you leave a punishment on your body, you will be stigmatized by society, and even if you reflect on your mistakes, you will be deprived of the opportunity to pursue a new life. This was because if collective punishment was enforced and only punishment was emphasized, another aspect of the law, the corrective function, would be crippled. Furthermore, the concept that the law should be derived from the principles of nature, and the notion that the law must conform to righteousness and humanity, etc., appeared. In other words, a kind of concept of natural law has emerged. Therefore the 'Confucianization of the law' is achieved. In this article, two key contents were found in the book of Tasan‘s Heumheum sinseo. First, the law was systematically operated on the basis of evidence. In the first case, on-site verification was carried out and both human and material evidence were obtained. By securing a coherent statement of high credibility, he sought to secure human evidence, and at the same time to find material evidence so as not to produce resentful criminals. In the second case, the evidence that was identified as definitive physical evidence was refuted, proving that it was nothing more than unclear circumstantial evidence. He also stated that when the victim's statement is changed, the initial statement is more important than the last statement. In the third case, it is argued that the victim's statement, the coronial report, and the fair testimony must be consistent. Second, it examined the higher-order equations for achieving the 'Confucianization of the law'. The fourth case re-examined the case of young girls who committed suicide in conflict with their stepmother. No matter how much a parent is directly or indirectly responsible for forcing their daughter to choose death, she should be punished with the death penalty. However, the case accurately stated that the stepmother did not engage in any causal acts that led to the suicide of her two daughters. In today's legal system, stepmothers will be acquitted. But Tasan did not stop there. He punished the daughters lightly, pointing out that they had insulted and ineffectualized their stepmothers. Although suicide is unfortunate, a slight punishment was imposed to make us aware of the shame of failing to keep filial piety. In the fifth case, he criticized the reality that morality is emphasized and the law is ignored. The case was a retaliatory murder of the wrong person for misunderstanding the death of her husband, and the judge praised the murderer as a the woman who keeps fidelity and acquitted her. He argued that since the unlimited expansion of the moral code leads to the collapse of the law and produces a pervasive counter-effect of false moral consciousness, the 'Confucianization of the law' must be kept in check under a certain degree of legal sanctions. In the sixth case, he sought a balance between law and morality, insisting that the law should be strictly enforced and morality should be commended.