淸末 法律修訂시 禮法論爭과 沈家本의 법사상 - 沈家本과 梁啓超의 변법이론 대비와 情ㆍ理ㆍ法 법률이념을 중심으로 -

Abstract

The Great Treatise(Commentary)(Hsi Tz’u Chuan: 繫辭傳) of the Book of Change (周易) says: “When one change has run its course, they alter. Through alteration they achieve continuity. Through continuity they achieve duration.” At the close of one dynasty dislocated by internal revolt & external invasion, there are two ways flee from disorder. One is a reform as a self-relief measure of the ruling classes, the other is a revolution of the ruled classes. Whether reform or revolution, epoch-making changes always are attended with re-codification of political, social, economical, and legal systems. Shen Jia-Ben(沈家本) took charge of the Cabinet minister in inner reform of law at the close of Qing(淸) Dynasty about ten years. Although his many year’s hard work has come to nothing because of the fall of Qing(淸) Dynasty before enforcement, his reform drafts had considerable influence on following legal systems of revolutionary government & Republic of China. This paper tries to make researches in controversy between propriety & Law in reform of law at the close of Qing(淸) Dynasty and legal thought of Shen Jia-Ben(沈家本) Contents are as follows. Chap.1 is introduction. Chap.2 will summarize the progress of legal reform and the main points of controversy between propriety & Law. Chap.3 will compare the theory on legal reform of Shen Jia-Ben(沈家本) with Liang Qi-Chao(梁啓超). There is an important difference between them. Shen had been engaged in official work of legal reform, and Liang had strived for innovation or revolution out of systems. So Shen’s legal thoughts are abundant of reality and short of revolutionary ideas. Inside reform must consider the possibility of enforcement & effectiveness and regard the compromise & mutual negotiations. There is a distinguishing quality of Shen’s viewpoints. Chap.4 will look into Shen’s legal ideas in his concrete explanatory & critical notes on historical legal systems & provisions concerning traditional concepts of qing(情: subjective sentiment or objective situation)ㆍli(理: reason)ㆍfa(法: law) in comparison with Occidental concept of principle of law. On relations between qing(情) ㆍli(理: reason) & fa(法: law), Shen’s ideas accord with the traditional. In legislation, laws should be made harmonizing with qing(情)ㆍli(理: reason). In judicial trial, judgments also should be decided harmonizing with qing(情)ㆍli(理: reason). Chap.5 will survey his ideas on manners and customs out of human feelings of people. In order to understand Shen’s legal ideas systematically & wholly, we must study further more conceptions implied in law & reason i.e. legal principle and their mutual relations. Nevertheless, Shen’s ultimate aim may be that through the successful legal reform, government & society steadily carry out reforms amid stability, so that China may accomplish modernization and recover sovereignty, reputation, and peace.