대명률(大明律) ‘보고한기(保辜限期)’규정의 형사법적 의의

Abstract

In ‘Ta Ming Lu(大明律)’, penal code of the Joseon Dynasty, there are provisions titled by ‘Bogo-Hanki(保辜限期)’. It contains that : if someone beats or injures victim, it needs to have a fixed period for the conclusion of criminal result and due the period he/she is assigned to some duty. Concretely, at first in aspect of the conclusion of criminal result, several terms are defined for several types of heating or injury and then the result, only in that terms occurred, will be a basis of purnishment. Thus, if the victim die in that terms due to the injury, offender will be purnished as bodily injury resulting in death. But if out of that terms will be purnished only as bodily injury. At second in that terms the charge of restoration of criminal damage is imposed to the offender. If the damage is recovered well by the treating of offender, the punishment for offender will be decreased as a necessity. As a record of “the Annals of the Joseon Dynasty” these rules are applied rigorously for the serious consideration of human life, because these rules control whether the offender die or not. The rule of ‘Bogo-Hanki’ in ‘Ta Ming Lu’ has twice means in aspect of modern criminal law : a requisite of the offense, a rule for restoration of criminal damage. At first it will be a problem that whether these provisions are objective condition of punishment or not. But these rules have a function to determine the legal result of cirme directly, so these must be treated by a condition of completion for crime. In detail it is more reasonable to consider these rules as a concretive measure of objective Imputation, determining whether the normative danger is realized or not on the assumption that the causation for the crime is completed. Second one, in aspect of recovery of criminal damage these rules show that the ‘Ta Ming Lu’ intend to restoration of victim as a important purpose of punishment, in comparison with modern criminal law, it excludes the victim for the status of the party concernd. In this regard these rules can stand comparison with modern Case-Managing Mediation.