조선시대 분묘에 관한 소송

Abstract

This study is on the lawsuits related to the tombs during Chosun Dynasty. First of all, there was examined the procedure of how the provisions of the law that was applied to a lawsuit related to a tomb was legalized through what kinds of processes were taken. And also, there was examined how the governing law applied to a lawsuit related to a tomb was applied to the civil case judgment paper, “Gyeol-Song-Ip-Ahn (決訟立案)”. The definition of the boundary of a tomb specified in A National Law of Chosun Dynasty, “Gyeong-Kuk-Dae-Jeon(經國大典)” was not intended to prepare for a lawsuit related to a tomb. The provision was intended to prohibit any cultivation and livestock farming within a certain boundary of a tomb. After the middle period of Chosun Dynasty, conflicts regarding to tombs increased and were worsened. Accordingly, the lawsuits relating to tombs increased. However, since there were not so enough provisions relating to tombs in the National Law, “Gyeong-Kuk-Dae-Jeon(經國大典)”, the provisions of the law to be applied to the lawsuits relating to tombs were not enough, too. Therefore, many solutions were prepared case by case by having enacted the “Royal Order (受敎, Sugyo)”. Especially, the royal order (受敎, Sugyo) that allowed an over-occupation (廣占, Gwangjeon) on the surface of a mountain in 1676 was contradictory to the provisions of the National Law, “Gyeong-Kuk-Dae-Jeon(經國大典)”. In order to solve the problem, a new royal order (受敎, Sugyo) used to be enacted continuously and the accumulated royal orders were incorporated into the follow-up national law of “Gyeong-Kuk-Dae-Jeon(經國大典)”, so called, “Sok-Dae-Jeon(續大典)” when it was compiled in the late Chosun Dynasty. Especially, most of royal orders (受敎, Sugyo) relating to tombs were very important enough to be incorporated into the national law. In addition, the ruling cases related to tombs were examined by reviewing a civil case judgment paper, of Chosun Dynasty, “Gyeol-Song-Ip-Ahn (決訟立案)”. The characteristics of the lawsuits related to tombs that can be understood with the civil case judgment paper, “Gyeol-Song-Ip-Ahn (決訟立案)” are as follows. First, when a lawsuit related to a tomb was filed during Chosun Dynasty, a relevant judge applied the provisions of the law, “Gyeong-Kuk-Dae-Jeon(經國大典)” sincerely enough. Second, in case that the arguments of people concerned in a lawsuit relating to a tomb are sharply conflicted, a relevant judge measured the shapes of the mountain and the relevant tomb by visiting in person. Especially, the fact that it was not seen at a seat or while standing(坐立俱不見, ‘Ja-Rib-Gu-Bul-Hyun’) was an important factor for dividing victory or defeat at the court. Third, during the lawsuit relating to a tomb during Chosun Dynasty, a judge put a big emphasis on the theorem that is a law principal as well as the rules of law. After all, a judge at a lawsuit relating to a tomb during Chosun Dynasty judged by considering both of the ‘Theorem’ and a ‘law’ while examining comprehensive situations.