개화기 분묘에 관한 소송

Abstract

This study is regarding a tomb lawsuit during the enlightenment period. It examined the process of enactment of the legal system for resolving disputes regarding tombs during the enlightenment period. In particular, the amendment of the tomb lawsuit in 1900 has brought a full-fledged classification of criminal and civil lawsuits, which was not distinguished in the traditional legal system. Between 1895~1905 during the enlightenment period, the provisions regarding tombs in ≪Taejonhoetong(大典會通)≫ were applied as the governing law of trial, while the provisions regarding tombs in the ≪Criminal code(刑法大全)≫ were applied as the governing law of trial between 1905~1909. In particular, in the ≪Criminal code(刑法大全)≫, the general public, in contrast to the code of the previous time, had a tomb size limit of 10 steps, which can be considered as a basis for increased public litigation. In addition, the tomb lawsuit, which has been finished for more than 20 years, is no longer accepted due to the deadlines for filing of a suit. In addition, about 200 tomb-related judgments appearing in 『Civil cases in the late period of Chosun(舊韓末 民事判決集)』 were analyzed. Through these judgments, the tendency to handle lawsuits related to tombs was identified. First, the lawsuits related to tombs began when a tomb was created without permission of the original landowner. Second, in cases of disputes related to tombs, the judges of the Court faithfully applied the provisions of ≪Taejonhoetong(大典會通)≫ and ≪Gyeonggukdaejeon(經國大典)≫. Third, the terms of the deadline for no further hearings after 20 years have been an important grounds for argument in the tomb lawsuit. Fourth, in the tomb lawsuit, in addition to the definite provisions, the normative provisions such as ‘Jung(情)’, and ‘Li(理)’, were applied as the basis of trial. Especially, the fact that it was not seen at a seat or while standing ‘Gwaripgubulhyun(坐立具不現)’was an important factor for dividing victory or defeat at the court. Fifth, the Court tried to resolve disputes through reconciliation between the parties.