不孝에 대한 사회적 含意와 그 適用

Abstract

Traditional Confucianism had great influences on the way of thinking of the East Asians. The value system that one loves one’s family members and his relatives based on self-love is at the heart of the academic principles of Confucianism. “Implication”(“綠坐”), the representative idea of Legalists in Qin Dynasty became an article of low. In Xi Han Dynasty, “Chun Qiu Jue Yu”(“春秋決獄”) and “Jing Yi jue Yu”(“經義決獄”)etc., which are the idea of “virtue first but penalty second” became the main aspect of law. “The system of remission which eight kinds of people could get”(“八義制度”) in Cao Wei Dynasty and “the noble men could use their ranks to compensate their crimes”(“官當制度”) in Nan Chen Dynasty(557~589) became article. The rules of etiquette vary according to the degree of intimacy of relatives and these differences eventually affected the enactment of the laws regarding the related matters. The scope of relatives in traditional China was based on both paternal and maternal lines. They considered as relatives up to nine generations going back to one’s great-great-grandfather. They also demarcated to include lineal and collateral relatives in their current generation corresponding to the above criterion applied to their ancestors. The dress code in mourning for the deceased indicated intimacy between the living and the dead. If the dead were one’s intimate relatives, one spent a long time in mourning dress which was coarser. On the other hand, if the dead were one’s distant relatives, one spent a relatively short time in mourning dress which was close to one’s ordinary clothes. The degree of kinship between assaulter and victim also affected the constitution of a crime and the extent of punishment. The criminal law system of traditional China was based on kinship. The present study, therefore, focused on crimes of relatives when it examined the criminal law system of traditional China.