조선 전기 奴婢와 主人 관계에 대한 지배층의 관념: - 成宗 8년(1477) 主人 謀害 사건을 중심으로-

Abstract

In this article a calumny case under the King Seongjong in the Yi-Dynasty (1477) is analyzed in respect of the search for a proper provision of the legal codes to be applied to the case. The fact of the case is like this: A woman called Gan-A Kim (“A”), wife of a man called Yu Yu, had tried to plot a false accusation of a fornication against a woman (“B”), wife of a man called Jeong-Hyeong An who is a cousin of Yu Yu. In order to accuse “B” “A” had persuaded the slaves of “B” called Geum-Dong (man. “C”) and No-Deok (woman. “D”) respectively to take on a cloth from a slave-buddhist monk Gak-Don (“E”) and to steal a cloth from “B” to secure them as a false evidence of a fornication. “C” and “D” had done their parts and let Mak-Dong (“F”), another aged slave of “B”, receive and keep them. Another slave called Mal-Dong (“G”) had carried them to “F”. Whether or not “G” had known the circumstances was disputed, but the majority supposed that he knew, while only two participants of the court meetings maintained somewhat weakly that he did not. The King was from the outset inclined to a severe punishment for all slaves notwithstanding that each of their malice and contributions was different. The further debate was essentially influenced by this attitude of the King. The application of the Da Ming lü (大明律) Article 278 (‘Plotting treason’: 謀叛) to “C”, “D”, and “E instead of the Gyeongguk Daejeon (經國大典) Article ‘Makung false accusations’ (告尊長) and the application of the Da Ming lü Article 277 (‘Plotting rebellion and great sedition’: 謀反) to ”F“ and especially “G” instead of the Article 278 (‘Plotting treason’) show that the legal reasoning of that time followed logically the way of an abduction, considering first the desired outcome (here: decapitation) and then searching for a proper legal provision ordering that outcome. Whether or not the provision which they found at the end was well suited in respect of its prerequisites seemed not to play a decisive role. They sensed probably no need to harmonize the rules which were applied to them even if there appeared an antinomy between them in respect of a value judgment. The application by analogy of the Article 277 and the Article 278 goes back to their legal sentiments and moral consciousness which stressed the hierarchical ordering of the slave-owner-relationship in accordance with the then valid morality. A plotting against the owner apparently was to be punished severely without any exception with death by decapitation. The King was impressively versed in the matter of the criminal codes of the land, played a leading role at the court meetings. The rule by law was firmly established, albeit the theoretical and practical jurisprudence, based on, but also limited by the fundamentally casuistic norms of the codes, never developed fully into a legal science in the modern sense.