조선시대 향촌 제 組織과 規約의 ‘契約’적 성격

Abstract

The 'contractual' elements embedded in Hyang'yak, Dong'gye, Dong'yak and other mutual-aid societies were carefully examined in this article. First, whether we could secure some of such aspects (like the element of 'free-will' or 'voluntary agreement') or not, were ascertained. And second, the existence of such aspects was verified through various facts of the above-mentioned Choseon organizations, in terms of the scope of the contract, privileges and obligations dictated by the contract, and the nature of the contract itself(compulsory or not). Also, how such 'contracts' with a rather 'imperfect' nature, produced by a society determined by a society determined by social-class discriminations and local limitations, transformed themselves into more advanced social contacts was examined as well. The term 'Contract' basically refers to a kind of "social order that was generated by an agreement made by free-willed individuals", or a "promise based upon agreements between equal beings". In other words, 'contracts' are only a legal format, or an instrument of a social or economic order, and its existence and continuation primarily depends upon societal needs and requirements. Above all else, 'contracts' exist to be observed and obeyed. In this regard, it is not a difficult task to trace certain elements that could be considered as elements of a 'contracts' from the local rules of Choseon. They were all named with term like ‘agreement/合意,’ ‘promise/約束,’ ‘established promise/立約,’ and ‘agreement formed between the upper and lower levels of a county/上下同約’. They were inherently 'contracts.'The Choseon local rules and localized organizations were based upon the ‘mutual agreement format but, those are under the discriminative social stratification system, and localized community system. Therefore, privileges and obligations also premise uphold the Confucian values and the social-class-based order. However the force was being operated autonomously in either Gun&Hyeon regions or small areas like villages and counties, and not by the unilateral orders of the state government. Their regulations were not official and rather private and civilian. The chief overseers were prohibited by the system form abusing their power and arbitrarily running the unit, and that was a reasonable precaution on their part. Moreover, the Dong'gye and Dong'yak units of the 18th and 19th centuries showed lesser degree in their forcible nature, and the size of the group of people who were the object of such forcing got smaller and smaller. So, lower class people could escape and do other things they wanted, to eventually form their own Gye units that fit their own wished and agendas. 'Contracts' in other words, various formats of local rules and local bodies of the Choseon dynasty period, were based upon the social class system, in that regard they were not totally free or voluntary ones, but instead partially obligatory and also to some extent 'forced' ones, and alongside political governing they served as an instrument, supplementing and reinforcing the overall social order. However, horizontal contracts must have existed in the realm of commoners and peasants. Yet documents that testify the existence of such contracts are almost nonexistent.