雪松 鄭光鉉 선생의 생애와 학문의 여정

鄭肯植(Jung Geung Sik) 한국법사학회 2016 法史學硏究 Vol.54 No.-

설송 정광현 선생(1902~1980)은 1930~38년 연희전문학교에서 법학을 교육하였다. 1950년 서울대학교 법과대학 교수로 부임하여 본격적인 연구를 하였으며, 평생 저서 10권, 논문 136편, 합계 146편을 발표하였다. 그는 학문적으로 엄정하였으며, 제자들을 교육할때에도 그러하였다. 그는 한국에서 친족상속법의 기초를 구축하였으며, 그의 연구성과는 서거 후 30년 지난 현재에도 의미가 있으며, 그의 역저 『한국가족법연구』는 이미 고전이 되었다. 그는 민법 중에서도 오로지 친족상속법만 연구를 하였으며, 그 목적은 가족법의 민주화, 나아가 사회의 민주화로 헌법의 남녀평등이념을 입법에서 구현하려는 것이었다. 이를 실천하기 위해 학술활동은 물론 대중계몽활동에도 적극적이었다. 그의 이러한 활동은 1956년 한국가정법률상담소의 창립으로 결실을 맺었다. Professor Seolsong Jung Kwanghyun(1902~1980) was teaching law at 1930-1938 at the Yonhee Professional School. He was appointed as professor of College of Law Seoul National University in 1950. In his lifetime, 10 books and 136 articles in total 146 pieces were released. He was academically sincere and strict, he was teaching students who would become scholars so. He has built the foundations of family law in Korea, his academic achievements are meaningful to us, even after his the demise 30 years passed. And his masterpiece “Korean Law of Family Relations and Successions: A Study of, its History and Interpretation” has already become a classic. He majored family laws, furthermore specialized only law of family relations among civil laws. His goal was to democratization of family law, ultimately to build democratic families in society and to realize the constitutional principles of equality between men and women. To practice it, he was aggressive in academic activities, as well as public activities. Finally, his activities were formed the basis of the establishment of the Korea Legal Aid Center for Family Relations at 1956.

특집 : 다산의 경세학 ; 참작감률(參酌減律)을 통해 본 다산의 법인식

정긍식 ( Geung Sik Jung ) 다산학술문화재단 2003 다산학 Vol.- No.4

With emphasis on the legal regulation, Chosun-dynasty (1392-1910) had incessantly edited the legal compilations from its early phase. The law and social reality, however, were not always congruent, especially in the respect of belittling the human lives. As a way to relieve the predicament in which the human lives were undervalued, Tasan Jeong Yak-yong (1762-1836) wrote a guide book on the attitudes of the provincial officers, criminal cases, and revision of the institution. This article attempts to examine the `rule of leniency`(參酌減律; Chamjakgamryul; to drop the death penalty in consideration of conditions and motivation of the crime) by analyzing Tasan`s thoughts about human lives and the social order. Tasan understands the etiquette(禮; li) as the coincidence of the natural law(天理) and human nature(人情), and assumes the heaven as the principal and the provincial officers as the delegators of the heaven. He believed that the exception needed to be acknowledged in interpreting the principles of law, history or historical facts, and scriptures. The law, to him, designated only a tool for the realization of ideal Confucian society. Tasan generously applied the rule of leniency to the crimes in which the criminal intention and accountability were unclear. For the crimes against the status order such as master-slave(主奴), husband-wife(夫婦), father-son(父子), and legitimate children- concubinary children(嫡庶; the child born from the first wife and the one from the concubinary wives) and against the moral justification, however, he executed the law rigorously without considering the leniency. He didn`t applied the rule of leniency to the crimes afflicted on the local people by the landed proprietors or the local officials. As he believed, both rigorous execution of the punishment and unconditional leniency would hinder from realization of the ideal Confucian society. While he emphasized on the principle of `nulla poena sine lege,` he applied the rule of leniency broadly. In this light, Dasan can be understood as the reformer of institutions within the ideals of Confucianism.

조선시대 법제사 연구의 검토와 연구방향 모색

정긍식 ( Jung Geung Sik ) 서울대학교 법학연구소 2021 서울대학교 법학 Vol.62 No.3

In this paper, I reviewed studies on legal history and sought research directions. Legal history is a field where law and history overlap, and studies the meaning of norms in a social context by analyzing laws from a historical perspective. The study of legal history first began during the colonial period. The colonial authorities studied the legal history to understand the customs and laws of Joseon society, which is deeply related to Japanese colonial policy. Colonial authorities and scholars defended colonial policy by defining the Joseon era as a society without laws or observing. After liberation, a small number of researchers studied jurisprudence in poor conditions, and it is characterized by a large number of practitioners. In addition, the codes of the Joseon Dynasty were constantly translated to establish a research foundation. The establishment of the Korean Society of Legal History in 1973 aimed at establishing Korean legal system provided an opportunity for individual researchers to study while sharing a sense of problem. However, the negative perception of law in modern Korean history has influenced the study of jurists, which has led to sluggish research. As democratization was thwarted in 1980, fundamental reflections on the law caused interest in jurisprudence, and in the late 1980s, both the legal and historical circles were interested in jurisprudence due to the increase of researchers. Since then, various institutions have expanded their research foundations through English and translation of legal history materials. In addition, as the role of the laws increased after democratization in the 1990s, the historical community valued the law in the study, and thereafter, high-quality research results were made. With the introduction of ancient documents in earnest in the 1980s, research using them increased. In particular, in the field of family and civil litigation, the actual situation was carefully described. Legal research should be strengthened based on historical research. The law should be analyzed in a social context to identify social and historical implications. Criminal justice research should be activated. There is also a need for a comparative legal approach.

≪조선경국전(朝鮮經國典)≫과 조선초기(朝鮮初期) 법제정비(法制整備)

정긍식 ( Geung Sik Jung ) 서울대학교 법학연구소 2015 서울대학교 법학 Vol.56 No.2

This paper proves that Chosunkyeongkukcheon(朝鮮經國典) was compiled officially in communion between King Taejo and Chung Tocheon(鄭道傳) rather than privately, with the help of the historical materials and the tradition of compilation in China. Chung`s idea to establish a new country was expressed in his major works, such as BulssiJabpyeon(佛氏雜辨), Kyeongchemunkam(經濟文鑑), and Chosunkeongkukcheon. He declared the outline of the ruling system that the Chosun Dynasty should aim for. This paper also proves that Chosunkyeongkukcheon was not the abstract of the preface but the whole text, as opposed to the argument of Suematsu Yasukazu(末松保和). The system of Chosunkyeongkukcheon originated in the sextant system of Churye(周禮) and was directly influenced by Kyeongsedaecheon(經世大典) of the Won(元) Dynasty. The order of Chosunkyeongkukcheon which was based upon Churye was reflected in the reform of government organization in the ruling period of King Sejong and became the prototype of the compilation of law books in the Chosun Dynasty. The body of Taemyeongyul(大明律) was introduced in the chapter of Heoncheon in Chosunkyeongkukcheon, which shows that Taemyeongyul was being received as general criminal law in the Chosun Dynasty.

식민지기 상속관습법의 타당성에 대한 재검토 -가족인 장남의 사망과 상속인의 범위-

정긍식 ( Geung Sik Jung ) 서울대학교 법학연구소 2009 서울대학교 법학 Vol.50 No.1

According to the Chosun Civil Ordinance(promulgated in 1912) and the Korean Civil Code(promulgated in 1958), customary laws on kinship and inheritance were acknowledged as legal sources which could be applied to cases before 1960. Although customs on inheritance during the colonial period were confirmed by the Chosun High Court of Justice, there still remained many problems about practical affairs. Especially the main issue was about who should be a legal heir in case the eldest son who was a household member died. This article approaches this problem from a historical point of view. A feature of the Chosun Dynasty changed from an equal society to a patriarchal one in the latter period of it. Customs confirmed during the colonial period focused on the household head system which gave priority to the eldest son. These customs reflected a real social aspect of the latter period of the Chosun Dynasty. Thus an argument that the Chosun Government-General of Japanese Imperialism distorted customs of the traditional Korean society intentionally to make them comply with those of Japanese Imperialism has no solid ground. However, it is also incorrect to argue that Japanese Imperialism had little influence on customs of the traditional Korean society. It is because the patriarchal system just recognized as a practice in the traditional Korean society got to be acknowledged as a norm during the colonial period. Japanese Imperialism played a decisive role in making customary laws standards of behavior.

서평 : 김효전(金孝全) 저(著), 『근대한국(近代韓國)의 법제(法制)와 법학(法學)』(세종출판사, 2006, 1209쪽)

정긍식 ( Geung Sik Jung ) 서울대학교 법학연구소 2007 서울대학교 법학 Vol.48 No.2

중범 김동희 교수 정년 기념호 : 논문 ; 속대전의 위상에 대한 소고 - 봉사(奉祀) 및 입후(立後) 조를 대상으로 -

정긍식 ( Geung Sik Jung ) 서울대학교 법학연구소 2005 서울대학교 법학 Vol.46 No.1

16세기 재산상속의 한 실례 -1579년 권지 처 정씨 허여문기의 분석-

정긍식 ( Geung Sik Jung ) 서울대학교 법학연구소 2006 서울대학교 법학 Vol.47 No.4

In this article, I analyze Mrs. Chung(鄭氏)`s manuscript of inheritance in 1579 to research the actual conditions of inheritances of properties and successions of ancestor worship in the Chosun(朝鮮) Dynasty. She was Kwon Ji(權祉)`s wife, a stem of Tonglae Chung(東萊 鄭氏). He was a stem of Yechoen(醴泉) Kwon and the father of Kwon Munhae(權文海) who was a famous scholar in Chosun Dynasty. Kwon Ji was dead at 1577 and Mrs Chung handed down her properties to three legitimate sons and daughter, three concubinary son and daughters obeying their promise in his lifetime. This manuscript was issued at 1591 by Mrs Chung, and is handed down in her descendant to now. It was valid in persons` signature and forms of documents due to customary regulations at that time. She handed down her properties observing laws and customs at that time. In the actual conditions of an inheritance of properties, daughters were equal to sons not only formally but also materially. Nobis(奴婢) were divided by ages and sexes, and lands were divided by sizes and districts equally to every successors. In the succession of ancestor worship, they did not obey laws and li(禮) but customs. The legitimacy eldest son succeeded to his father, the other son did his maternal grandfather, and concubinary son did his grandfather. Through these phenomena, we know that women were equal to men and Confucian norms were not persuaded widely in the 16th Century of Korea.

자료 : 16세기 입안 2건

정긍식 ( Geng Sik Jung ) 서울대학교 법학연구소 2006 서울대학교 법학 Vol.47 No.3

조선전기(朝鮮前期) 중국법서(中國法書)의 수용(受容)과 활용(活用)

정긍식 ( Geung Sik Jung ) 서울대학교 법학연구소 2009 서울대학교 법학 Vol.50 No.4

In this paper, I analysed usage and imports of Chinese legal books in the Early Chosun Dynasty(15~16th Centuries). During that times, 17 Chinese legal books were imported and used, they are as follow: Tangyulsoeui [唐律疏議, in 653], Tangyukchun [唐六典, in 738], Muwonrok [無寃錄, in 1308], Yihakchinam [吏學指南, in 1301], Taiwontongche [大元通制, in 1323], Chichungchogyuk [至正條格, in 1345], Euihyungyiram [議刑易覽], Taimyungyul [大明律, in 1397], Taimyungyulkanghae [大明律講解], Yulhakhaeyi [律學解이], Yulhaepyuneui [律解辨疑, in 1386], Eoche-taiko [御製大誥, in 1385], Taimyungryung [大明令, in 1368], Yulchosoeui [律條疏議, in 1461], Kyemongeuidu [啓蒙議頭], Taikwaneuidu [對款議頭], Sanghyungchueui [詳刑追議]. The usage of these books were differed by promulgation of Kyungkuktaechun [經國大典, in 1485]. Till 1485, they were used to improve not only legal and political system but also to solve criminal cases. After 1485, mainly the commentaries on Taimyungyul were used to understand and apply criminal cases to Taimyungyul because it became the general criminal code in Chosun Dynasty. This character was reflected open-minded aspects to accomplish reasonable legal solution by utilizing many legal materials.