15세기 후반 조선의 법률논변: 사비(私婢) 근비(斤非) 사건을 중심으로 = Legal Reasoning in the Late 15th Century in Korea: The Case of Geunbi, a bondwoman

다국어 초록 (Multilingual Abstract)

In 1479 a private bondwoman Geunbi (斤非. X) was convicted of killing her husband. She, twenty years old, had a sexual relationship with a man (B), a certain man (C) acted as a go-between. Eight days later, she then committed adultery with another man (A) who came to her because he was covetous of her. Then A said to her that he would kill B. But X did not tell anything to inform either B or anyone else. One day when X was sleeping with B, A killed B without any help from X to rescue B. The murder case was in 1479 put to the discussion before the king Seongjong (成 宗) three times according to the law. At first the Ministry of Criminal Justice held that X was to be beaten and put to deportation, but the king took her for deserved of a capital punishment, and the Ministry altered its proposal to a capital punishment. The ensuing deliberations with forty-eight mandarine high officers were concentrated upon two issues: whether or not B was X``s legitimate husband and whether or not X took part in the killing act. They were divided into two opposing opinions, one for the capital punishment, the other against it. Although the majority (56.25%) was against it, the opinion of the king who from the outset wanted her to be punished with death penalty prevailed at the end. The case shows how legal reasoning and argumentation of that time proceeded. It is worthy of mention that the then high justice was very careful, perhaps too careful, and the king very conscious about his role as a fostering pater patriae according to the Confucian statecraft ideology. The ruling king Seongjong was especially principled in the matter of law. Notwithstanding that, however, the administration of justice was suffering from the lack of professional jurists and reliable legal doctrine in a modern sense. As a result, the deliberations seem to be relatively less analytic and less systematic and rather strongly influenced by certain moral concepts such as the principles ruling basic human relations (in our case husband-wife relation). The fact-finding as such was apparently considered to be essential, but there were no proper ways in institutions of finding out the truth except torture, and the majority of the participants did not care much about the details. The legal norms in Dae-myeong-ryul (大明律) which formed the positive basis of their legal reasoning in criminal cases were also too casuistic to be a body of general legal rules applicable to ever engendering new situations. It is hinted out that the then ways of law depended upon the modes and ways of thinking of that time and culture as such.