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교정과 목민심서 : 현대형사사법에의 시사점-정약용의 목민심서를 통하여 본 우리 나라의 교정사상

원문정보

Chong Yak-Yong and our traditional Corrections in his Mokminsimso

김성수

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This paper is intended to serve an introduction to the topic of his corrections thought of Chong Yak-Yong(pen name : Tasan or Yoyudang,1762-1836) as an Sirhak Scholor in the nineteenth Century,by the Mokminsimso,one of his main works. He was banished to a region in 1801,where he remained 18 years,during this exile,he worked out in detail his reform ideas,Sirhak Ideology. His theory of statecraft and his reform ideas have been well compiled in his trilogy of works,Kyeongseyupyo(經世遺表)(1817) on central government organizationㆍMokminsimso(牧民心書)(1818) on local administrationㆍHumhumsinso(欽欽新書)(1819) on criminal administration.
Despite the rise of importance on his traditional legal thought and legal systems so far,very little has been done in this direction. Former studies are mainly focused on legal theory(thesis on law) between Ye(禮) and law as legal source,on the one hand,and his criminal policy in the book Humhumsinso, on the other hand. But in our view,both attitudes on this two directions are too limited.
My approach in this paper is based on the main texts of Mokminsimso, which treats the good attitude as a local adminstratins officers,mogmingwan, who were an administrative officier,a local judge and correction officer in those days, and in this point,had important role as a local law enforcement officer.
Before developing this analysis,to understand it more correctly,it's necessary to consider that we briefly survey its contents : 12 parts 72 articles, and among the rest,most important and is worth examining,are the third part Bonggong (Execution of the official duties) article 2 : Subeob (Observance of the law) and the ninth part Hyengjeon (Penal Code). The latter is again consist of 6 articles,which are as follows : Hearing of a law suit (Chengsong),Prison penalty and its execution (Danok),Discretion of the penalty (Sinheong),Tolerance on prisoners (Hyulsu),Prohibitions of abuse (Kumpok),Prevention of social harms (Jehai).
In the next chapter,we will first consider the definition of the law in his book and then the judgement,its penalty and its execution of a crime.
First of all, as regards law, he contends that it is the order of the king,so should be followed and decision should be based on this law.
Next he explains the objective of law enforcement(judgement and corrections), which is a finding of the true facts and the victims protections, and the fundamental attitude of a trial, which should be clear, prudent and with all attentions. The judgment on crime and law enforcement is the same principles as it, which is discret, fair,strict,and also quick. He also gives emphasis to judgement by evidence of a crime, rohibition of harsh treatment in the examination of a crime.
In his opinion, the objective of a punishment is derterrence and rehabilitation. Detailed classification of a crime and prohibition of exceeding the limit of penalty, protection of the weak, for example, women, the aged, a children is also emphasized for this objective. In that time, when local govenors are ignorant of crimimal rules, and recklessly tortured, gets confession, and makes a decision based on it, he tries to prevent abused punishment and gurantee human rights,and those are his main reform ideas. Also a deep interest in the human rights is given in the execution of a sentence. 
In general terms, despite the social constraints of those days, what we can see in this paper, is his legal thought of pragmatism, humanism as silhak  scholar, many pioneering advanced idea about guarantee of human rights, protection of the weak, through all the process of the inquiry, judgement, and its execution and corrections of a judgement and a penalty. In particular, some of the reforms of a trial and a prison he shows, are applicable also in light of today's criminal policy.
Certainly, this paper is limited a little in scope. There are a number of problems that remain to be explored. Further studies on different large scale assessments, are necessary, especially, his another two of three books on statecraft and moreover commentary on the Six Classics and the Four Books and another works(Yoyudangjeonseo). we hope that the present paper will be a step toward a richer and more inclusive understanding of the true reform legal ideas and practices of our great scholar.

목차

I. 머리말
 II. 법에 관한 정약용의 저술에 관한 선행연구
 III. 목민심서의 편제와 법ㆍ교정에 관한 내용
 IV. 목민심서에서의 법과 교정
  1. 법에 대한 인식과 法源
  2. 소송의 기본목적
  3. 재판과 법집행
   가. 범죄에 대한 판결과 형벌
   나. 신중한 판결과 형벌부과
   다. 교정(행형)에서의 수형자의 기본권보장
   라. 범죄예방
   마. 법학의 전문적 연구의 필요성
 V. 맺음말
 Resume

저자정보

  • 김성수 Kim, Seong-Soo. 경찰대 법학과(Korea Nat‘l PoliceUniv. civil law)

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