Judicial History Materials Exhibition Sourcebook Volume I Table of Contents
02 Preface 04 Thematic Commentary – Joseon’s Public Institutions in Symbiosis with the People’s Grievances
Chapter 1 Joseon: Aspirations for the Rule of Law Take Root
10 Glimpse into Joseon’s Laws 12 Joseon’s Judicial Materials and Major Places of Custody 14 Joseon, Age of Uniform Code 16 Joseon’s Codification 18 Daemyeongryul and Joseon’s Hyeongjeon 20 Types of Trials and Judicial System of Joseon
Chapter 2 Litigations in Joseon: People’s Voice is Heard, Justice Blossoms
24 Law Practice Handbook 26 Criminal Procedure Handbook and Case Records 28 Joseon’s Court Reports 29 Joseon’s Court Procedure 30 Certified Judgments 32 Certified Judgment on Slave Lawsuit 34 Certified Judgment on Housing and Land Lawsuit 36 Certified Judgment on Burial Ground Lawsuit 38 Certified Judgment on Criminal Proceeding
40 Bibliography Table of Contents
02 Preface 04 Thematic Commentary – Joseon’s Public Institutions in Symbiosis with the People’s Grievances
Chapter 1 Joseon: Aspirations for the Rule of Law Take Root
10 Glimpse into Joseon’s Laws 12 Joseon’s Judicial Materials and Major Places of Custody 14 Joseon, Age of Uniform Code 16 Joseon’s Codification 18 Daemyeongryul and Joseon’s Hyeongjeon 20 Types of Trials and Judicial System of Joseon
Chapter 2 Litigations in Joseon: People’s Voice is Heard, Justice Blossoms
24 Law Practice Handbook 26 Criminal Procedure Handbook and Case Records 28 Joseon’s Court Reports 29 Joseon’s Court Procedure 30 Certified Judgments 32 Certified Judgment on Slave Lawsuit 34 Certified Judgment on Housing and Land Lawsuit 36 Certified Judgment on Burial Ground Lawsuit 38 Certified Judgment on Criminal Proceeding
40 Bibliography Preface
On Publication of the English Version of the During the Joseon Dynasty, such uniform codes as ≪Gyeongguk Daejeon, 經國大典≫ was published as its governance norms. In ad- ≪Judicial History Materials Exhibition Sourcebook≫ dition, those parts of its codes and law books directly applicable to trial procedure were selectively compiled into handbooks on proce- dure and legal affairs. The
On Publication of the English Version of the During the Joseon Dynasty, such uniform codes as ≪Gyeongguk Daejeon, 經國大典≫ was published as its governance norms. In ad- ≪Judicial History Materials Exhibition Sourcebook≫ dition, those parts of its codes and law books directly applicable to trial procedure were selectively compiled into handbooks on proce- dure and legal affairs. The
Joseon’s Public Institutions The two most well-known descriptions very foundation of natural order and social harmony was shaken. In representing Korea and Koreans were a the end, the severance of litigation policy turned out to be unsustain- in Symbiosis with country of courteous people in the East, able, and was converted into a reasonable legal procedure geared to- because Koreans consistently observed ward preventing disputes. the People’s Grievances proprieties, and the white-clad folk, be- cause Koreans enjoyed wearing white Rule of Law with an Ear for the People Professor Jung Geung-sik clothes. Thus, Koreans have prided them- Advocating the “rule by law,” Joseon consistently published code books, Seoul National University School of Law selves on being capable of living without including procedural rules shaped by the cumulative cases of dispute the law. But what about now? Judges suf- resolution. During the early Joseon Dynasty, dispute resolution on land fer from backlogged trials, prosecutors and slaves, which were considered important property, shaped proced- are swamped with piles of cases, and po- ural laws, which were included in ≪Gyeongguk Daejeon (經國大典)≫, lice officers are bombarded with accident and two sections in Yukjeon, namely,
04 05 Thematic Commentary
Joseon’s Public Institutions The two most well-known descriptions very foundation of natural order and social harmony was shaken. In representing Korea and Koreans were a the end, the severance of litigation policy turned out to be unsustain- in Symbiosis with country of courteous people in the East, able, and was converted into a reasonable legal procedure geared to- because Koreans consistently observed ward preventing disputes. the People’s Grievances proprieties, and the white-clad folk, be- cause Koreans enjoyed wearing white Rule of Law with an Ear for the People Professor Jung Geung-sik clothes. Thus, Koreans have prided them- Advocating the “rule by law,” Joseon consistently published code books, Seoul National University School of Law selves on being capable of living without including procedural rules shaped by the cumulative cases of dispute the law. But what about now? Judges suf- resolution. During the early Joseon Dynasty, dispute resolution on land fer from backlogged trials, prosecutors and slaves, which were considered important property, shaped proced- are swamped with piles of cases, and po- ural laws, which were included in ≪Gyeongguk Daejeon (經國大典)≫, lice officers are bombarded with accident and two sections in Yukjeon, namely,
04 05 These books began to be distributed in the form of manuscript from ernors not directly in charge of trials, as a means to provide practical the mid-16th century. Some of them were plundered by the Japanese assistance. during the Japanese Invasion of Korea in 1592. These include ≪Sangpi (相避)≫, ≪Sasongyucho (詞訟類抄)≫, ≪Cheongsongjegang (聽訟提綱)≫, and Lawsuits that Restored Rights and ≪Daejeonsasongyuchwi (大典詞訟類聚)≫. The most representative book Quenched the Thirst of the Aggrieved is ≪Sasongyuchwi (詞訟類聚)≫, a civil procedure handbook edited by From the late the 15th century, Waejibu entities were banned, so as Kim Baek-gan and published by his son Kim Tae-jeong in Gwangju in to inhibit legal actions, because they helped and encouraged litigants 1585 (18th year of King Seonjo’s reign), when serving as Jeolla provin- around Jangyewon (掌隷院), the government agency in charge of slave cial governor. litigations. The title Waejibu disappeared approximately 100 years later, but legal actions did not. In spite of the government’s negative stance Compilation of Joseon’s and suppression, the people not only used, but also enjoyed bringing le- Extensive Laws and Regulations gal actions to restore their rights and resolve their grievances. For these By subject and along procedural steps, Sasongbeopseo selectively com- people, ≪Yuseopilji (儒胥必知)≫, a collection of various litigation forms, piled those excerpted provisions on civil action mainly from ≪Gyeong- was compiled and widely used in the late 18th century. The people ac- guk Daejeon≫, combined with those from ≪Daemyeongryul≫ and tively utilized the law to make their cases and exercise their rights. ≪Daejeonsokrok≫, as well as various Sugyos (受敎) from ≪Daejeon- All trials were completely driven by the parties, based on written doc- husokrok≫. The body of the book first lays out the procedural rules, uments. Written judgment was called
06 07 These books began to be distributed in the form of manuscript from ernors not directly in charge of trials, as a means to provide practical the mid-16th century. Some of them were plundered by the Japanese assistance. during the Japanese Invasion of Korea in 1592. These include ≪Sangpi (相避)≫, ≪Sasongyucho (詞訟類抄)≫, ≪Cheongsongjegang (聽訟提綱)≫, and Lawsuits that Restored Rights and ≪Daejeonsasongyuchwi (大典詞訟類聚)≫. The most representative book Quenched the Thirst of the Aggrieved is ≪Sasongyuchwi (詞訟類聚)≫, a civil procedure handbook edited by From the late the 15th century, Waejibu entities were banned, so as Kim Baek-gan and published by his son Kim Tae-jeong in Gwangju in to inhibit legal actions, because they helped and encouraged litigants 1585 (18th year of King Seonjo’s reign), when serving as Jeolla provin- around Jangyewon (掌隷院), the government agency in charge of slave cial governor. litigations. The title Waejibu disappeared approximately 100 years later, but legal actions did not. In spite of the government’s negative stance Compilation of Joseon’s and suppression, the people not only used, but also enjoyed bringing le- Extensive Laws and Regulations gal actions to restore their rights and resolve their grievances. For these By subject and along procedural steps, Sasongbeopseo selectively com- people, ≪Yuseopilji (儒胥必知)≫, a collection of various litigation forms, piled those excerpted provisions on civil action mainly from ≪Gyeong- was compiled and widely used in the late 18th century. The people ac- guk Daejeon≫, combined with those from ≪Daemyeongryul≫ and tively utilized the law to make their cases and exercise their rights. ≪Daejeonsokrok≫, as well as various Sugyos (受敎) from ≪Daejeon- All trials were completely driven by the parties, based on written doc- husokrok≫. The body of the book first lays out the procedural rules, uments. Written judgment was called
06 07 Chapter 1
Joseon: Aspirations for the Rule of Law Take Root
Glimpse into Joseon’s Laws 10 Joseon’s Judicial Materials and Major Places of Custody 12 Joseon, Age of Uniform Code 14 Joseon’s Codification 16 Daemyeongryul and Joseon’s Hyeongjeon 18 Types of Trials and Judicial System of Joseon 20
Hyeongjo of the Joseon Dynasty
A complete map showing the arrangement of the government office of Hyeongjo (刑曹; Ministry of Justice) located in the palace, which appeared in ≪Chukwanji (秋官志)≫, a compilation by Park Il-won (official title: Nangcheong) of cases under the jurisdiction of Hyeongjo, published in 1781 (5th year of King Jeongjo’s reign). Chukwan refers to Hyeongjo, a government agency responsible for judicial, criminal, and punitive affairs of Joseon. In addition to Hyeongjo, such other government agencies as Hanseongbu, Uigeumbu, and Jangyewon also carried out certain judicial responsibilities. Housed in the Seoul National University Kyujanggak Institute for Korean Studies. Chapter 1
Joseon: Aspirations for the Rule of Law Take Root
Glimpse into Joseon’s Laws 10 Joseon’s Judicial Materials and Major Places of Custody 12 Joseon, Age of Uniform Code 14 Joseon’s Codification 16 Daemyeongryul and Joseon’s Hyeongjeon 18 Types of Trials and Judicial System of Joseon 20
Hyeongjo of the Joseon Dynasty
A complete map showing the arrangement of the government office of Hyeongjo (刑曹; Ministry of Justice) located in the palace, which appeared in ≪Chukwanji (秋官志)≫, a compilation by Park Il-won (official title: Nangcheong) of cases under the jurisdiction of Hyeongjo, published in 1781 (5th year of King Jeongjo’s reign). Chukwan refers to Hyeongjo, a government agency responsible for judicial, criminal, and punitive affairs of Joseon. In addition to Hyeongjo, such other government agencies as Hanseongbu, Uigeumbu, and Jangyewon also carried out certain judicial responsibilities. Housed in the Seoul National University Kyujanggak Institute for Korean Studies. Chapter 1 Joseon: Aspirations for the Rule of Law Take Root
Glimpse into Joseon’s Laws
Myths about Lawsuit in a Traditional Society “You shall know your sins!” “ Do you mean to make it like a trial by a county magistrate?” These words were often used to criticize the disagreeable litigation practices. The sentiment has to do with a misper- ception that trials were swayed by judges’ discretion and there was no distinction between civil and criminal cases in Joseon. However, recently discovered judicial materials of Joseon and research literature are enough to keep us ad- miring the content and reasonableness of Joseon’s litigation system.
Balance between “Absence of Litigation” and “Litigation” As a society subscribed to Confucianism and in accord- ance with the saying of Confucius, “I know as well as any other how to preside over a trial. Yet, I insist on creating a non-litigious society,” Joseon ideologically aspired for a non- litigious society. However, it did not avoid litigations in fact. Litigations were considered offensive, but no one hesitated to rush to the courthouse if necessary.
Sophisticated and Rational Application of the Law The Joseon Dynasty published a uniform code by applying mutatis mutandis the exemplary code of ≪Daemyeongryul≫, and selectively compiling the more permanent provisions of Sugyos (受敎), king’s decrees on domestic matters. This uni- Haechi Rank Badge on the Official Uniform of form code was scrupulously applied to individual cases. This Daesaheon (Attorney General) application process is trial, the details of which can be culled Haechi is an imaginary animal capable of judging what is right and wrong. It was believed to be a righteous from written judgments. presence aiding the king. A Haechi design was used on a rank badge on the official uniform of Daesaheon (Attorney General) in Joseon. Haechi sculptures were also found in front of palace gates to avoid fire or disaster. Housed in the Korea University Museum.
10 11 Chapter 1 Joseon: Aspirations for the Rule of Law Take Root
Glimpse into Joseon’s Laws
Myths about Lawsuit in a Traditional Society “You shall know your sins!” “ Do you mean to make it like a trial by a county magistrate?” These words were often used to criticize the disagreeable litigation practices. The sentiment has to do with a misper- ception that trials were swayed by judges’ discretion and there was no distinction between civil and criminal cases in Joseon. However, recently discovered judicial materials of Joseon and research literature are enough to keep us ad- miring the content and reasonableness of Joseon’s litigation system.
Balance between “Absence of Litigation” and “Litigation” As a society subscribed to Confucianism and in accord- ance with the saying of Confucius, “I know as well as any other how to preside over a trial. Yet, I insist on creating a non-litigious society,” Joseon ideologically aspired for a non- litigious society. However, it did not avoid litigations in fact. Litigations were considered offensive, but no one hesitated to rush to the courthouse if necessary.
Sophisticated and Rational Application of the Law The Joseon Dynasty published a uniform code by applying mutatis mutandis the exemplary code of ≪Daemyeongryul≫, and selectively compiling the more permanent provisions of Sugyos (受敎), king’s decrees on domestic matters. This uni- Haechi Rank Badge on the Official Uniform of form code was scrupulously applied to individual cases. This Daesaheon (Attorney General) application process is trial, the details of which can be culled Haechi is an imaginary animal capable of judging what is right and wrong. It was believed to be a righteous from written judgments. presence aiding the king. A Haechi design was used on a rank badge on the official uniform of Daesaheon (Attorney General) in Joseon. Haechi sculptures were also found in front of palace gates to avoid fire or disaster. Housed in the Korea University Museum.
10 11 Chapter 1 Joseon: Aspirations for the Rule of Law Take Root
Joseon’s Judicial Materials and Major Places of Custody
Legislative Literature and Written Judgments as Joseon’s Representative Judicial Materials Judicial materials of Joseon can be found in legislative literature and written judgments. Legislative literature in- cludes government-published documents, such as ≪Sugyo- National Library of Korea jip (受敎集)≫, ≪Rok (錄)≫, and ≪Jeon (典)≫, and law practice A library where domestic and in- handbooks published by local governors by compiling ex- ternational books and valuable cerpted provisions of the laws and regulations as needed. cultural assets of Korea are col- lected, preserved, and open to More on litigations in Joseon can be found out by looking the public, the National Library at court reports, personal anthologies, journal entries, and of Korea has in its custody a total written judgments. In particular, written judgments are of 8.9 million books, as well as re- taining state-designated cultural representative materials that show specific procedure and assets, such as national treas- the application of the law. ures and other treasures published before the 17th century, and 12 cultural asset-level ancient books Major Places of Custody designated as tangible cultural Housing Joseon’s Judicial Materials assets of the Seoul Metropolitan Old Kyujanggak City. The legislative literature officially published by the govern- Established in 1776 (1st year of King Jeongjo’s reign), Kyujanggak was a library storing and managing the ment, as well as the records from the central government writings calligraphies and bogams precious books of the former kings Currently the Seoul National , , ( ) . , agencies, such as Hanseongbu, Jangyewon, and Hyeongjo, University Kyujanggak Institute for Korean Studies preserves and manages the materials provides them to the , can be found at the Seoul National University Kyujanggak academia, and supports a variety of research and scholarly activities on Korean studies. Institute for Korean Studies. Written petitions of the head Jangseogak Archives at the Academy of Korean house and written judgments are located at the Academy of Studies Korean Studies. Besides Kyujanggak, Jangseogak Some national institutions, such as the National Institute was another stack room for royal materials of the Joseon Dynasty. of Korean History and the National Library of Korea as well , In 1981, it became affiliated with as universities, including Korea University and Chonbuk Na- the Academy of Korean Studies, tional University, are also repositories of ancient literature a research institute specializing in Korean studies. It holds ap- and documents. proximately 500,000 materials, These judicial materials were published at various times consisting of roughly 150,000 ancient books and documents by the Japanese Governor General of Korea, the Ministry comprising one national treasure of Government Legislation, and the Korea Legislation Re- and 18 other treasures, includ- search Institute by undergoing the process of photo-typog- ing Uigwe (royal protocols) of the Joseon Dynasty, inscribed on the raphy and translation into Korean They can be viewed at . UNESCO World Heritage List, and the Supreme Court Library. ≪Donguibogam≫(exemplars of Korean medicine); and roughly 330,000 general books on Korean studies.
Left: Unjanggak
The head house of the family of Kim Seong-il (pen name: Hakbong) holds ancient literature and documents. These include the
12 13 Chapter 1 Joseon: Aspirations for the Rule of Law Take Root
Joseon’s Judicial Materials and Major Places of Custody
Legislative Literature and Written Judgments as Joseon’s Representative Judicial Materials Judicial materials of Joseon can be found in legislative literature and written judgments. Legislative literature in- cludes government-published documents, such as ≪Sugyo- National Library of Korea jip (受敎集)≫, ≪Rok (錄)≫, and ≪Jeon (典)≫, and law practice A library where domestic and in- handbooks published by local governors by compiling ex- ternational books and valuable cerpted provisions of the laws and regulations as needed. cultural assets of Korea are col- lected, preserved, and open to More on litigations in Joseon can be found out by looking the public, the National Library at court reports, personal anthologies, journal entries, and of Korea has in its custody a total written judgments. In particular, written judgments are of 8.9 million books, as well as re- taining state-designated cultural representative materials that show specific procedure and assets, such as national treas- the application of the law. ures and other treasures published before the 17th century, and 12 cultural asset-level ancient books Major Places of Custody designated as tangible cultural Housing Joseon’s Judicial Materials assets of the Seoul Metropolitan Old Kyujanggak City. The legislative literature officially published by the govern- Established in 1776 (1st year of King Jeongjo’s reign), Kyujanggak was a library storing and managing the ment, as well as the records from the central government writings calligraphies and bogams precious books of the former kings Currently the Seoul National , , ( ) . , agencies, such as Hanseongbu, Jangyewon, and Hyeongjo, University Kyujanggak Institute for Korean Studies preserves and manages the materials provides them to the , can be found at the Seoul National University Kyujanggak academia, and supports a variety of research and scholarly activities on Korean studies. Institute for Korean Studies. Written petitions of the head Jangseogak Archives at the Academy of Korean house and written judgments are located at the Academy of Studies Korean Studies. Besides Kyujanggak, Jangseogak Some national institutions, such as the National Institute was another stack room for royal materials of the Joseon Dynasty. of Korean History and the National Library of Korea as well , In 1981, it became affiliated with as universities, including Korea University and Chonbuk Na- the Academy of Korean Studies, tional University, are also repositories of ancient literature a research institute specializing in Korean studies. It holds ap- and documents. proximately 500,000 materials, These judicial materials were published at various times consisting of roughly 150,000 ancient books and documents by the Japanese Governor General of Korea, the Ministry comprising one national treasure of Government Legislation, and the Korea Legislation Re- and 18 other treasures, includ- search Institute by undergoing the process of photo-typog- ing Uigwe (royal protocols) of the Joseon Dynasty, inscribed on the raphy and translation into Korean They can be viewed at . UNESCO World Heritage List, and the Supreme Court Library. ≪Donguibogam≫(exemplars of Korean medicine); and roughly 330,000 general books on Korean studies.
Left: Unjanggak
The head house of the family of Kim Seong-il (pen name: Hakbong) holds ancient literature and documents. These include the
12 13 Chapter 1 Joseon: Aspirations for the Rule of Law Take Root
Joseon, Age of Uniform Code
Goryeo Gongsa Samil (高麗公事三日) During the Goryeo Dynasty, laws were enacted on an as- needed basis, or foreign laws were incorporated on an ad hoc basis to apply to specific cases. This may have made possible a reasonable resolution of individual cases, but a predictable law as a behavioral norm was hardly to be expected due to the lack of a uniform code This is how the phrase Goryeo . “ Daemyeongryul-Jikhae Gongsa Samil came into being a satirical phrase meaning ” — (大明律直解) that the unprincipled, capricious government decree of the ≪Daemyeongryul ( 大明 律)≫, the Goryeo Dynasty would not last even three days. most exemplary law book in early Joseon, was difficult to un- Joseon Sets the Bar for the Rule of Law derstand since it was written in Chinese. After a thorough trans- By contrast, Joseon demanded a uniform law and code that lation into Korean and editing process, approximately 100 cop- would be binding on everyone, including the ruler himself/ ies were printed and distributed, herself. Thus, legal codes and law books were consistently thereby laying the groundwork published and distributed, beginning from the publication of for drafting a uniform code of Joseon. Housed in the Seoul Na- ≪Daemyeongryul-Jikhae (大明律直解)≫ in 1395 (4th year of King tional University Kyujanggak In- Taejo’s reign) all the way to the distribution of ≪Hyeong- stitute for Korean Studies. beop Daejeon≫ in 1905 (9th year Gwangmu).
Goryeosa Hyeongbeopji Gyeongguk Daejeon (經國大典) (高麗史 刑法志) During the early period of the Joseon Dynasty, it was imperative to organize civil and criminal laws and This is a history book on the regulations in a timely fashion. It was not uncommon for newly legislated laws and regulations to contradict or Goryeo Dynasty published by Kim Jong-seo, Jeong In-ji, etc., conflict with each other. ≪Gyeongguk Daejeon≫ is a comprehensive synthesis of different laws to address such at King Sejong’s orders. It com- problem. Only the final edition, ≪Ulsadaejeon (乙巳大典)≫, remains today. This is because all previous editions, prises Sega, Ji, Pyo, Yeoljeon, and even woodblocks, were collected and incinerated to ensure legal stability. Housed in the Supreme Court Library Nonchan sections. Housed in the Supreme Court Library of Korea of Korea (duplicate). (duplicate).
Gyeongbokgung Geunjeongjeon
14 15 Chapter 1 Joseon: Aspirations for the Rule of Law Take Root
Joseon, Age of Uniform Code
Goryeo Gongsa Samil (高麗公事三日) During the Goryeo Dynasty, laws were enacted on an as- needed basis, or foreign laws were incorporated on an ad hoc basis to apply to specific cases. This may have made possible a reasonable resolution of individual cases, but a predictable law as a behavioral norm was hardly to be expected due to the lack of a uniform code This is how the phrase Goryeo . “ Daemyeongryul-Jikhae Gongsa Samil came into being a satirical phrase meaning ” — (大明律直解) that the unprincipled, capricious government decree of the ≪Daemyeongryul ( 大明 律)≫, the Goryeo Dynasty would not last even three days. most exemplary law book in early Joseon, was difficult to un- Joseon Sets the Bar for the Rule of Law derstand since it was written in Chinese. After a thorough trans- By contrast, Joseon demanded a uniform law and code that lation into Korean and editing process, approximately 100 cop- would be binding on everyone, including the ruler himself/ ies were printed and distributed, herself. Thus, legal codes and law books were consistently thereby laying the groundwork published and distributed, beginning from the publication of for drafting a uniform code of Joseon. Housed in the Seoul Na- ≪Daemyeongryul-Jikhae (大明律直解)≫ in 1395 (4th year of King tional University Kyujanggak In- Taejo’s reign) all the way to the distribution of ≪Hyeong- stitute for Korean Studies. beop Daejeon≫ in 1905 (9th year Gwangmu).
Goryeosa Hyeongbeopji Gyeongguk Daejeon (經國大典) (高麗史 刑法志) During the early period of the Joseon Dynasty, it was imperative to organize civil and criminal laws and This is a history book on the regulations in a timely fashion. It was not uncommon for newly legislated laws and regulations to contradict or Goryeo Dynasty published by Kim Jong-seo, Jeong In-ji, etc., conflict with each other. ≪Gyeongguk Daejeon≫ is a comprehensive synthesis of different laws to address such at King Sejong’s orders. It com- problem. Only the final edition, ≪Ulsadaejeon (乙巳大典)≫, remains today. This is because all previous editions, prises Sega, Ji, Pyo, Yeoljeon, and even woodblocks, were collected and incinerated to ensure legal stability. Housed in the Supreme Court Library Nonchan sections. Housed in the Supreme Court Library of Korea of Korea (duplicate). (duplicate).
Gyeongbokgung Geunjeongjeon
14 15 Chapter 1 Joseon: Aspirations for the Rule of Law Take Root
Joseon’s Codification
Ground Rules of Codification: tion through 1484 (15th year of King Seongjong’s reign). Its “Jojong Seongheon” drafting was initiated by Choi Hang, Rho Sa-sin, Kang Hee- In 1394 (3rd year of King Taejo’s reign), Jeong Do-jeon dedi- maeng, etc., during King Sejo’s reign, and its publication was cated ≪Joseon Gyeonggukjeon≫, a book of practical govern- in 1485 (16th year of King Seongjong’s reign). Although it ing tenets, to King Taejo. In 1397 (6th year of King Taejo’s was supplemented on several occasions thereafter, its basic reign), ≪Gyeongjeyukjeon≫, Joseon’s first written code of framework was preserved through the end of the Joseon Dyn- Sokdaejeon (續大典) law, was published. asty. ≪Gyeongguk Daejeon≫ is a printed book consisting ≪Sokdaejeon≫ was a code book In 1415 (15th year of King Taejong’s reign), in response to of three volumes and six numbers. Housed in the Supreme published in 1746 (22nd year of King Yeongjo’s reign), selectively the increasing instances of conflict between the provisions Court Library of Korea (duplicate). compiling those enforceable laws of ≪Gyeongjeyukjeon≫ and subsequent laws and regula- and regulations promulgated af- tions, the ground rules of codification was established–i.e., Four Major Codes of Joseon ter the publication of ≪Gyeong- guk Daejeon≫. Of the total of 213 since the provisions of Yukjeon were decreed by the king, The completion of ≪Gyeongguk Daejeon≫ in 1485 (16th items in ≪Gyeongguk Daejeon≫, out of deference any revisions were to be indicated in the year of King Seongjong’s reign) was followed by the succes- 137 items were revised and sup- Joseon Gyeonggukjeon plemented and 18 new items in- footnote, instead of making direct amendment to the law. sive publication of such code books as ≪Sokdaejeon≫, ≪Dae- , , (朝鮮經國典) cluding Hojeon and Hyeongjeon, In 1426 (8th year of King Sejong’s reign), those laws man- jeontongpyeon≫, and ≪Daejeonhoetong≫. The framework of were added. Housed in the Na- ≪Joseon Gyeonggukjeon≫ became tional Library of Korea. widely known by being included in dating permanent compliance were included in Jeon (典), ≪Gyeongguk Daejeon≫ was maintained all the way to ≪Dae- ≪Sambongjip≫, a collection of the while those laws enforced on a temporary, ad hoc basis were jeonhoetong≫. Original provisions included in ≪Gyeong- literary works of Jeong Do-jeon (pen included in Rok (錄). King’s decrees, Sugyos (受敎) of govern- guk Daejeon≫ were categorized as Won (原), while those name: Sambong) published in 1465 (11th year of King Sejo’s reign) and ment offices, became more concise and abstract through provisions newly added to ≪Sokdaejeon≫, ≪Daejeontong- in 1791 (15th year of King Jeongjo’s their collection and selection processes. pyeon≫, and ≪Daejeonhoetong≫ were categorized as Sok reign In Joseon Gyeonggukjeon ). ≪ ≫, (續) Jeung (增) and Bo (補) respectively Jeong Do-jeon lays out the founding , , , . tenets of Joseon and the standards of state governance in accordance with the Yukjeon ( 六典) system. He posits the principle of criminal punishment in Daejeonhoetong (大典會通) the Heonjeon ) section of Yukjeon (憲典 , In 1865 (2nd year of King Gojong’s emphasizing the use of criminal pun- reign), Cho Doo-soon, Kim Byeong- ishment and the law as preventive hak, etc., added to ≪Daejeontong- measures to realize an ethical govern- pyeon≫ those king’s commands, ance Housed in the National Library of . rules, and formality that had been Korea. promulgated and implemented over the 80 years since its pub- lication, which they published as ≪Daejeonhoetong≫. Its pub- lication was geared toward the Gyeongguk Daejeon reform of Samjeong (三政), the (經國大典) Daejeontongpyeon (大典通編) three elements of national finan- ≪Gyeongguk Daejeon≫ was the basic code, which laid the ≪Daejeontongpyeon≫ was a code book consisting of five volumes and six ce, as a part of an effort to ad- numbers published in 1785 9th year of King Jeongjo s reign and enforced foundation for governance for the Joseon Dynasty. It selec- , ( ’ ), dress the deepening crisis of from January 1786. As a part of an effort to reorganize the state system the feudal system in the 19th tively compiled those king’s orders, royal edicts, and ordin- from the reign of King Yeongjo to that of King Jeongjo, a new codification century. Housed in the National ances to be permanently complied with, spanning about project came underway as a groundwork, by incorporating all the changes Library of Korea. over the previous period. Such effort’s first outcome was ≪Sokdaejeon≫, to the first 100 years of the Joseon Dynasty from its founda- be later supplemented by ≪Daejeontongpyeon≫. Housed in the Academy of Korean Studies.
16 17 Chapter 1 Joseon: Aspirations for the Rule of Law Take Root
Joseon’s Codification
Ground Rules of Codification: tion through 1484 (15th year of King Seongjong’s reign). Its “Jojong Seongheon” drafting was initiated by Choi Hang, Rho Sa-sin, Kang Hee- In 1394 (3rd year of King Taejo’s reign), Jeong Do-jeon dedi- maeng, etc., during King Sejo’s reign, and its publication was cated ≪Joseon Gyeonggukjeon≫, a book of practical govern- in 1485 (16th year of King Seongjong’s reign). Although it ing tenets, to King Taejo. In 1397 (6th year of King Taejo’s was supplemented on several occasions thereafter, its basic reign), ≪Gyeongjeyukjeon≫, Joseon’s first written code of framework was preserved through the end of the Joseon Dyn- Sokdaejeon (續大典) law, was published. asty. ≪Gyeongguk Daejeon≫ is a printed book consisting ≪Sokdaejeon≫ was a code book In 1415 (15th year of King Taejong’s reign), in response to of three volumes and six numbers. Housed in the Supreme published in 1746 (22nd year of King Yeongjo’s reign), selectively the increasing instances of conflict between the provisions Court Library of Korea (duplicate). compiling those enforceable laws of ≪Gyeongjeyukjeon≫ and subsequent laws and regula- and regulations promulgated af- tions, the ground rules of codification was established–i.e., Four Major Codes of Joseon ter the publication of ≪Gyeong- guk Daejeon≫. Of the total of 213 since the provisions of Yukjeon were decreed by the king, The completion of ≪Gyeongguk Daejeon≫ in 1485 (16th items in ≪Gyeongguk Daejeon≫, out of deference any revisions were to be indicated in the year of King Seongjong’s reign) was followed by the succes- 137 items were revised and sup- Joseon Gyeonggukjeon plemented and 18 new items in- footnote, instead of making direct amendment to the law. sive publication of such code books as ≪Sokdaejeon≫, ≪Dae- , , (朝鮮經國典) cluding Hojeon and Hyeongjeon, In 1426 (8th year of King Sejong’s reign), those laws man- jeontongpyeon≫, and ≪Daejeonhoetong≫. The framework of were added. Housed in the Na- ≪Joseon Gyeonggukjeon≫ became tional Library of Korea. widely known by being included in dating permanent compliance were included in Jeon (典), ≪Gyeongguk Daejeon≫ was maintained all the way to ≪Dae- ≪Sambongjip≫, a collection of the while those laws enforced on a temporary, ad hoc basis were jeonhoetong≫. Original provisions included in ≪Gyeong- literary works of Jeong Do-jeon (pen included in Rok (錄). King’s decrees, Sugyos (受敎) of govern- guk Daejeon≫ were categorized as Won (原), while those name: Sambong) published in 1465 (11th year of King Sejo’s reign) and ment offices, became more concise and abstract through provisions newly added to ≪Sokdaejeon≫, ≪Daejeontong- in 1791 (15th year of King Jeongjo’s their collection and selection processes. pyeon≫, and ≪Daejeonhoetong≫ were categorized as Sok reign In Joseon Gyeonggukjeon ). ≪ ≫, (續) Jeung (增) and Bo (補) respectively Jeong Do-jeon lays out the founding , , , . tenets of Joseon and the standards of state governance in accordance with the Yukjeon ( 六典) system. He posits the principle of criminal punishment in Daejeonhoetong (大典會通) the Heonjeon ) section of Yukjeon (憲典 , In 1865 (2nd year of King Gojong’s emphasizing the use of criminal pun- reign), Cho Doo-soon, Kim Byeong- ishment and the law as preventive hak, etc., added to ≪Daejeontong- measures to realize an ethical govern- pyeon≫ those king’s commands, ance Housed in the National Library of . rules, and formality that had been Korea. promulgated and implemented over the 80 years since its pub- lication, which they published as ≪Daejeonhoetong≫. Its pub- lication was geared toward the Gyeongguk Daejeon reform of Samjeong (三政), the (經國大典) Daejeontongpyeon (大典通編) three elements of national finan- ≪Gyeongguk Daejeon≫ was the basic code, which laid the ≪Daejeontongpyeon≫ was a code book consisting of five volumes and six ce, as a part of an effort to ad- numbers published in 1785 9th year of King Jeongjo s reign and enforced foundation for governance for the Joseon Dynasty. It selec- , ( ’ ), dress the deepening crisis of from January 1786. As a part of an effort to reorganize the state system the feudal system in the 19th tively compiled those king’s orders, royal edicts, and ordin- from the reign of King Yeongjo to that of King Jeongjo, a new codification century. Housed in the National ances to be permanently complied with, spanning about project came underway as a groundwork, by incorporating all the changes Library of Korea. over the previous period. Such effort’s first outcome was ≪Sokdaejeon≫, to the first 100 years of the Joseon Dynasty from its founda- be later supplemented by ≪Daejeontongpyeon≫. Housed in the Academy of Korean Studies.
16 17 Chapter 1 Joseon: Aspirations for the Rule of Law Take Root
Daemyeongryul and Joseon’s Hyeongjeon
Command of King Taejo More specifically, 392 (39.8%) of 986 provisions in ≪Sugyo- “Apply Daemyeongryul” jiprok≫ (published in 1698) and 612 (43.1%) of 1,419 provi- In July 1392 (the first year of King Taejo’s reign) in his inaug- sions in ≪Shinbo-sugyojiprok≫ (published in 1743) belonged uration message, King Taejo declared that, going forward, to Hyeongjeon. all offenses committed by civil and military officers shall be ≪Jeonyultongbo≫ (published in 1787) was a bound com- governed by ≪Daemyeongryul≫ (自今 京外刑決官 凡公私犯罪 必 pilation of only those legal provisions of ≪Gyeongguk 該大明律). While there is reason to construe this to mean that Daejeon≫ and ≪Daemyeongryul-Jikhae≫ that were actu- ≪Daemyeongryul≫ was applicable only to civil and military ally enforced. The number of provisions of Hyeongjeon Sugyojiprok (受敎輯錄) officers, the declaration ought rather to be viewed as an oc- was 586, while that of Hyeongryul was 127. ≪Sugyojiprok≫ was a collection casion on which ≪Daemyeongryul≫ took on the status of a and classification of Sugyos is- sued over the 150 years from general criminal law in Joseon. “An Unclear Criminal Law Deprives mid-16th to late 17th century. The the People of a Code of Conduct.” late 17th century saw diversifying interests and intensified conflicts “用大明律” ≪Yeongjosilrok (Annals of King Youngjo)≫ Vol. 42, pulished in December Daemyeongryul (大明律) between individuals against the “Apply ≪Daemyeongryul≫.” of the 12th year of King Yeongjo’s reign (year Byeongin). background of socioeconomic elab- ≪Daemyeongryul≫ was the code of oration, and hence, a sharp rise the Ming Dynasty of China, which in- in the number of new provisions corporates revisions and adjustments “ 依 原 典 aimed at resolving disputes. Hou- to ≪Dangryul (Tang Code)≫, the old- 用大明律 而大典 續典 有當律者 從二典” sed in the National Library of Ko- est existing code from the Tang Dyn- rea. asty of China, the legislative basis of “≪Daemyeongryul≫ shall be applied in accordance with ≪Gyeongguk Dae- which was the ethics of the Imperial jeon≫, but ≪Gyeongguk Daejeon≫ and ≪Sokdaejeon≫ shall be applied family, patriarchy, predominance of when they have applicable provisions on point.” man over woman, and Confucianism, and the contents of which were geared toward maintaining social order cen- Hyeongjeon Provisions Increased; tered on the extended family. Housed Clout of ≪Daemyeongryul≫ Diminished in the Korea University Libray. ≪Daemyeongryul≫ was the basis of applying criminal punishment. However, all the provisions in Hyeongjeon section of ≪Gyeongguk Daejeon≫ were newly enacted to reflect the realities of Joseon. The late period of the Joseon Dynasty witnessed diversifying crimes in tandem with the Shinbo–Sugyojiprok (新補受敎輯錄) fast-paced social changes, leading to more articulated puni- ≪Sinbo–Sugyojiprok≫ is a sys- tive provisions and a steep rise in the number of provisions temized collection of Sugyos is- in Hyeongjeon. sued over the 50 years since the Jeonyultongbo(典律通補) publication of ≪Sugyojiprok≫. The Edited and published by Ku Yoon-myeong at King Jeongjo’s command in sharp rise in the number of new 1787 (11th year of King Jeongjo’s reign), ≪Jeonyultongbo≫ synthesized statutory provisions in a relatively ≪Gyeongguk Daejeon≫, ≪Sokdaejeon≫, ≪Daejeontongpyeon≫, and ≪Dae- short span of time reflects the ac- myeongryul≫ for easy reference, into four volumes and six numbers. celerating social evolution in the Housed in the National Library of Korea. 18th century. Housed in the Seoul National University Kyujanggak Institute for Korean Studies.
18 19 Chapter 1 Joseon: Aspirations for the Rule of Law Take Root
Daemyeongryul and Joseon’s Hyeongjeon
Command of King Taejo More specifically, 392 (39.8%) of 986 provisions in ≪Sugyo- “Apply Daemyeongryul” jiprok≫ (published in 1698) and 612 (43.1%) of 1,419 provi- In July 1392 (the first year of King Taejo’s reign) in his inaug- sions in ≪Shinbo-sugyojiprok≫ (published in 1743) belonged uration message, King Taejo declared that, going forward, to Hyeongjeon. all offenses committed by civil and military officers shall be ≪Jeonyultongbo≫ (published in 1787) was a bound com- governed by ≪Daemyeongryul≫ (自今 京外刑決官 凡公私犯罪 必 pilation of only those legal provisions of ≪Gyeongguk 該大明律). While there is reason to construe this to mean that Daejeon≫ and ≪Daemyeongryul-Jikhae≫ that were actu- ≪Daemyeongryul≫ was applicable only to civil and military ally enforced. The number of provisions of Hyeongjeon Sugyojiprok (受敎輯錄) officers, the declaration ought rather to be viewed as an oc- was 586, while that of Hyeongryul was 127. ≪Sugyojiprok≫ was a collection casion on which ≪Daemyeongryul≫ took on the status of a and classification of Sugyos is- sued over the 150 years from general criminal law in Joseon. “An Unclear Criminal Law Deprives mid-16th to late 17th century. The the People of a Code of Conduct.” late 17th century saw diversifying interests and intensified conflicts “用大明律” ≪Yeongjosilrok (Annals of King Youngjo)≫ Vol. 42, pulished in December Daemyeongryul (大明律) between individuals against the “Apply ≪Daemyeongryul≫.” of the 12th year of King Yeongjo’s reign (year Byeongin). background of socioeconomic elab- ≪Daemyeongryul≫ was the code of oration, and hence, a sharp rise the Ming Dynasty of China, which in- in the number of new provisions corporates revisions and adjustments “ 依 原 典 aimed at resolving disputes. Hou- to ≪Dangryul (Tang Code)≫, the old- 用大明律 而大典 續典 有當律者 從二典” sed in the National Library of Ko- est existing code from the Tang Dyn- rea. asty of China, the legislative basis of “≪Daemyeongryul≫ shall be applied in accordance with ≪Gyeongguk Dae- which was the ethics of the Imperial jeon≫, but ≪Gyeongguk Daejeon≫ and ≪Sokdaejeon≫ shall be applied family, patriarchy, predominance of when they have applicable provisions on point.” man over woman, and Confucianism, and the contents of which were geared toward maintaining social order cen- Hyeongjeon Provisions Increased; tered on the extended family. Housed Clout of ≪Daemyeongryul≫ Diminished in the Korea University Libray. ≪Daemyeongryul≫ was the basis of applying criminal punishment. However, all the provisions in Hyeongjeon section of ≪Gyeongguk Daejeon≫ were newly enacted to reflect the realities of Joseon. The late period of the Joseon Dynasty witnessed diversifying crimes in tandem with the Shinbo–Sugyojiprok (新補受敎輯錄) fast-paced social changes, leading to more articulated puni- ≪Sinbo–Sugyojiprok≫ is a sys- tive provisions and a steep rise in the number of provisions temized collection of Sugyos is- in Hyeongjeon. sued over the 50 years since the Jeonyultongbo(典律通補) publication of ≪Sugyojiprok≫. The Edited and published by Ku Yoon-myeong at King Jeongjo’s command in sharp rise in the number of new 1787 (11th year of King Jeongjo’s reign), ≪Jeonyultongbo≫ synthesized statutory provisions in a relatively ≪Gyeongguk Daejeon≫, ≪Sokdaejeon≫, ≪Daejeontongpyeon≫, and ≪Dae- short span of time reflects the ac- myeongryul≫ for easy reference, into four volumes and six numbers. celerating social evolution in the Housed in the National Library of Korea. 18th century. Housed in the Seoul National University Kyujanggak Institute for Korean Studies.
18 19 Chapter 1 Joseon: Aspirations for the Rule of Law Take Root
Types of Trials and Judicial System of Joseon
Sasong (詞訟) for Civil Action and Hyeongjo of Joseon A complete map showing the ar- Oksong (獄訟) for Criminal Action rangement of the government of- In Joseon, civil action was called Sasong, and criminal fice of Hyeongjo (刑曹: Ministry of Justice) located in the palace, action was called Oksong. Sometimes punishment was im- which appeared in ≪Chukwanji posed also in Sasong cases, when local governors exercised (秋 官志)≫, a compilation by Park Il- their right to hold trial and to administer punishment as a won (official Title: Nangcheong) of cases under the jurisdiction part of their governing authority . of Hyeongjo, published in 1781 (5th year of King Jeongjo’s reign). Chukwan refers to Hyeongjo, a Hyeongjeongdocheop: Suryeong (local governor) had the right to impose punishment of up to 50 government office responsible Filing of a Petition lashes of whipping, and Gwanchalsa (senior local governor), up to banish- for judicial, criminal, and puni- ment This means that the plaintiff was able to petition for both redress A picture of people filing petitions . tive affairs of Joseon. In addition of rights and criminal punishment simultaneously in a single lawsuit. with a government office. In the Jo- to Hyeongjo, such other govern- seon era, in addition to filing the ment agencies as Hanseongbu, petition, the plaintiff had to take the Uigeumbu, and Jangyewon also defendant to court for a trial to begin. Legal Proceedings and the Sangpi (相避) System carried out certain judicial re- sponsibilities. In general, the plaintiff filed a lawsuit with the local au- thority having jurisdiction over the defendant. The appeal process went through Gwanchalsa and then to the central government. Different departments of the central government had ju- risdiction over different cases. Jangyewon (掌隷院) had ju- risdiction over slave cases; Hanseongbu (漢城府) over house and real property cases; Hyeongjo over criminal cases and Realizing Justice on the Ground cases to which Sangpi system was applicable; and Jongbusi by Breaking Down Formalities (宗簿寺) over cases regarding the royal family. The rule of Samdodeuksin (三度得伸) in Sacheonjo of Hyeong- jeon in ≪Gyeongguk Daejeon≫ provides, “A case in which a
Sangpi (相避: corresponding to “Jecheok”) party prevailed through three instances of trial is not to be Judges related to the parties are excluded as a matter of course. taken up again.” Samdodeuksin (三度得伸) Guigu (歸咎: corresponding to “Gipi”) However, this provision was criticized for the possibility The rule of Samdodeuksin ap- Judges are excluded upon request. that an unfair judgment may become final and conclusive, pears in Sacheonjo of Hyeongjeon Pihyeom (避嫌: corresponding to “Hoepi”) and thus, could not be absolutely enforced in light of the in ≪Gyeongguk Daejeon≫. This Judges recuse themselves from a possible conflict of interest situation to scholars’ political ideals of refusing to tolerate formally meant that Joseon’s trials were Hyeongjeongdocheop avoid any doubts about impartiality. conducted on a three-instance (album of paintings on binding force (formelle Rechtskraft) at the expense of sub- basis. A judgment would become criminal justice): stantive justice. Therefore, the grounds for retrial were final and conclusive upon two Criminal Arrest victories out of three trials. broadly and flexibly recognized in Joseon. A picture of a man being arrested for assault and battery of an elderly man. “ How can I be bound by the three-instance rule This picture depicts a man who as- saulted a senior citizen being tied up when the judgment is unfair?” in a rope and taken into custody by Kim Sang-muk, Andongbusa (deputy local governor of Andong-bu), in 1776. police officers.
20 21 Chapter 1 Joseon: Aspirations for the Rule of Law Take Root
Types of Trials and Judicial System of Joseon
Sasong (詞訟) for Civil Action and Hyeongjo of Joseon A complete map showing the ar- Oksong (獄訟) for Criminal Action rangement of the government of- In Joseon, civil action was called Sasong, and criminal fice of Hyeongjo (刑曹: Ministry of Justice) located in the palace, action was called Oksong. Sometimes punishment was im- which appeared in ≪Chukwanji posed also in Sasong cases, when local governors exercised (秋 官志)≫, a compilation by Park Il- their right to hold trial and to administer punishment as a won (official Title: Nangcheong) of cases under the jurisdiction part of their governing authority . of Hyeongjo, published in 1781 (5th year of King Jeongjo’s reign). Chukwan refers to Hyeongjo, a Hyeongjeongdocheop: Suryeong (local governor) had the right to impose punishment of up to 50 government office responsible Filing of a Petition lashes of whipping, and Gwanchalsa (senior local governor), up to banish- for judicial, criminal, and puni- ment This means that the plaintiff was able to petition for both redress A picture of people filing petitions . tive affairs of Joseon. In addition of rights and criminal punishment simultaneously in a single lawsuit. with a government office. In the Jo- to Hyeongjo, such other govern- seon era, in addition to filing the ment agencies as Hanseongbu, petition, the plaintiff had to take the Uigeumbu, and Jangyewon also defendant to court for a trial to begin. Legal Proceedings and the Sangpi (相避) System carried out certain judicial re- sponsibilities. In general, the plaintiff filed a lawsuit with the local au- thority having jurisdiction over the defendant. The appeal process went through Gwanchalsa and then to the central government. Different departments of the central government had ju- risdiction over different cases. Jangyewon (掌隷院) had ju- risdiction over slave cases; Hanseongbu (漢城府) over house and real property cases; Hyeongjo over criminal cases and Realizing Justice on the Ground cases to which Sangpi system was applicable; and Jongbusi by Breaking Down Formalities (宗簿寺) over cases regarding the royal family. The rule of Samdodeuksin (三度得伸) in Sacheonjo of Hyeong- jeon in ≪Gyeongguk Daejeon≫ provides, “A case in which a
Sangpi (相避: corresponding to “Jecheok”) party prevailed through three instances of trial is not to be Judges related to the parties are excluded as a matter of course. taken up again.” Samdodeuksin (三度得伸) Guigu (歸咎: corresponding to “Gipi”) However, this provision was criticized for the possibility The rule of Samdodeuksin ap- Judges are excluded upon request. that an unfair judgment may become final and conclusive, pears in Sacheonjo of Hyeongjeon Pihyeom (避嫌: corresponding to “Hoepi”) and thus, could not be absolutely enforced in light of the in ≪Gyeongguk Daejeon≫. This Judges recuse themselves from a possible conflict of interest situation to scholars’ political ideals of refusing to tolerate formally meant that Joseon’s trials were Hyeongjeongdocheop avoid any doubts about impartiality. conducted on a three-instance (album of paintings on binding force (formelle Rechtskraft) at the expense of sub- basis. A judgment would become criminal justice): stantive justice. Therefore, the grounds for retrial were final and conclusive upon two Criminal Arrest victories out of three trials. broadly and flexibly recognized in Joseon. A picture of a man being arrested for assault and battery of an elderly man. “ How can I be bound by the three-instance rule This picture depicts a man who as- saulted a senior citizen being tied up when the judgment is unfair?” in a rope and taken into custody by Kim Sang-muk, Andongbusa (deputy local governor of Andong-bu), in 1776. police officers.
20 21 Chapter 2
Litigations in Joseon: People’s Voice is Heard, Justice Blossoms
Law Practice Handbook 24 Criminal Procedure Handbook and Case Records 26 Joseon’s Court Reports 28 Joseon’s Court Procedure 29 Certified Judgments 30 Certified Judgment on Slave Lawsuit 32 Certified Judgment on Housing and Land Lawsuit 34 Certified Judgment on Burial Ground Lawsuit 36 Certified Judgment on Criminal Proceeding 38
Hyeongjeongdocheop: Penalty of whipping
A picture depicting criminal justice in the late period of Joseon, drawn by Kim Yun-bo (pen name: Iljae), who frequented the Pyeongyang supreme government office (excerpted from 39 Art Quarterly (Autumn 1986)). Chapter 2
Litigations in Joseon: People’s Voice is Heard, Justice Blossoms
Law Practice Handbook 24 Criminal Procedure Handbook and Case Records 26 Joseon’s Court Reports 28 Joseon’s Court Procedure 29 Certified Judgments 30 Certified Judgment on Slave Lawsuit 32 Certified Judgment on Housing and Land Lawsuit 34 Certified Judgment on Burial Ground Lawsuit 36 Certified Judgment on Criminal Proceeding 38
Hyeongjeongdocheop: Penalty of whipping
A picture depicting criminal justice in the late period of Joseon, drawn by Kim Yun-bo (pen name: Iljae), who frequented the Pyeongyang supreme government office (excerpted from 39 Art Quarterly (Autumn 1986)). Chapter 2 Litigations in Joseon: People’s Voice is Heard, Justice Blossoms
Law Practice Handbook
Compilation of Law Practice Handbook Law Practice Handbooks in Response to Reflecting Local Circumstances Increasing Litigations During the Joseon Dynasty, Sugyos were collected but In the late Joseon Dynasty, the number of lawsuits contin- not published or distributed. Promulgated codes were pub- ued to increase with the evolving social complexity. Proced- lished according to the respective portfolios of the six cen- ural handbooks were published and utilized in response to tral government offices. This made it difficult to apply the such circumstance. They were law practice handbooks com- law to individual cases. As such, local governors compiled piling only those legal provisions necessary for litigation, as select statutory provisions by issue so as to make their ap- excerpted from various code books, including ≪Gyeongguk plication to facts easier. Daejeon≫.
Sasongyuchwi (詞訟類聚) Sasongyuchwi (詞訟類聚): “李相國梧里戒其甥李德沂書” Under the sub-heading Cheongsongsik(聽訟式), Civil procedure handbook for Prime Minister Lee Oh-ri’s letter of advice steps of civil procedure were described local governors in the 16th century to his nephew Lee Deok-gi Cheongsongjinam in chronological order, from bringing of Former Ansan-gun governor Kim Baek-gan (1516~1582) excerpted In 1604 (37th year of King Seonjo’s reign), Lee Won-ik (pen name: (聽訟指南) a lawsuit, to hearing, and to rendering of a judgment. Indispensible elements of a and organized provisions from codes and Sugyos as necessary for Ori) sent a letter of advice to his nephew Lee Deok-gi, who was Trial Practice Handbook for court hearing, in particular, ways to ap- court hearings and judgments. His son Kim Tae-jeong compiled and newly appointed as governor of Mokcheon-hyeon, on the attitude Local Governors praise any forged document are described This is a Cheongsong trial prac- , published the book in 1585 (18th year of King Seonjo’s reign) when and skills required of a local governor, settlement of disputes, and in detail. Housed in the National Library of tice handbook compiling statu- Korea. serving as Gwanchalsa (senior local governor) of Jeolla Province. the issuance and fees of
24 25 Chapter 2 Litigations in Joseon: People’s Voice is Heard, Justice Blossoms
Law Practice Handbook
Compilation of Law Practice Handbook Law Practice Handbooks in Response to Reflecting Local Circumstances Increasing Litigations During the Joseon Dynasty, Sugyos were collected but In the late Joseon Dynasty, the number of lawsuits contin- not published or distributed. Promulgated codes were pub- ued to increase with the evolving social complexity. Proced- lished according to the respective portfolios of the six cen- ural handbooks were published and utilized in response to tral government offices. This made it difficult to apply the such circumstance. They were law practice handbooks com- law to individual cases. As such, local governors compiled piling only those legal provisions necessary for litigation, as select statutory provisions by issue so as to make their ap- excerpted from various code books, including ≪Gyeongguk plication to facts easier. Daejeon≫.
Sasongyuchwi (詞訟類聚) Sasongyuchwi (詞訟類聚): “李相國梧里戒其甥李德沂書” Under the sub-heading Cheongsongsik(聽訟式), Civil procedure handbook for Prime Minister Lee Oh-ri’s letter of advice steps of civil procedure were described local governors in the 16th century to his nephew Lee Deok-gi Cheongsongjinam in chronological order, from bringing of Former Ansan-gun governor Kim Baek-gan (1516~1582) excerpted In 1604 (37th year of King Seonjo’s reign), Lee Won-ik (pen name: (聽訟指南) a lawsuit, to hearing, and to rendering of a judgment. Indispensible elements of a and organized provisions from codes and Sugyos as necessary for Ori) sent a letter of advice to his nephew Lee Deok-gi, who was Trial Practice Handbook for court hearing, in particular, ways to ap- court hearings and judgments. His son Kim Tae-jeong compiled and newly appointed as governor of Mokcheon-hyeon, on the attitude Local Governors praise any forged document are described This is a Cheongsong trial prac- , published the book in 1585 (18th year of King Seonjo’s reign) when and skills required of a local governor, settlement of disputes, and in detail. Housed in the National Library of tice handbook compiling statu- Korea. serving as Gwanchalsa (senior local governor) of Jeolla Province. the issuance and fees of
24 25 Chapter 2 Litigations in Joseon: People’s Voice is Heard, Justice Blossoms
Criminal Procedure Handbook and Case Records
Criminal Procedure Handbook for Local Governors in the 18th Century Criminal Records (concerning death in prison and autopsy)
Left: Chujogyeolokrok (秋曹決獄錄) Left: Jeungsumuwonrok-Eonhae (增修無寃錄諺解) Samjeonyucho (三典類抄) These are records of deaths of criminals in prison handled Under the reign of King Jeongjo, Gu Yun-myeong published By classifying different types of crimes provided by Hyeongjo from 1822 to 1893. There were over 118 vol- ≪Jeungsumuwonrok≫, which was a revised edition of ≪Mu- in ≪Daemyeongryul≫, ≪Gyeongguk Daejeon≫, umes, each of which covered a period of one year. Current- wonrok》, a forensic book (autopsy handbook) from the Yuan and ≪Sokdaejeon≫ by the amount of sentence, ly, only 43 volumes remain in Kyujanggak. Housed in the Dynasty of China. Later, ≪Jeungsumuwonrok-Eonhae≫ was ≪Samjeonyucho≫ is designed for an easy refer- Seoul National University Kyujanggak Institute for Korean published by Justice Minister Seo Yu-rin, as a commentary ence of provisions on criminal punishment. Un- Studies. to ≪Jeungsumuwonrok≫, along with its transliteration of like the ground rules applicable to the publica- Chinese into Korean and footnotes. Housed in the Seoul Na- tion of a Daejeon code books, i.e., not to delete Right: Chuangeupgukan (推案及鞫案) tional University Kyujanggak Institute for Korean Studies. any laws decreed by former kings, ≪Samjeonyu- These are records of examination of felons who commit- cho indicated any abolished laws so that refer- ≫ ted serious crimes against the basic order of the state, such Right: Third Autopsy Report on the Body of Im ences may be made in practice Housed in the . as uprising, conspiracy, party strife, and propaganda. On Nong-ok in Muan-hyeon Seoul National University Kyujanggak Institute felony subject to imprisonment, banishment, and capi- This is an autopsy report on the murder of Im Nong-ok, for Korean Studies . tal punishment in Joseon, records were made of not only which occurred in Jukgoji-ri, Ilo-myeon, Muan-hyeon. This the offender, related parties, and relevant witnesses, but is the oldest autopsy report held in Kyujanggak. Housed in also the content of interrogation and its procedure. These the Seoul National University Kyujanggak Institute for Ko- records were edited and preserved as evidence by Uigeum- rean Studies. bu. Housed in the Seoul National University Kyujanggak Institute for Korean Studies.
Document Files including Crime Reports of the Gyeonggi Court ① ③ ② ① These are autopsy reports and written criminal judgments on murder cases sent to Gyeong- ② ③ gi Court by the governor of a county (gun) in Gyeonggi-do between 1904 and 1907. Housed in the Supreme Court Library of Korea Baekheonchongyo (百憲總要) . Upper part of the forehead The entire surface is swollen and the skin color is dark blue This book compiles rules governing the appli- ① . Middle part of the eye Both eyes are open and the color is all yellow cation of those provisions relevant to Yukjo in ② . ③ Flabby skin under the earlobes It is soft to the touch and the entire color is dark blue. a dictionary format. Among the many sections, Hyeongjeon (criminal law) comprises the largest part of this book. Housed in the National Library of Korea. Summary Report of Namhae Hyeonryeong (南海縣令 書目) The following report is a summary criminal report submitted by Namhae Hyeonryeong (local governor in Namhae) to Amhaengeosa (secret royal inspector) at the arrest of a criminal with warrant. Seomok was an arrest warrant issued by Amhaengeosa upon the request of Namhae Hyeonryeong in the late period of Joseon in 1878. Noteworthy is the use of Mapae as a seal. Report Upon your secret order issued last month, Kim Ju-hwan in Namhae-hyeon, Im Nam-eul in Ha-ri, and Kim Song-gi in Deoksin village were all arrested and imprisoned in the pillory. At- tached please find a revised list of criminals. Disposition List of criminals received (seal affixed). Donated by Hong Gwang-shik in 1993, then Busan High Court Judge. Housed in the Supreme Court Library of Korea.
26 27 Chapter 2 Litigations in Joseon: People’s Voice is Heard, Justice Blossoms
Criminal Procedure Handbook and Case Records
Criminal Procedure Handbook for Local Governors in the 18th Century Criminal Records (concerning death in prison and autopsy)
Left: Chujogyeolokrok (秋曹決獄錄) Left: Jeungsumuwonrok-Eonhae (增修無寃錄諺解) Samjeonyucho (三典類抄) These are records of deaths of criminals in prison handled Under the reign of King Jeongjo, Gu Yun-myeong published By classifying different types of crimes provided by Hyeongjo from 1822 to 1893. There were over 118 vol- ≪Jeungsumuwonrok≫, which was a revised edition of ≪Mu- in ≪Daemyeongryul≫, ≪Gyeongguk Daejeon≫, umes, each of which covered a period of one year. Current- wonrok》, a forensic book (autopsy handbook) from the Yuan and ≪Sokdaejeon≫ by the amount of sentence, ly, only 43 volumes remain in Kyujanggak. Housed in the Dynasty of China. Later, ≪Jeungsumuwonrok-Eonhae≫ was ≪Samjeonyucho≫ is designed for an easy refer- Seoul National University Kyujanggak Institute for Korean published by Justice Minister Seo Yu-rin, as a commentary ence of provisions on criminal punishment. Un- Studies. to ≪Jeungsumuwonrok≫, along with its transliteration of like the ground rules applicable to the publica- Chinese into Korean and footnotes. Housed in the Seoul Na- tion of a Daejeon code books, i.e., not to delete Right: Chuangeupgukan (推案及鞫案) tional University Kyujanggak Institute for Korean Studies. any laws decreed by former kings, ≪Samjeonyu- These are records of examination of felons who commit- cho indicated any abolished laws so that refer- ≫ ted serious crimes against the basic order of the state, such Right: Third Autopsy Report on the Body of Im ences may be made in practice Housed in the . as uprising, conspiracy, party strife, and propaganda. On Nong-ok in Muan-hyeon Seoul National University Kyujanggak Institute felony subject to imprisonment, banishment, and capi- This is an autopsy report on the murder of Im Nong-ok, for Korean Studies . tal punishment in Joseon, records were made of not only which occurred in Jukgoji-ri, Ilo-myeon, Muan-hyeon. This the offender, related parties, and relevant witnesses, but is the oldest autopsy report held in Kyujanggak. Housed in also the content of interrogation and its procedure. These the Seoul National University Kyujanggak Institute for Ko- records were edited and preserved as evidence by Uigeum- rean Studies. bu. Housed in the Seoul National University Kyujanggak Institute for Korean Studies.
Document Files including Crime Reports of the Gyeonggi Court ① ③ ② ① These are autopsy reports and written criminal judgments on murder cases sent to Gyeong- ② ③ gi Court by the governor of a county (gun) in Gyeonggi-do between 1904 and 1907. Housed in the Supreme Court Library of Korea Baekheonchongyo (百憲總要) . Upper part of the forehead The entire surface is swollen and the skin color is dark blue This book compiles rules governing the appli- ① . Middle part of the eye Both eyes are open and the color is all yellow cation of those provisions relevant to Yukjo in ② . ③ Flabby skin under the earlobes It is soft to the touch and the entire color is dark blue. a dictionary format. Among the many sections, Hyeongjeon (criminal law) comprises the largest part of this book. Housed in the National Library of Korea. Summary Report of Namhae Hyeonryeong (南海縣令 書目) The following report is a summary criminal report submitted by Namhae Hyeonryeong (local governor in Namhae) to Amhaengeosa (secret royal inspector) at the arrest of a criminal with warrant. Seomok was an arrest warrant issued by Amhaengeosa upon the request of Namhae Hyeonryeong in the late period of Joseon in 1878. Noteworthy is the use of Mapae as a seal. Report Upon your secret order issued last month, Kim Ju-hwan in Namhae-hyeon, Im Nam-eul in Ha-ri, and Kim Song-gi in Deoksin village were all arrested and imprisoned in the pillory. At- tached please find a revised list of criminals. Disposition List of criminals received (seal affixed). Donated by Hong Gwang-shik in 1993, then Busan High Court Judge. Housed in the Supreme Court Library of Korea.
26 27 Chapter 2 Litigations in Joseon: People’s Voice is Heard, Justice Blossoms
Joseon’s Court Reports Joseon’s Court Procedure
1. Filing of a Petition 2. Appearance of the Plaintiff 3. Taking of an Oath of Sisong and the Defendant (at the opening argument) “It is unfair.” Heumheumsinseo (欽欽新書): “Bring the defendant.” “I swear an oath to tell the The plaintiff files a petition Korea’s First Case Law Commentary whole truth in the court.” with the court having juris- Adversarial system In this book, Jeong Yak-yong organized the summaries of criminal pro- diction over the defendant’s Adversarial system was observed in Oath taken before making a ceedings for fair disposition of criminal punishment. Since the editor place of domicile. Joseon’s litigations in which gov- statement added his own opinion and commentary on each case (under the heading As in today s trial trials in Joseon ernment intervention was minimi “in my view,” or “in my opinion”), this is deemed the first earnest attempt ’ , “Oath” as in the oath of Sisong re- also started when the plaintiff filed -zed. It is worth noting that, upon at a case law commentary in Korea. Housed in the National Library of fers to the confirmation that what a petition requesting for a trial filing of the petition, the plaintiff Korea. ( ) the individual is about to state is with the local government office had to take the defendant to the absolutely true, or a pledge to keep having jurisdiction over the defend- court. The entire procedure was one’s promise. The expression “to ant’s place of domicile. driven by the parties. take an oath” in Korean originated in this tradition.
Simrirok (審理錄) 4.Hearing/Examination turned to the offeror after taking testimony, and cross-examina- This is a book describing criminal cases (advocacy/oral proceeding an oath that what the documents tion) for several months on one’s capital offenses tried by King Jeongjo ( ) system; Verhandlungs- say is all true. If one party refuses own discretion; (b) fails to appear in chronological order from 1776 This is . maxime) to sign the document filed, the for 30 days after the second con- a court report compiling precedents for judge decided on its admissibility finement of his her servant or c “I offer this document.” . / ; ( ) future reference in subsequent case man- fails to appear for more than 30 “Did the party fail to appear, agement. Housed in the Korea University Processing Documents Filed days of the first 50 days after the yet again?” Library. start of a trial without cause the According to ≪Sasongyuchwi≫, law , practice handbook of the 16th Chinchakgyeoljeol(親着決折) court would rule in favor of the party present in court. century, documents filed by the In slave lawsuits, in case either plaintiff and the defendant were the plaintiff or the defendant: (a) sealed and signed by the other Chukwanji (秋官志) knowingly fails to appear in court party upon review. They were re- (including for offer of evidence, This is a compilation of cases under the jurisdiction of Hyeongjo, col- lected from the foundation of the Joseon Dynasty. In particular, legal procedures and precedents were well documented Originally edited by . 5. Oath of Gyeolsong 6. Rendering of a Judgment Jilji Park Il-won, the book was revised and supplemented in 1782 at the King’s (at the closing argument) and the Issuance of a Certi- The prices of a unit of small tile- command, and again in 1792. Most cases featured in this book were from fied Judgment the era of King Yeongjo and King Jeongjo, and thus, it plays an important “Are there any more roofed house and of straw-roofed role in understanding the chronology of criminal law and actual trials documents to offer?” “The court hereby renders a house were two volumes and one volume of blank paper, respec- after King Hyojong. Housed in the Seoul National University Kyujanggak “Is there anything else to say?” decision.” Institute for Korean Studies. tively. The price of farmland was two volumes of blank paper per 10 Chujeongsoji (追呈所志) Litigation Costs unit areas. The price of slave was Litigation fees were charged in the Even after taking an oath of Gyeol- three volumes of blank paper per forms of Jilji (作紙), Jilmok (作木), Yulryeyoram (律例要覽) song, if there are more statements slave, capped at 20 volumes. and Jiljeon which were the This is a type of court reports featuring a to be made or evidence to be of- (作錢), fees for issuing
28 29 Chapter 2 Litigations in Joseon: People’s Voice is Heard, Justice Blossoms
Joseon’s Court Reports Joseon’s Court Procedure
1. Filing of a Petition 2. Appearance of the Plaintiff 3. Taking of an Oath of Sisong and the Defendant (at the opening argument) “It is unfair.” Heumheumsinseo (欽欽新書): “Bring the defendant.” “I swear an oath to tell the The plaintiff files a petition Korea’s First Case Law Commentary whole truth in the court.” with the court having juris- Adversarial system In this book, Jeong Yak-yong organized the summaries of criminal pro- diction over the defendant’s Adversarial system was observed in Oath taken before making a ceedings for fair disposition of criminal punishment. Since the editor place of domicile. Joseon’s litigations in which gov- statement added his own opinion and commentary on each case (under the heading As in today s trial trials in Joseon ernment intervention was minimi “in my view,” or “in my opinion”), this is deemed the first earnest attempt ’ , “Oath” as in the oath of Sisong re- also started when the plaintiff filed -zed. It is worth noting that, upon at a case law commentary in Korea. Housed in the National Library of fers to the confirmation that what a petition requesting for a trial filing of the petition, the plaintiff Korea. ( ) the individual is about to state is with the local government office had to take the defendant to the absolutely true, or a pledge to keep having jurisdiction over the defend- court. The entire procedure was one’s promise. The expression “to ant’s place of domicile. driven by the parties. take an oath” in Korean originated in this tradition.
Simrirok (審理錄) 4.Hearing/Examination turned to the offeror after taking testimony, and cross-examina- This is a book describing criminal cases (advocacy/oral proceeding an oath that what the documents tion) for several months on one’s capital offenses tried by King Jeongjo ( ) system; Verhandlungs- say is all true. If one party refuses own discretion; (b) fails to appear in chronological order from 1776 This is . maxime) to sign the document filed, the for 30 days after the second con- a court report compiling precedents for judge decided on its admissibility finement of his her servant or c “I offer this document.” . / ; ( ) future reference in subsequent case man- fails to appear for more than 30 “Did the party fail to appear, agement. Housed in the Korea University Processing Documents Filed days of the first 50 days after the yet again?” Library. start of a trial without cause the According to ≪Sasongyuchwi≫, law , practice handbook of the 16th Chinchakgyeoljeol(親着決折) court would rule in favor of the party present in court. century, documents filed by the In slave lawsuits, in case either plaintiff and the defendant were the plaintiff or the defendant: (a) sealed and signed by the other Chukwanji (秋官志) knowingly fails to appear in court party upon review. They were re- (including for offer of evidence, This is a compilation of cases under the jurisdiction of Hyeongjo, col- lected from the foundation of the Joseon Dynasty. In particular, legal procedures and precedents were well documented Originally edited by . 5. Oath of Gyeolsong 6. Rendering of a Judgment Jilji Park Il-won, the book was revised and supplemented in 1782 at the King’s (at the closing argument) and the Issuance of a Certi- The prices of a unit of small tile- command, and again in 1792. Most cases featured in this book were from fied Judgment the era of King Yeongjo and King Jeongjo, and thus, it plays an important “Are there any more roofed house and of straw-roofed role in understanding the chronology of criminal law and actual trials documents to offer?” “The court hereby renders a house were two volumes and one volume of blank paper, respec- after King Hyojong. Housed in the Seoul National University Kyujanggak “Is there anything else to say?” decision.” Institute for Korean Studies. tively. The price of farmland was two volumes of blank paper per 10 Chujeongsoji (追呈所志) Litigation Costs unit areas. The price of slave was Litigation fees were charged in the Even after taking an oath of Gyeol- three volumes of blank paper per forms of Jilji (作紙), Jilmok (作木), Yulryeyoram (律例要覽) song, if there are more statements slave, capped at 20 volumes. and Jiljeon which were the This is a type of court reports featuring a to be made or evidence to be of- (作錢), fees for issuing
28 29 Chapter 2 Litigations in Joseon: People’s Voice is Heard, Justice Blossoms
Certified Judgments
Certified Judgment (決訟立案): Glossary of Written Judgment of the Joseon Dynasty Documents of the Joseon Dynasty Joseon had a system called Ipan, in which a pertinent gov- ernment office would certify certain legal acts that took Mungweon(文券) or Mungi place between individuals. Of these, Gyeolsongipan or Gyeol- (文記) Refers to documents jeongipan (Certified Judgment) was a document authenti- . cating and certifying the content of a court judgment upon Baekmungi (白文記) the litigant’s request, consisting of the following; ① the date A document without a witness of issuance and the name of the issuing office; ② content or Piljip (affidavit-writer); op- of the petition; ③ oath of Sisong (at the opening argument) posite of Gwanseomungi, a certi- fied document with official seal taken by both parties to initiate the trial; ④ allegations of affixed. both parties and summary of evidence offered; ⑤ oath of Gyelosong (at the closing argument); and ⑥ content of the Soji (所志) judgment rendered. A type of petition filed with the government by the working class, low-ranking officials, and the Origin of the Phrase “Cheokjiji Mara low-class people; also known as (meaning ‘Better not get involved in Balgwal (白活). a lawsuit’)” Deungjang (等狀) In Joseon, the court was called Songjeong (訟庭) and the A petition for a joint action. judge was called Songgwan (訟官). Songgwan eventually came to be called judge during the Japanese colonial era. Uisong (議訟) The litigants were called Yangcheok (兩隻) and Woncheok Meaning “to send upon consult- ation its meaning in the early (元隻). The plaintiff was called Wongo (元告), and the defend- ,” period of Joseon was the dispo- ant was called Cheok (隻) or Piron (被論). Since the word sition rendered by Gwanchalsa, Written Judgment “Cheok” was used to designate the litigants and the defend- which corresponds to its origi- Revealing the Entire Trial Procedure nal meaning; later, however, the ant, the phrase “Cheokjiji Mara” was used to mean, “You’d meaning changed to refer to fil- Written judgments of the Joseon Dynasty included police better not get involved in a lawsuit.” ing of a petition with the gover- reports and evidence. Documents offered into evidence in nor. trial were returned to the offering party after putting the Waejibu (外知部) This term corresponds to today s attorney Jangyewon that oversaw slaves Ipji (立志) signature of the relevant party The written judgment sum- ’ . . ) was called Dogwanjibu (都官知部 . Those who pretended to be Jibu when in Upon litigants’ request, certifi- marized the content of documentary evidence and wheth- fact they were not Jangyewon officers were satirically called Waejibu. They ap- cation of a judgment was issued er it was signed by the relevant party. This made it pos- peared in response to the demands of litigants, namely, as the plaintiff and by writing Jegim and affixing the defendant had to drive the whole trial procedure, the parties needed pro- sible to find out where the procedure stood. Based only on the official seal in the blank fessional help. It was considered that Waejibu entities encouraged lawsuits, space of a petition; it was some- documentary review, higher authorities were able to verify and thus, professional attorneys were strictly prohibited on policy grounds. times issued separately from the whether the lower decision was justifiable. Punishment for Waejibu in the 15th century was jeongasabyeon (全家徙邊), petition. under which the entire household was removed to an outlying region, and which was a sentence just short of the death penalty. ≪Sokdaejeon≫ sen- tenced the offender to 100 lashes of whipping and banishment to a place 3,000-ri away (with 10-ri’s corresponding to about 4㎞). Any informant on Waejibu was rewarded in the same way as an informant on robbery.
30 31 Chapter 2 Litigations in Joseon: People’s Voice is Heard, Justice Blossoms
Certified Judgments
Certified Judgment (決訟立案): Glossary of Written Judgment of the Joseon Dynasty Documents of the Joseon Dynasty Joseon had a system called Ipan, in which a pertinent gov- ernment office would certify certain legal acts that took Mungweon(文券) or Mungi place between individuals. Of these, Gyeolsongipan or Gyeol- (文記) Refers to documents jeongipan (Certified Judgment) was a document authenti- . cating and certifying the content of a court judgment upon Baekmungi (白文記) the litigant’s request, consisting of the following; ① the date A document without a witness of issuance and the name of the issuing office; ② content or Piljip (affidavit-writer); op- of the petition; ③ oath of Sisong (at the opening argument) posite of Gwanseomungi, a certi- fied document with official seal taken by both parties to initiate the trial; ④ allegations of affixed. both parties and summary of evidence offered; ⑤ oath of Gyelosong (at the closing argument); and ⑥ content of the Soji (所志) judgment rendered. A type of petition filed with the government by the working class, low-ranking officials, and the Origin of the Phrase “Cheokjiji Mara low-class people; also known as (meaning ‘Better not get involved in Balgwal (白活). a lawsuit’)” Deungjang (等狀) In Joseon, the court was called Songjeong (訟庭) and the A petition for a joint action. judge was called Songgwan (訟官). Songgwan eventually came to be called judge during the Japanese colonial era. Uisong (議訟) The litigants were called Yangcheok (兩隻) and Woncheok Meaning “to send upon consult- ation its meaning in the early (元隻). The plaintiff was called Wongo (元告), and the defend- ,” period of Joseon was the dispo- ant was called Cheok (隻) or Piron (被論). Since the word sition rendered by Gwanchalsa, Written Judgment “Cheok” was used to designate the litigants and the defend- which corresponds to its origi- Revealing the Entire Trial Procedure nal meaning; later, however, the ant, the phrase “Cheokjiji Mara” was used to mean, “You’d meaning changed to refer to fil- Written judgments of the Joseon Dynasty included police better not get involved in a lawsuit.” ing of a petition with the gover- reports and evidence. Documents offered into evidence in nor. trial were returned to the offering party after putting the Waejibu (外知部) This term corresponds to today s attorney Jangyewon that oversaw slaves Ipji (立志) signature of the relevant party The written judgment sum- ’ . . ) was called Dogwanjibu (都官知部 . Those who pretended to be Jibu when in Upon litigants’ request, certifi- marized the content of documentary evidence and wheth- fact they were not Jangyewon officers were satirically called Waejibu. They ap- cation of a judgment was issued er it was signed by the relevant party. This made it pos- peared in response to the demands of litigants, namely, as the plaintiff and by writing Jegim and affixing the defendant had to drive the whole trial procedure, the parties needed pro- sible to find out where the procedure stood. Based only on the official seal in the blank fessional help. It was considered that Waejibu entities encouraged lawsuits, space of a petition; it was some- documentary review, higher authorities were able to verify and thus, professional attorneys were strictly prohibited on policy grounds. times issued separately from the whether the lower decision was justifiable. Punishment for Waejibu in the 15th century was jeongasabyeon (全家徙邊), petition. under which the entire household was removed to an outlying region, and which was a sentence just short of the death penalty. ≪Sokdaejeon≫ sen- tenced the offender to 100 lashes of whipping and banishment to a place 3,000-ri away (with 10-ri’s corresponding to about 4㎞). Any informant on Waejibu was rewarded in the same way as an informant on robbery.
30 31 Chapter 2 Litigations in Joseon: People’s Voice is Heard, Justice Blossoms
Certified Judgment on Slave Lawsuit
Reduction ratio 1/22
Certified Judgment on the Slaves of This is an Ipan issued to the Sohn family of Gyeongju-bu by Plaintiff Choi Deuk-chung presented as key evidence a manuscript describing Sohn Gwang-hyeon and Choi Deuk-chung (1560) Certified Judgment on Gyeongju-bu in 1560 (15th year of King Myeongjong’s reign), the bequest of his grandmother left to his father Choi Se-ohn and Sohn Jung- don s deceased wife This manuscript contained the distribution of bequests of One page; written in ink on paper; which was also called
32 33 Chapter 2 Litigations in Joseon: People’s Voice is Heard, Justice Blossoms
Certified Judgment on Slave Lawsuit
Reduction ratio 1/22
Certified Judgment on the Slaves of This is an Ipan issued to the Sohn family of Gyeongju-bu by Plaintiff Choi Deuk-chung presented as key evidence a manuscript describing Sohn Gwang-hyeon and Choi Deuk-chung (1560) Certified Judgment on Gyeongju-bu in 1560 (15th year of King Myeongjong’s reign), the bequest of his grandmother left to his father Choi Se-ohn and Sohn Jung- don s deceased wife This manuscript contained the distribution of bequests of One page; written in ink on paper; which was also called
32 33 Chapter 2 Litigations in Joseon: People’s Voice is Heard, Justice Blossoms
Certified Judgment on Housing and Land Lawsuit
Reduction ratio 1/18
Certified Judgment of Hanseongbu in 1661 2nd year of King This is a
34 35 Chapter 2 Litigations in Joseon: People’s Voice is Heard, Justice Blossoms
Certified Judgment on Housing and Land Lawsuit
Reduction ratio 1/18
Certified Judgment of Hanseongbu in 1661 2nd year of King This is a
34 35 Chapter 2 Litigations in Joseon: People’s Voice is Heard, Justice Blossoms
Certified Judgment on Burial Ground Lawsuit
Reduction ratio 1/16
Hanseongbu Deunggeup (1799) Content of Ruling: Hanseongbu Deunggeup Certified Judgment regarding the One page; 32×940㎝, cursive writing. ( ) We hereby set the boundary after examining documents and “ Housed in the Seoul National Univer- ownership of a forest preserve drafted in 1799 King Jeongjo Hanseongbu ( , the property, with which the parties shall comply.” sity Kyujanggak Institute for Korean 23rd year Studies. Deunggeup (1799) ) “The Plaintiff alleges that the Defendant purchased the property from a member of a Buwon-gun family, but the Buwon-gun family member says they Responsible Authority Hanseongbu : had never sold it. Hence, the property record is deemed to have been forged, Litigation Period: June 2~14, 1799 and its taxes could not have been paid either. It is very strange that the Defend- ant possesses neither the document of purchase nor Baeja nor Paeja (registra- Litigants: (Plaintiff) Lee Yeong-so tion document). If they do exist, they should be submitted immediately. The (Defendant) Park Oh-rang (or Park Man-hee) Plaintiff is also responsible for investigating the land transaction. However, based on the documents submitted by both parties and the property, though Summary of Claim: the east-west indicators Ipam and Daegweolsi are not clear, it is clear that the “Please impose a heavy punishment on the criminal who claims main street between a mulberry field in Gongjo and Saeggan in Gunggi-dong ownership of a forest preserve on which he encroached.” is the boundary. Therefore, both of the parties shall take the main street as a boundary line and should not violate it. Although it is true that the Defendant Content of Litigation: is cunning, since it is impossible to change the set boundary, both parties shall The grandfather of the Plaintiff secured a gravesite and buried his parents in follow the decision. In addition, a document submitted by the Defendant shall a forest preserve after purchasing the land from Kim Ju-seo (pen name: Gyeok- temporarily be kept in Hanseongbu.” dong) approximately 30 years ago. One day, when the Plaintiff’s grandfather grew old and weak, Defendant Park Oh-rang, who was residing under the mountains, suddenly came up and rearranged the land markings of the forest in an attempt to occupy it. He argued that the land originally belonged to him but Kim Ju-seo forged the property record and sold it to the Plaintiff’s family. Therefore, Plaintiff Lee Yeong-so filed a petition. He asked for an imposition of a heavy punishment on the Defendant for intentionally ruining the land markings on his land and falsely claiming its ownership.
36 37 Chapter 2 Litigations in Joseon: People’s Voice is Heard, Justice Blossoms
Certified Judgment on Burial Ground Lawsuit
Reduction ratio 1/16
Hanseongbu Deunggeup (1799) Content of Ruling: Hanseongbu Deunggeup Certified Judgment regarding the One page; 32×940㎝, cursive writing. ( ) We hereby set the boundary after examining documents and “ Housed in the Seoul National Univer- ownership of a forest preserve drafted in 1799 King Jeongjo Hanseongbu ( , the property, with which the parties shall comply.” sity Kyujanggak Institute for Korean 23rd year Studies. Deunggeup (1799) ) “The Plaintiff alleges that the Defendant purchased the property from a member of a Buwon-gun family, but the Buwon-gun family member says they Responsible Authority Hanseongbu : had never sold it. Hence, the property record is deemed to have been forged, Litigation Period: June 2~14, 1799 and its taxes could not have been paid either. It is very strange that the Defend- ant possesses neither the document of purchase nor Baeja nor Paeja (registra- Litigants: (Plaintiff) Lee Yeong-so tion document). If they do exist, they should be submitted immediately. The (Defendant) Park Oh-rang (or Park Man-hee) Plaintiff is also responsible for investigating the land transaction. However, based on the documents submitted by both parties and the property, though Summary of Claim: the east-west indicators Ipam and Daegweolsi are not clear, it is clear that the “Please impose a heavy punishment on the criminal who claims main street between a mulberry field in Gongjo and Saeggan in Gunggi-dong ownership of a forest preserve on which he encroached.” is the boundary. Therefore, both of the parties shall take the main street as a boundary line and should not violate it. Although it is true that the Defendant Content of Litigation: is cunning, since it is impossible to change the set boundary, both parties shall The grandfather of the Plaintiff secured a gravesite and buried his parents in follow the decision. In addition, a document submitted by the Defendant shall a forest preserve after purchasing the land from Kim Ju-seo (pen name: Gyeok- temporarily be kept in Hanseongbu.” dong) approximately 30 years ago. One day, when the Plaintiff’s grandfather grew old and weak, Defendant Park Oh-rang, who was residing under the mountains, suddenly came up and rearranged the land markings of the forest in an attempt to occupy it. He argued that the land originally belonged to him but Kim Ju-seo forged the property record and sold it to the Plaintiff’s family. Therefore, Plaintiff Lee Yeong-so filed a petition. He asked for an imposition of a heavy punishment on the Defendant for intentionally ruining the land markings on his land and falsely claiming its ownership.
36 37 Chapter 2 Litigations in Joseon: People’s Voice is Heard, Justice Blossoms
Certified Judgment on Criminal Proceeding
Reduction ratio 1/18
Certified Judgment on Lee Ji-do and Damulsari 1586 The Defendant argued that she met slave Yoonpil while wandering from place to ( ) This is a
38 39 Chapter 2 Litigations in Joseon: People’s Voice is Heard, Justice Blossoms
Certified Judgment on Criminal Proceeding
Reduction ratio 1/18
Certified Judgment on Lee Ji-do and Damulsari 1586 The Defendant argued that she met slave Yoonpil while wandering from place to ( ) This is a
38 39 Bibliography
Haechi on a rank badge on the official uniform of Daesaheon (Attorney General) Chujogyeolokrok (秋曹決獄錄) Haechi was an imaginary animal capable of judging what is right and wrong. A Haechi design was used on the official A collection of records of deaths in prison for crimes handled by Hyeongjo from 1822 to 1893. Housed in the Seoul National uniform in Joseon. Housed in the Korea University Museum. University Kyujanggak Institute for Korean Studies. Gyeongguk Daejeon (經國大典) Chuangeupgukan (推案及鞫案) A basic code of the Joseon Dynasty. Housed in the Supreme Court Library of Korea (duplicate). A book containing records on examination of felons who committed serious crimes against the basic order of the Joseon Dynasty from 1601 to 1892 Housed in the Seoul National University Kyujanggak Institute for Korean Studies Daemyeongryul (大明律) . . A code of the Ming Dynasty of China, which supplemented and modified ≪Dangryul≫, the oldest existing code from the Jeungsumuwonrok-Eonhae (增修無寃錄諺解) Tang Dynasty of China. Housed in the Korea University Library. A Korean annotated version of ≪Jeungsumuwonrok≫ written by Gu Yun-myeong during King Jeongjo’s era, which is a revised edition of ≪Muwonrok≫ a forensic book of the Yuan Dynasty of China Housed in the Seoul National University Daemyeongryul-Jikhae (大明律直解) , . Kyujanggak Institute for Korean Studies. A basic uniform code of the Joseon Dynasty, which translated ≪Daemyeongryul≫. Housed in the Seoul National University Kyujanggak Institute for Korean Studies. Third Autopsy Report on the Body of Im Nong-ok in Muan-hyeon An autopsy report on a murder case that occurred in Jukgoji-ri Ilo-myeon Muan-hyeon Housed in the Seoul National Uni- Goryeosa Hyeongbeopji (高麗史 刑法志) , , . versity Kyujanggak Institute for Korean Studies. The only material containing information on the criminal law of the Goryeo Dynasty. Housed in the Supreme Court Library of Korea (duplicate). Files Including Case Reports of the Gyeonggi Court Reports and judgments on criminal proceedings sent to the Gyeonggi Court by the governor of a county gun in Gyeonggi- Joseon Gyeonggukjeon (朝鮮經國典) ( ) do. Housed in the Supreme Court Library of Korea. A book laying out the founding tenets and the standards of state governance of the Joseon Dynasty, written by Jeong Do- jeon. Housed in the National Library of Korea. Summary Report of Namhae Hyeonryeong (南海縣令書目) A summarized report written by Hyeonryeong local governor of Namhae submitted to Amhaengeosa secret royal inspec- Sokdaejeon (續大典) ( ) tor after arresting a criminal. Housed in the Supreme Court Library of Korea. Conflicting regulations found after the implementation of ≪Gyeongguk Daejoen≫ were reconciled and organized into ≪Sokdaejeon≫. Housed in the National Library of Korea. Heumheumsinseo (欽欽新書) A book synthesizing criminal judgments geared toward a fair disposition of Hyeongok criminal cases Housed in the Daejeontongpyeon (大典通編) ( ) . National Library of Korea. A code synthesizing the provisions of ≪Gyeongguk Daejoen≫, ≪Sokdaejeon≫, and other subsequent codes. Housed in the Academy of Korean Studies. Simrirok (審理錄) A book describing capital offense cases tried by King Jeongjo from 1776 in chronological order Housed in the Korea Uni- Daejeonhoetong (大典會通) . versity Library. The last uniform code of the Joseon Dynasty. Housed in the National Library of Korea. Chukwanji (秋官志) Sugyojiprok (受敎輯錄) A book including various examples of affairs under the jurisdiction of Hyeongjo (Ministry of Justice) since the early period A code as a compilation of the Kings’ decrees issued over the 150 years before 1698. Housed in the National Library of of the Joseon Dynasty. Housed in the Seoul National University Kyujanggak Institute for Korean Studies. Korea. Yulryeyoram (律例要覽) Shinbo-Sugyojiprok (新補受敎輯錄) A book containing a variety of precedents in order to clarify the examples of punishment. Housed in the Seoul National A code as a compilation of the King’s decrees issued since the publication of ≪Sugyojiprok≫. Housed in the Seoul National University Kyujanggak Institute for Korean Studies. University Kyujanggak Institute for Korean Studies. Certified Judgment on Slave Lawsuit (case of Sohn Gwang-hyeon and Choi Deuk-chung) Jeonyultongbo (典律通補) An Ipan issued by Gyeongjubu for the Sohn family of Gyeongju in 1560 (15th year of King Myeongjong’s reign). Housed in A code as a compilation of effective provisions in various codes, including ≪Gyeongguk Daejoen≫. Housed in the National the Academy of Korean Studies. Library of Korea. Certified Judgment of Hanseongbu (2nd year of King Hyeonjong’s reign) Sasongyuchwi (詞訟類聚) A
40 41 Bibliography
Haechi on a rank badge on the official uniform of Daesaheon (Attorney General) Chujogyeolokrok (秋曹決獄錄) Haechi was an imaginary animal capable of judging what is right and wrong. A Haechi design was used on the official A collection of records of deaths in prison for crimes handled by Hyeongjo from 1822 to 1893. Housed in the Seoul National uniform in Joseon. Housed in the Korea University Museum. University Kyujanggak Institute for Korean Studies. Gyeongguk Daejeon (經國大典) Chuangeupgukan (推案及鞫案) A basic code of the Joseon Dynasty. Housed in the Supreme Court Library of Korea (duplicate). A book containing records on examination of felons who committed serious crimes against the basic order of the Joseon Dynasty from 1601 to 1892 Housed in the Seoul National University Kyujanggak Institute for Korean Studies Daemyeongryul (大明律) . . A code of the Ming Dynasty of China, which supplemented and modified ≪Dangryul≫, the oldest existing code from the Jeungsumuwonrok-Eonhae (增修無寃錄諺解) Tang Dynasty of China. Housed in the Korea University Library. A Korean annotated version of ≪Jeungsumuwonrok≫ written by Gu Yun-myeong during King Jeongjo’s era, which is a revised edition of ≪Muwonrok≫ a forensic book of the Yuan Dynasty of China Housed in the Seoul National University Daemyeongryul-Jikhae (大明律直解) , . Kyujanggak Institute for Korean Studies. A basic uniform code of the Joseon Dynasty, which translated ≪Daemyeongryul≫. Housed in the Seoul National University Kyujanggak Institute for Korean Studies. Third Autopsy Report on the Body of Im Nong-ok in Muan-hyeon An autopsy report on a murder case that occurred in Jukgoji-ri Ilo-myeon Muan-hyeon Housed in the Seoul National Uni- Goryeosa Hyeongbeopji (高麗史 刑法志) , , . versity Kyujanggak Institute for Korean Studies. The only material containing information on the criminal law of the Goryeo Dynasty. Housed in the Supreme Court Library of Korea (duplicate). Files Including Case Reports of the Gyeonggi Court Reports and judgments on criminal proceedings sent to the Gyeonggi Court by the governor of a county gun in Gyeonggi- Joseon Gyeonggukjeon (朝鮮經國典) ( ) do. Housed in the Supreme Court Library of Korea. A book laying out the founding tenets and the standards of state governance of the Joseon Dynasty, written by Jeong Do- jeon. Housed in the National Library of Korea. Summary Report of Namhae Hyeonryeong (南海縣令書目) A summarized report written by Hyeonryeong local governor of Namhae submitted to Amhaengeosa secret royal inspec- Sokdaejeon (續大典) ( ) tor after arresting a criminal. Housed in the Supreme Court Library of Korea. Conflicting regulations found after the implementation of ≪Gyeongguk Daejoen≫ were reconciled and organized into ≪Sokdaejeon≫. Housed in the National Library of Korea. Heumheumsinseo (欽欽新書) A book synthesizing criminal judgments geared toward a fair disposition of Hyeongok criminal cases Housed in the Daejeontongpyeon (大典通編) ( ) . National Library of Korea. A code synthesizing the provisions of ≪Gyeongguk Daejoen≫, ≪Sokdaejeon≫, and other subsequent codes. Housed in the Academy of Korean Studies. Simrirok (審理錄) A book describing capital offense cases tried by King Jeongjo from 1776 in chronological order Housed in the Korea Uni- Daejeonhoetong (大典會通) . versity Library. The last uniform code of the Joseon Dynasty. Housed in the National Library of Korea. Chukwanji (秋官志) Sugyojiprok (受敎輯錄) A book including various examples of affairs under the jurisdiction of Hyeongjo (Ministry of Justice) since the early period A code as a compilation of the Kings’ decrees issued over the 150 years before 1698. Housed in the National Library of of the Joseon Dynasty. Housed in the Seoul National University Kyujanggak Institute for Korean Studies. Korea. Yulryeyoram (律例要覽) Shinbo-Sugyojiprok (新補受敎輯錄) A book containing a variety of precedents in order to clarify the examples of punishment. Housed in the Seoul National A code as a compilation of the King’s decrees issued since the publication of ≪Sugyojiprok≫. Housed in the Seoul National University Kyujanggak Institute for Korean Studies. University Kyujanggak Institute for Korean Studies. Certified Judgment on Slave Lawsuit (case of Sohn Gwang-hyeon and Choi Deuk-chung) Jeonyultongbo (典律通補) An Ipan issued by Gyeongjubu for the Sohn family of Gyeongju in 1560 (15th year of King Myeongjong’s reign). Housed in A code as a compilation of effective provisions in various codes, including ≪Gyeongguk Daejoen≫. Housed in the National the Academy of Korean Studies. Library of Korea. Certified Judgment of Hanseongbu (2nd year of King Hyeonjong’s reign) Sasongyuchwi (詞訟類聚) A
40 41 Introduction to the Judicial History Materials Exhibition
History of Laws and Courts based on Historical Documents Judicial History Materials Exhibition
The Supreme Court Library of Korea collects law- and court-related materials held by relevant organizations and receives private donations, to manage, pub- lish, and display them as judicial history materials. As a part of such effort, the Printed June 2016 Supreme Court Library hosts the Judicial History Materials Exhibition to intro- Published June 2016 duce the Korean judicial history and shed a new light on the value of law. It is Published by Supreme Court Library of Korea 219 Seocho-daero, Seocho-gu, Seoul (06590) our hope that the exhibition would be an opportunity for the public to deepen Tel 02·3480·1575 understanding of the Korean legal culture and for the court to reach out to the http://history.scourt.go.kr public. We look forward to your interest and participation. Produced by Design Wood&Fish 22-gil, 22 Jinheung-ro, Jongro-gu, Seoul (03013) Tel 02·3296·3746 Photography Space Balance, Inc. (02·541·4919) Judicial History Materials Exhibition Printed by Micom Art Printing
Date December of every odd year Place Supreme Court of Korea Copyright© 2016 Supreme Court Library of Korea Exhibition Themes All rights reserved. No part of this volume may be reproduced in any form or by any Laws and Trials of the Japanese Colonial Era (2015) means without authorization. Laws and Trials in the Late Period of the Joseon Dynasty - Dawn of Modern Judiciary (2013) Copyrights to the photographic materials in this publication belong to their respective Laws and Trials of the Joseon Dynasty (2011) owners. Introduction to the Judicial History Materials Exhibition
History of Laws and Courts based on Historical Documents Judicial History Materials Exhibition
The Supreme Court Library of Korea collects law- and court-related materials held by relevant organizations and receives private donations, to manage, pub- lish, and display them as judicial history materials. As a part of such effort, the Printed June 2016 Supreme Court Library hosts the Judicial History Materials Exhibition to intro- Published June 2016 duce the Korean judicial history and shed a new light on the value of law. It is Published by Supreme Court Library of Korea 219 Seocho-daero, Seocho-gu, Seoul (06590) our hope that the exhibition would be an opportunity for the public to deepen Tel 02·3480·1575 understanding of the Korean legal culture and for the court to reach out to the http://history.scourt.go.kr public. We look forward to your interest and participation. Produced by Design Wood&Fish 22-gil, 22 Jinheung-ro, Jongro-gu, Seoul (03013) Tel 02·3296·3746 Photography Space Balance, Inc. (02·541·4919) Judicial History Materials Exhibition Printed by Micom Art Printing
Date December of every odd year Place Supreme Court of Korea Copyright© 2016 Supreme Court Library of Korea Exhibition Themes All rights reserved. No part of this volume may be reproduced in any form or by any Laws and Trials of the Japanese Colonial Era (2015) means without authorization. Laws and Trials in the Late Period of the Joseon Dynasty - Dawn of Modern Judiciary (2013) Copyrights to the photographic materials in this publication belong to their respective Laws and Trials of the Joseon Dynasty (2011) owners.