AAS Annual Meeting

Korea Session 446

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Session 446: Law, Ideology, and Practice in Korea: Rereading Korean Legal History in Comparative Perspective

Organizer: Sohyeon Park, Sungkyunkwan University, South Korea

Chair: Hiroshi Miyajima, Sungkyunkwan University, South Korea

Discussant: Jieun Han, Sungkyunkwan University, South Korea

Examining Korea’s legal development from a broad comparative perspective is vital to a comprehensive understanding of Korean legal culture. Since its founding in 1392, the Chosŏn dynasty considered the Great Ming Code to be the basis of Korean law. The reliance on the Chinese code continued until the late nineteenth century when modern European law and legal concepts came to replace old Chinese models of law and justice. Despite the prominent existence of Chinese law in Korean law, however, Korean legal authorities and jurists were clearly mindful of the differences and divergences existing between foreign legal norms and indigenous legal practices. The efforts to reinterpret and modify imported legal standards and judicial procedures in the context of Korean society were persistent even under the heavy influence of the Chinese legal tradition. This panel examines Korea’s reception and acculturation of foreign laws during the Chosŏn dynasty and the colonial period. Ki-Won Hong investigates the question of conflict of laws between the Chosŏn and the Ming rules over the imposition of death penalty on capital crimes in the late fifteenth century. Jae-woo Sim explores a Korean version of the most extreme form of Chinese execution called lingchi – “death by a thousand cuts” – from a comparative perspective. Sohyeon Park discusses the Korean reinterpretation of the Chinese legal tradition and the emergence of Korean jurisprudence by examining Chŏng Yagyong’s Hŭmhŭm sinsŏ. Marie Seong-Hak Kim reconsiders the process of legal transplantation in Korea by focusing on the theories and practices of customary law in world history.

Comparative Reflections on the Myth of Custom and Korean Legal History
Marie S. Kim, St. Cloud State University, USA

Recently scholars of European legal history have questioned the traditional belief of customary law as popular expression and argued that the making of customary law in late medieval France was instead an innovation undertaken by the royal courts to regulate society through state law. This paper explores the ramifications of this argument in studying Korean legal history. The concept of custom was first introduced to Japan in the wake of legal modernization in the late nineteenth century, and was subsequently brought to Korea through colonial judges, who recognized and reconstructed local norms as customary law and reinforced them through judicial regulations. The construction of customary law order in colonial Korea indicates that custom was the work of an administrative and bureaucratic state that tried to unify legal sources and centralize the realm, much in line with the European experience from late medieval France to French colonial West Africa in the early twentieth century. I argue that customary law played a key role in legal transplantation throughout history. Careful consideration of the role of customary law can contribute to the understanding of the evolution of civil law in Korea and East Asia from a broad comparative perspective, in a continuum of the legal development in Europe.

The Practice of the Most Extreme Death Penalty Nŭngji Ch’ŏch’am in the Chosŏn Dynasty
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The main focus in this paper lies in the most extreme form of punishment called nŭngji ch’ŏch’am (nicknamed “death by a thousand cuts”) during the Chosŏn period. I will first examine how this particular form of execution was performed in the Chosŏn dynasty through the analyses of Korean regulations and case examples, and thereafter make a comparison with the Chinese counterpart: that is, lingchi. A Korean form of bodily dismemberment was continuously used to punish high treason or the most heinous crimes such as parricide throughout the Chosŏn dynasty until its abolition at the Gabo Reform of 1894. This Korean death penalty shows many affinities with the Chinese counterpart, in particular, in view of objective and function. However, in its actual performance, it shows a great divergence from the Chinese lingchi execution. The method of execution was different from the Chinese counterpart: the prisoner’s body was torn with his neck and limbs being tied to the carts drawn by horses ordered to race in different directions. The most prominent examples in Korean history are the executions of “Six Honorary Officials,” who attempted to assassinate King Sejo in order to reinstate King Danjong. By examining how the Chosŏn people practiced this kind of execution considered as one of the cruelest punishments in East Asia, we will understand the unique nature of Korean legal culture.

“Rather than Put an Innocent Person to Death...” : Conflict of Laws in Capital Punishment Cases During the Late Fifteenth-Century Chosŏn Period
Ki-Won Hong, Independent Scholar, South Korea

“Rather than put an innocent person to death, you will run the risk of irregularity and error.” This famous saying ascribed to the legendary Gaoyao is considered as one of the Confucian precepts that exerted a strong influence on criminal justice in East Asia. But this everlasting Confucian principle did not always prevail over Legalist thinking that advocated the strict application of laws and harsh punishments. In fact, history of criminal justice in East Asia should be rewritten in considering the fact that Confucian officials constantly struggled with Legalists in order to validate Confucian moral principles in legal practices as well as in theory. We will find some Korean examples from the late fifteenth-century. During the early Chosŏn period Korean scholars who focused on the study of Confucian classics also attempted to establish the relationship between Confucian politics and indigenous legal practices, and thereafter emerged the serious conflicts over controversial criminal cases between Confucian scholars who had firm beliefs in Confucian teachings and officials who put a high emphasis on public security. I will examine fifteen capital criminal cases from the late fifteenth century, to which in dubio pro reo principle was applied. Herein, we will see the sharp tension between the Great Ming Code and the Taejŏn songnok arguments. As a result, the frequent occurrences of such cases will show the conflicts between imported Chinese law and the national interest in security reinforcement in Korean legislation.

Law and Literature in Korean Legal Culture: Chŏng Yagyong’s Hŭmhŭm sinsŏ and the Emergence of Korean Jurisprudence
Sohyeon Park, Sungkyunkwan University, South Korea

Chŏng Yagyong (1762-1836), one of the greatest thinkers in Practical Learning (sirhak) School, published the One Treatise and Two Books (irp’yo yisŏ) in series between 1817 and 1819 in an attempt to provide government officials with main principles and practical methodologies for social reform and public welfare. Of his trilogy, the Hŭmhŭm sinsŏ (1819) focuses on penal law and the administration of criminal justice. It includes a great deal of criminal case records along with detailed commentaries on law and justice. Most interestingly, the author was concerned with a great variety of Chinese materials including Confucian classics, case summaries, historical records, and even courtcase stories as well as Korean case records. Chŏng’s keen interest in both Chinese and Korean case literature and his empirical approach to criminal law in the Hŭmhŭm sinsŏ seem unprecedented in Korean jurisprudence. My main concern is to examine how he defined the gap between Chinese legal norms and Korean judicial practices and how he reinterpreted China’s legal tradition in an attempt to reestablish a domestic legal order. In this way, this paper will shed light on Korean intellectual tendencies to reconstruct their own cultural tradition by deconstructing the great Chinese tradition in a rational and critical way.