朝鮮時代 儒敎的 法治(the rule of law)의 法解釋論: 조선의 목적중심적 법해석론의 규명

The identity of the State derived from confucian constitutionalism in the great work of founding the State, Choseon dynasty. Thus, legal reasoning was in the basis from confucianism and judges followed an ideal of confucianism in Choseon. There was the BiBu(比附), an instance of analogical interpretation in Ta Ming Lu(大明律), chinese ancient law, which was source of law in Choseon. Judges gave a decision on cases, according to this article. I argue that it is not a sort of analogical interpretation but an interpretation for legal goal, confucian purpose. Also, I claim that the BiBu was not opposed to the principle of legality(nulla poena[nullum crimen] sine lege) in this research. Moreover, judges nullified the validity of criminal code in which acted the death penalty for the suspect if the case was a confucian revenge in that the father or brother of the susupect was murdered by the victim. It is a case ,for example, B is the A`s father, and B is murdered by C and A kill C. It is the confucian revenge. Judges not sentence the capital punishment in this case. This confucian revenge was not a homicide in Choseon. A great number of writers argued that this interpretation was a mediation between the law and morality. I argue, however, they misunderstand the nature of what is the law and what kind of legal interpretation. It is the balancing of two principles. One principle is murderer must be dead. The other is the confucian revenge, which a son must revenge himself on his father`s enemy. Judges must decide which principle is more important. It is the balance of weight. In this respect, this legal interpretation was not only for the confucian purpose, but also for the legal goal, in that the legal goal and the confucian purpose was an identical conception. A main theory on the legal interpretation was the reasoning for the goal in Choseon.