흠흠신서를 통해 본 다산의 형벌사상

Dasan Jung Yak Yong’s thought of criminal law can be understood based on 『Heumheumsinseo』, which refused the existing framework regarding the criminal law. In other words, the book tried to integrate and classify the criminal cases based on precedents. His research focused on not just introduction of the law, but also on a critical analysis of the criminal cases. As his criminal justice theory and criminal policy theory were created by classifying a study of court’s precedents, they could be considered precious guidelines on the criminal law at that time. Therefore, the purpose of this paper is to compare the criminal justice theory included in 『Heumheumsinseo』 with the current criminal law system of Korea, and to prove that Dasan’s thoughts on the criminal law and punishment never fall behind the current penological theory applied to the Korean society. For example, in order to mitigate punishment, the Discretionary Mitigation tried to set up standards with the consideration of all the situations, and put substantive truth on the top of its priority. The discretionary mitigation has something in common with the principle of subsidiarity in the criminal law and ultima ration because it tried to protect people from getting severe punishment based on the thought of Heumhyul. For Dasan, the purpose of legislation on punishment was to reduce the number of people who are punished and at the same time to develop and establish education of public morals. In the end, the ultimate purpose is to correct criminals rather than to punish them through intimidation. In other words, he wanted to build utopian society where the morality is more valuable than others. When it comes to punishment execution, Dasan thought of as a mediator between heaven and the people. That’s why Dasan wanted to place a strict limit on the person who wields punishment power. According to this thought, he strictly criticized corrupt Mokmingwan at that time and emphasized impartial judgment by the law. Furthermore, he underlined the executors’ transparency in punishment by reforming penal system. In this regard, Dasan’s thoughts of the criminal law are in line with today’s criminal theories in Korea. more over. More importantly, his thoughts give us numerous lessons and precious values.