동아시아의 서양법 계수 -법학적 인간학의 패러다임 전환의 맥락에서-

Now peoples of East Asian countries take it for granted that law consists of public law and private law. However, comparing the pre-reception period with the post-reception period of Western law in East Asia, we recognize immediately that this distinction is a very significant result of the reception of Western law. The traditional society of East Asia (mainly Korea and China) had almost no propensity to develop private law because the highly centralized political and legal system of monarchy reigning with a harsh legalistic apparatus under the flag of a Confucian sage king as an ideal rulership which prevailed through its long history over two thousand years overtly preferred public law, especially criminal law, in order to maintain its government and governance over the people. Western legal culture was, on the contrary, decisively determined by the unique experience of Roman Republic (not only as Res publica but also as S.P.Q.R.) in which a political participation of the people was institutionalized and so enhanced the value of the citizenship (“Republican Revolution”, as I name it). Every citizen as a person enjoyed, independently of his social status, legally protected rights. D.1.1.1.2 Ulp. 1 inst. ... privatum (sc. ius est) quod ad singulorum utilitatem (sc. spectat): ... (private law is that which concerns the interests of individuals) This is the background of the reception of Western law. The reception process has brought new legal norms and institutions into the traditional legal culture, and with them unavoidably also Western juridical anthropology with its Weltanschauung and Menschenbild. That means an epoch-making paradigm shift East Asia never before experienced, but in the case of Korea no attention has been paid hitherto to the phenomenon as such. This paper intends to elucidate defining traits of the traditional East Asian legal culture, especially its pan-moralism leading, as a matter of logic, to catch every human relation in terms of various duties instead of attributing each one his due, especially his legitimate rights (ius suum cuique), in comparison with Western legal culture, whose definite basic characteristics from the beginning of its development in Rome: personalism, legalism, and intellectualism as Franz Wieacker defined shall serve as a test. The work shows that the reception of Western law was a revolutionary historic event in which the traditional East Asian legal culture rapidly transmuted into a radically modernized legal system by adopting new legal concepts, principles, terms, norms, and institutions as well as by learning new “legal grammar” and legal reasoning, in the end a new juridical anthropology, the fundamental way of how we define and treat accordingly the human person in the legal world, inevitably accompanying this process. East Asian legal culture, indeed, received the Western way of lawyering which the Western world has practiced ever since the ancient Roman period. Its essence lies in a fully developed legal system of private law concentrating on the protection of private rights, public law buttressing it up. This system is precisely based upon a fundamental assumption that a human person is naturally, i.e. according to the natural law (ius naturale), both free and equal, as the Roman jurists postulated: D.1.1.4 Ulpianus libro primo institutionum. [= Inst. Iust. 1.2.2] ... utpote cum iure naturali omnes liberi nascerentur ... (since, according to natural law all persons were born free,) D.50.17.32 Ulpianus libro 43 ad Sabinum. Quod attinet ad ius civile, servi pro nullis habentur: non tamen et iure naturali, quia, quod ad ius naturale attinet, omnes homines aequales sunt. (So far as the Civil Law is concerned, slaves are not considered persons, but this is not the case according to natural law, because natural law regards all men as equal.) Such a positive evaluation of the private itself was foreign to the traditional legal culture of East Asia. This transformation happened surprisingly quickly and thinkably radically. The traditional culture of East Asia with its in principle secular Confucian bent and tint has proved itself to be capable of adopting new perspectives and modes of thought in the world of law, taking up at the same time a new anthropology of law. Consequently, East Asian people live now just like Europeans or Americans under a well modernized legal system of a Western style as a whole, tradition playing virtually no more a significant role. It now happens in Korea that an exaggerated position for a private right is, in extreme cases, weakening or deteriorating consciousness of the citizens for public interests and hindering reasonable functioning of the public officials. Fortunately, the Constitution does its proper job to accommodate public sectors and private interests, adjust public law and private law accordingly and adjudicate what is Caesar’s to Caesar. In Korea, however, there seems to be yet a tendency of knowingly or unknowingly requiring problem solutions which would be absolutely valid, so that no one who is more or less realistic and reasonable could imagine it would work. Such idealistic tendency in a pejorative sense has seemingly outlived the traditional idealizing culture of East Asia. That tendency in thinking and behavior makes it difficult to meet and solve adequately real conflicts and problems, legal or not. Public law and private law make up a basic structure of law. The Roman jurist Ulpian already referred to it as a matter of fact: Huius studii duae sunt positiones, publicum et privatum (D.1.1.2). The real meaning of the coexistence of public law and private law as the most significant result of the reception of Western law in East Asia will be not disclosed until we reflect upon the weight or rather the weightlessness of the private in the traditional East Asian society and then following paradigm shift of the juridical anthropology after the reception of Western law at the turn of the nineteenth to the twentieth century.