다산 정약용의 형률론- 『흠흠신서』 판례 분석을 중심으로 -

One of the characteristics while codifying the Sokdaejeon(續大典) and the Daejeontongpyeon(大典通編) in the 18th century was a rapid increase of penal provisions. Through this phenomenon, we can recognize that the previous control that had been symbolized as the Kyeongkukdaejeon(經國大典) met with limit. And we can also find out that new laws and regulations which fit in the 18th century was required to overcome those situations. The change like this in penal code and the conversion of recognition also appeared in the Heumheumsynseo(欽欽新書) written by Dasan Chŏng Yakyong (1762~1836). The distinguishing marks of Dasan's thoughts about penal code in the Heumheumsynseo are followings : Dasan presented the principles for judging homicide cases. Dasan wrote that judges should look after the week taking account of circumstances(情況). And he also wrote that judges should sentence plebeians to death from the standpoint of Confucian respects for human life and perform a positive autopsy on corpses in person. Except these principles, the outstanding characteristic of Dasan's thoughts about penal code was getting over the epistemology of moral obligation. We can find this fact in that Dasan didn't decide homicide cases mainly on the basis of a social status and Dasan limited revenges to penal matters. First, in the matter of a social status, Dasan emphasized circumstances in judging homicide cases in stead of a social status. On the other hand Chuja(朱子, 1130~1200) accentuated a social status in judging homicide cases. Therefore Dasan's perception of penal code got out of Chuja‘s feudal consciousness. Second, in the matter of revenge, Dasan criticized that many judicial officers beautified revenge in getting wrapped up in faith, morality and edification and so on. And on the basis of the Chule(周禮), Dasan laid stress on preventing personal revenges and setting up a public power. This is distinguished from Song Siyeol(宋時烈, 1607~1689) who extolled personal revenges. This means that, in solving revenge problems, Dasan had other thoughts in comparison with Seoin(西人)·Noron(老論) who stressed revenge based on faith which had been emphasized as the name of Boksooseolchi(復讐雪恥, getting even with the Qing Dynasty) since the 17th century. Given these facts, we can know that Dasan tried to settle the matters in homicides with the perception of penal code which overcame the epistemology of moral obligation.