흠흠신서(欽欽新書)를 통해 본 정약용(丁若鏞)의 양형(量刑)론

A Confucian Legal Thought of Jung, Yak-Yong : An Analysis of Sentencing Guideline

Jung Yak-yong criticized that Choseon Dynasty`s Principle of Sentencing Guideline were imbued with doctrines of Chu His, and suggested a new approach, theory of Shimkwon, the mind could be subjects of moral or immoral acts. His sentencing argument as the principle of the guilty party(Schuldprinzip) was based on the loyalty and love of people. Thus, in this respect, he suggested reasons of mitigating that were misadventure, misfortune, disease, poverty, and mistake of crime-constituting condition. Revenge on the enemy of parents or grand parents was included in that reasons. But, Jung could not classify the misadventure and the mistake. There is an argument that he had less to emphasize law as compared with Ogyu Sorai of Tokukawa Japan. However, I think that this is derived from misunderstanding of concept of the rule of law. The rule of Li(禮) is an obvious parallel to the rule of law in the formal perspective. According to natural law theory, law must be related with morality. He argued his theory on the natural law theory. Also, Jung asserted that the law is not a means to utilitarian end, but pursuing moral values. In his respect, people were a essential element of nation as moral community. I tentatively conclude that Jung held the concept of law as natural law. Thesis of SungLi(性卽理) is an ontological perspective of human nature. This perspective explain that agent`s acts are under the control of universal and unconditional laws. However, Jung denied this thesis, and he recognized the individual desire. Also, he realized the human mind to get the enjoyment and exercise of freedom and rights.