This report is the second study on reviewing existing studies on, and conducting additional research on the criminal law in The Joseon Dynasty. The study first selected and analyzed the types of crimes shown in each article of the Joseon criminal law that could be linked to that of the current criminal law, and compared and examined it with each article of the current criminal law so as to determine the trends in each article of both Joseon and current criminal law, and furthermore, to discuss implications from such trends.
Characteristics that could be identified by comparing the Great Ming Code in The Joseon Dynasty and the current criminal law are as follows: 1) based on the differences in objective constituents, the law is divided into detailed components; 2) a single penalty is administered to all components; 3) the types of crimes are subcategorized and defined as such based on the method and result of the criminal act; 4) most types of crime distinguish the existence of the result from the act of the crime; 5) there is even a regulation that allows for severely punishing an act of preparing for or plotting a crime if the crime to be committed is serious; 6) the means and methods used in the act of crime are categorized in detail; 7) the act of crime resulting in death is distinguished from that resulting in injury; and finally, 8) based on then medical knowledge, the result of injury is defined as detailed as possible based on the damaged body parts.
While the Joseon Kingdom is an absolute monarchy ruled by Confucian values and based on Neo-Confucianism, its society did not arbitrarily administer justice or give trials to criminals as generally shown in mass media or fictional works. Furthermore, the types of crime prohibited by the penal codes on the Literary Explanation of the Great Ming Code in the Joseon Dynasty differ from the modern criminal law only by the criminal categorization system and the penalties administered, and most of these criminal types are not much dissimilar to those of the modern criminal law. For example, the criminal law in the Joseon Dynasty contains specific regulations, such as various types of sex crime, bribery and corruption, and calumny, which could be easily considered articles of the modern criminal law. Particularly, the regulation on governmental officials that severely dealt with government officials who would take a bribe is closely related to the Solicitation and Graft Act, which has recently been enacted to prevent government officials from taking bribes.
Even 100 years after having received the Western criminal law system, the identity of Korean criminal law has not been fully established. As such, the criminal law in the Joseon Dynasty should not be thought of merely as a legacy or an obstacle to overcome, but should be considered in establishing the identity of Korean criminal law. In other words, further research should be continued by placing the criminal law in the Joseon Dynasty as a subject of comparative law.
Criminal law, Joseon Dynasty