Law and the Body in Joseon Korea: Statecraft and the Negotiation of Ideology

Once considered almost exclusively to be the domain of legal scholars, Joseon dynasty criminal law is recently attracting increasing attention from social, political and intellectual historians of Korea. Despite often reaching opposing conclusions on the characteristics of Joseon legal culture, historians and legal scholars share a strong focus on the dominating role of Confucian ideology. While acknowledging the importance of Confucianism for Joseon statecraft, this paper argues that in actual statecraft and the application of the law, this ideology was negotiated with the perceived needs of the state. The focus of analysis is the relationship between the judicial process—investigation, interrogation and punishment—and cosmological, ideological and cultural notions related to the body. The purpose is to show the tension between the state need to maintain the system and uphold social order (as defined by the state) and the need for the state itself to adhere to the basic principles of the ideology that underpinned this system. Addressing the role of law and punishment in statecraft, the analysis is based on a theoretical framework that combines a conflict-based understanding of society with one that is consensus-based. While on the one hand the violation of notions related to the body was the purport of punishment when dealing with the most severe crimes against the state and its ideology, we can also see how such notions influenced the discourses on penal benevolence, torture and exhumation, whilst partly constituting the reason why some forms of torture were prohibited

(A)Study of Simrirok, a record criminal trial record under the reign of King Jeongjo : death sentences and changes in social control

학위논문(박사)--서울대학교 대학원 :국사학과,2005.Docto

18세기 獄訟의 성격과 刑政運營의 변화

학위논문(석사)--서울大學校 大學院 :國史學科,1995.Maste

The Principle of 'Guilt by Association' of the Joseon dynasty period : Analysis of the 『List of Souls Guilty by Assodation』

19세기 후반 근대화 과정의 조선에서 그동안의 낡은 형률·형벌이 폐지되고, 근대적 형사사법제도가 본격적으로 도입되었다는 것은 주지의 사실이다. 이 때 일차 적으로 1894년 갑오개혁 때 폐지된 대표적인 규정을 두 가지 제시하면, 緣坐制(1894년 6월) 및 新刑·埈遭處軟刑(1894년 12월)의 폐지였다. 여기서 우리가 확인 할 수 있는 것은 참혹한 신체 절단형인 능지처참형과 함께 연좌제는 당시 우선적으로 폐지되어야 할 대표적인 낡은 악법으로 인식되고 있었다는 사실이다. 필자가 본고에서 주목하고자 하는 것은 이 가운데 '연좌제'의 문제이다. 그럼 연좌제란 무엇인가? 연좌제는 범죄인과 특정한 관계 에 있다는 이유만으로 죄 없는 사람까지 연대책임을 지게 하여 처벌하는 제도를 말한다. 연좌제는 엄밀 히 구분하면 가족·친족 등에 대한 혈연적 연좌(緣坐) 지역주민이나 동료 관리들을 함께 별주는 연좌(連坐) 등으로 나눌 수 있으며, 그 연원을 따지면 중국 고대 형법에까지 소급할 수 있을 것이다. The principle of "Guilt by association" refers to a doctrine of punishment, which holds innocent people accountable on1y for the reason that they are involved in a certain level of relationship with a criminal offender. During the Joseon dynasty period, there were several cases of political incidents such as treasonous conspiracies or general insurrections in which this principle of "guilt by association" was applied. Such cases will be examined in this article, in order to determine how such principle was actually realized through the punishments of those political offenders, and also to define (or redefine) the nature of the political culture of Joseon, based upon such determination. In this article, individual cases are analyzed in details, in order to find out how they were actually applied to Joseon-specific situations, rather than merely attempting to understand the contents of relevant institution, by dryly examining all the legal clauses and regulations related to the "guilt by association" principle. Also, other than the well known sources such as the "Annals of the Joseon dynasty" or Legal codes such as 『Dae"Myeong-ryul』 and 『Gyeong"guk Daejeon』, the 『List of Souls Guilty by Association("Yeonjwa-an/緣坐案")』, a document which was not previously fully examined and recently newly brought to my attention, was analyzed as a new source of information, to facilitate this study. This document contains detailed information of how the "guilt by association" principle was applied to the Joseon cases, since the days of King Yeongjo through the days of King Gojong. The result of the examination shows that today"s perception of the "guilt by association" principle was not that very well founded upon empirical data. The negative view upon the Joseon political culture, which was formed upon such unfounded perception and also a general misconception that believed the guilt by association principle was abused and overused at the time, should be reconsidered in the future.이 논문은 2010년 한국학중앙연구원 한국문화심층연구사업 공동과제로 수행된 연구임(AKSR2010-C01)

How Christians were exiled in 1801 and what kind of lives they had: Examination of Sahak Jingeui(邪學懲義)

이 논문은 2018년도 한국순교복자성직수도회의 순교 심포지엄 연구 과제로 수행된 연구 결과물이며, 2019년 5월 18일에 해당 수도회 본원의 복자회관 성당에서 배교․유배․증언 을 주제로 진행된 제9회 순교 국내 학술 심포지엄에서 발표한 원고의 제목과 내용을 일부 수정한 것이다. 발표 당시 제목은 1801년 천주교인 유배 조치의 양상과 유배인의 삶: 사학징의(邪學懲義) 분석을 중심으로이다.Historical studies of Christianity in the latter half period of the Joseon dynasty have most dominantly examined (virtually only) the martyrs. This choice in research unintentionally narrowed the scope of examination on Joseon Christian history itself. So as an attempt to widen our horizon, this article focused upon the Christian believers themselves (how they existed, and what kind of lives they led) around the time of their exile as a result of the Shinyu-year persecution[辛酉邪獄]. Primary source of reference consulted in this article is Punishing the Evil (Sahak Jingeui, 邪學懲義) which contains the most detailed information regarding people put to exile, while other secondary sources such as Seungjeong-weon Ilgi or chronological history materials, and the The Implicated (Yeonjwa-an, 連坐案, currently in custody of Jangseogak at AKS and Kyujanggak at SNU) were also examined. The result could be summarized as follows. First, in case of people exiled for believing in evil teachings(Sahak, 邪學), the government closely monitored them and restricted their activities mush harsher than it would other exiled offenders, so that this particular group of offenders could never inseminate Christianity in regions they were exiled. Second, according to Sahak Jingeui, among total of 226 exiled offenders, 83 of them were interrogated at the Capital by offices of Euigeum-bu (Chief Investigator office) and Hyeongjo (Ministry of Penal affairs), while 121 of them were processed under local Gwanchal-sa magistrates own authorities, and 22 were exiled because they were either family members, relatives or acquaintances of Martyr Hwang Sa-yeong(黃嗣永). They were mostly exiled to the Jeolla-do and Gyeongsang-do provinces, while 23 of them were even exiled to islands (where living conditions were generally worse.) Among the exiled 226, 49 were females. Third, in order to prevent them from interacting with each other, they were dispersed throughout the country and exiled to all eight provinces. Family members of martyrs were in most cases sent to islands and became slaves to serve local offices[官奴婢]. Fourth, the offenders were forced to lead an abysmal life where they resided, and while some of them were released from their exile in 1832 by a governmental pardon, many of them died during exile. This study managed to portrait the overall situation of the Christians exiled in 1801, and rectified some errors that remained in past literature. It is regretful that their lives during exile could not be extrapolated more due to lack of historical resource

The Nature of the People exiled to the Pyeongan-do region in the Early half of the 19th century, and the Exile Management in that region - Analysis of the events that happened during King Sunjos reign, recorded in 『Pyeongan Gamyeong Gyerok/平安監營啓錄』-

Examined in this article is a Gyerok/啓錄 material, which was an official report generated by the local offices and then sent to the Central government. These Gyerok reports serve as important somces of information, as they would help us define the natme of the Punishment of Exile, and the meaning it had throughout the Joseon society. Also, the local authorities management of exile cases, as well as the meaning of that local management in terms of the history of Korean legal adminstration, are all examined here. This topic was never fully examined in previous studies, so a single text was specifically chosen to be examined in this article. Analyzed here is the 『Pyeongan Gamyeong Gyerok』 from the 19th century, currently in custody of the Gyujanggak Archives. Compared to most of the Gyerok materials that remain today, this text contains great many cases, and also well documented them in a chronological order. This text also most vividly shows us the details which concerned the implementation of exile punishments in the local areas. According to the results of the analysis, throughout a 29-month period since 1830 through 1834, in average four persons a month were exiled to the Pyeongan-do region, from either the capital or other provinces. It also seems that the task of facilitating the convicts arrival upon the sites which were designated for their exiled life, as well as filing official reports to the central government regarding the subsequent management of those exiled people, constituted an important part of the local magistrates duties. The number of people who came from other provinces greatly exceeded the number of people who were sent there from the capital, by either the Euigeum-bul/義禁府 office or the Hyeong-jo/刑曹 Ministry. Their crimes or charges included not only the ones that were related to certain social issues, such as lawsuits that concerned Mountain Cemeteries (Sansong, 山訟), or the act of abusing collected taxes or neglecting to submit taxes in the first place(Poheum, 逋欠), but also various criminal cases which were happening throughout the Joseon society in its later days. It should also be noted that there were no political offenders sent here from the capital, probably because of the location of the Pyeongan-do province, which was sharing borders with the Chinese Qing dynasty. This article only examined a single text, which provides us with limited information concerning the situation of a single province, Pyeongan-do in this case, for a limited time period which was the later days of the Joseon dynasty. Yet, even from this limited pool of information, we can clearly see the patterns that were exhibited in the Local Exile adminstration during the latter half period of the Joseon dynasty. The whereabouts of the exile sites, their crimes that landed them in those exiles, and local managements of the people who were exiled, all shed some light on the subject at hand, and let us better understand the nature of the late Joseons exile punishment, as well as the details of the required operations.이 논문은 2011년 한국학중앙연구원 한국문화심층연구사업 공동과제로 수행된 연구임(AKSR2011-C02)