‘離之’: 南宋 시기 지방관의 ‘違法’ 혼인에 대한 인식과 판결 (Perception and Rulings of Illegal Marriages by Local Officials during the Southern Song Period)

서지정보

· 발행기관 : 동양사학회
· 수록지 정보 : 동양사학연구 / 153호 / 43 ~ 85페이지
· 저자명 : 최해별

초록

Focusing on Qingmingji淸明集, a judicial report from Southern Song, this study selects cases that directly or indirectly mention conjugal relationships and fall under the category of cases that require local government officials’ handling because of the involvement of illegal elements in the matrimonial procedures, among marriage partners, or concerning the time when the marriage took place. Based on this, this study analyzes how the local officials perceived illegal marriages and pronounced judgment thereupon. It further analyzes the grounds on which their judgments were primarily based. Additionally, it examines the specific characteristics of the ideal conjugal relationship as envisioned and practiced by the local officials of Southern Song.
Qingmingji淸明集 contained 38 cases that mentioned conjugal relationships; of these, 10 mentioned illegal marriages. This shows that the local officials were quite sensitive to illegal marriages. Of the several illegal forms of marriage that were specified in the laws of Tang or early Song, the following cases were viewed as particularly problematic: illegality involved in the marriage procedure, marriages between relatives or couples with the same surname, and marriages of women who are still mourning their husbands. While matters pertaining to illegal marriage constitute the main issues of judicial precedents, most illegal marriages were “caught” while looking into other litigations, and thus, were frequently ancillary to them. While the local officials usually ordered illegally married couples to separate, it so happens that the laws of Tang and early Song, which stipulated the separation or correction of illegally married couples, remained effective till the Southern Song period. What is to be noted further is that the core of the local officials’ judgment lays not in pronouncing specific penalties to illegally married couples, but in determining if they continue married status or not. The officials usually separated such couples and were usually strict in this regard.
However, such couples were exempt from investigation, a departure from the Tang and early Song laws, if amnesty had been decreed multiple times. A regulation was added, which clearly stipulated that “those who were married for over 20 years shall not be separated.” While the local officials stressed on the legal regulations of illegal marriages in principle, they also revealed how difficult it was to enforce them when they transferred the cases to their proper jurisdiction.
Considering the judgments of multiple local officials on illegal marriages, they perhaps showed a common perception and treatment, rather than different views. The local officials of Southern Song, whose judgments are recorded in Qingmingji淸明集, stressed on legal marriages by adhering to the legal traditions handed down from Tang and separating illegally married couples to lay the foundation for a proper family. They emphasized on the legal principle and on putting the principle into practice when it came to the establishment of conjugal relationships and the foundations of families.

영어초록

Focusing on Qingmingji淸明集, a judicial report from Southern Song, this study selects cases that directly or indirectly mention conjugal relationships and fall under the category of cases that require local government officials’ handling because of the involvement of illegal elements in the matrimonial procedures, among marriage partners, or concerning the time when the marriage took place. Based on this, this study analyzes how the local officials perceived illegal marriages and pronounced judgment thereupon. It further analyzes the grounds on which their judgments were primarily based. Additionally, it examines the specific characteristics of the ideal conjugal relationship as envisioned and practiced by the local officials of Southern Song.
Qingmingji淸明集 contained 38 cases that mentioned conjugal relationships; of these, 10 mentioned illegal marriages. This shows that the local officials were quite sensitive to illegal marriages. Of the several illegal forms of marriage that were specified in the laws of Tang or early Song, the following cases were viewed as particularly problematic: illegality involved in the marriage procedure, marriages between relatives or couples with the same surname, and marriages of women who are still mourning their husbands. While matters pertaining to illegal marriage constitute the main issues of judicial precedents, most illegal marriages were “caught” while looking into other litigations, and thus, were frequently ancillary to them. While the local officials usually ordered illegally married couples to separate, it so happens that the laws of Tang and early Song, which stipulated the separation or correction of illegally married couples, remained effective till the Southern Song period. What is to be noted further is that the core of the local officials’ judgment lays not in pronouncing specific penalties to illegally married couples, but in determining if they continue married status or not. The officials usually separated such couples and were usually strict in this regard.
However, such couples were exempt from investigation, a departure from the Tang and early Song laws, if amnesty had been decreed multiple times. A regulation was added, which clearly stipulated that “those who were married for over 20 years shall not be separated.” While the local officials stressed on the legal regulations of illegal marriages in principle, they also revealed how difficult it was to enforce them when they transferred the cases to their proper jurisdiction.
Considering the judgments of multiple local officials on illegal marriages, they perhaps showed a common perception and treatment, rather than different views. The local officials of Southern Song, whose judgments are recorded in Qingmingji淸明集, stressed on legal marriages by adhering to the legal traditions handed down from Tang and separating illegally married couples to lay the foundation for a proper family. They emphasized on the legal principle and on putting the principle into practice when it came to the establishment of conjugal relationships and the foundations of families.

참고자료

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