전제지배와 訟師의 향방 ― 宋代 르네상스 再考 ― (Despotism and the Destiny of the Chinese Lawyers: Reconsideration on the Theory of the Chinese Renaissance)

서지정보

· 발행기관 : 동양사학회
· 수록지 정보 : 동양사학연구 / 123호 / 121 ~ 150페이지
· 저자명 : 박영철

초록

This paper is for a comparative historical study to elucidate the legal structure and legal thought of the Chinese during the pre-modern era focusing the Chinese lawyer named ‘songshi(litigation master)’ which presented itself in the Song era world-widely considered as the Chinese renaissance period in the circle of sinology. Being a parasitic status in the Chinese bureaucratic system, songshi could not be an elite class like the Western lawyers. In collusion with the petty-officials(xuli) who are in the similar status with the songshis in the Chinese bureaucratic system, songshis as Chinese lawyers in the legal actions seem to have a considerable role in making the Chinese ‘litigious society’. But the Chinese ‘litigious society’ cannot be equivalent to the Western litigious society as the Chinese Songshi cannot be equivalent to the Western lawyer. Being comparatively studied, Western lawyer's guild is a glorious powerful open elite guild which has made an indispensable role in making western modern state, but the Chinese songshi's guild is an unglorious violent secret parasitic guild which has always been chased by the government as an illegal dangerous group.
What made the Chinese lawyer as such as illegal is the Chinese despotic rulership and the Confucian moral idea of rule in which Chinese rulership rooted. In the Confucian moral rulership legal actions are in the state of contradiction. In principle they are open and everyone is free to go to act. But in reality not everybody is free to go to court, so someone is needed for one to go to court. Chinese law has kept this law for the people who are in need of someone to help one to go to court as early as Tang law. But the Confucian moral rulership historically being in the state of contradiction at last submitted to the reality of Chinese ‘litigious society’. Emperor Qianlong made the Tang law illegal in 1776. At this point it can be said more clearly that the Chinese ‘litigious society’ is not equivalent to the Western.
As is shown by the edict of Emperor Dowager, Songshi was one of three evils in the Chinese bureaucratic society. This is to show that Songshi which was to be the fine fruit of the Chinese Renaissance could not become a good profession as Western lawyers which was also the fine fruit of Western Renaissance. In this respect the Chinese Song Renaissance Studies which has it's own long history is need to be reconsidered.

영어초록

This paper is for a comparative historical study to elucidate the legal structure and legal thought of the Chinese during the pre-modern era focusing the Chinese lawyer named ‘songshi(litigation master)’ which presented itself in the Song era world-widely considered as the Chinese renaissance period in the circle of sinology. Being a parasitic status in the Chinese bureaucratic system, songshi could not be an elite class like the Western lawyers. In collusion with the petty-officials(xuli) who are in the similar status with the songshis in the Chinese bureaucratic system, songshis as Chinese lawyers in the legal actions seem to have a considerable role in making the Chinese ‘litigious society’. But the Chinese ‘litigious society’ cannot be equivalent to the Western litigious society as the Chinese Songshi cannot be equivalent to the Western lawyer. Being comparatively studied, Western lawyer's guild is a glorious powerful open elite guild which has made an indispensable role in making western modern state, but the Chinese songshi's guild is an unglorious violent secret parasitic guild which has always been chased by the government as an illegal dangerous group.
What made the Chinese lawyer as such as illegal is the Chinese despotic rulership and the Confucian moral idea of rule in which Chinese rulership rooted. In the Confucian moral rulership legal actions are in the state of contradiction. In principle they are open and everyone is free to go to act. But in reality not everybody is free to go to court, so someone is needed for one to go to court. Chinese law has kept this law for the people who are in need of someone to help one to go to court as early as Tang law. But the Confucian moral rulership historically being in the state of contradiction at last submitted to the reality of Chinese ‘litigious society’. Emperor Qianlong made the Tang law illegal in 1776. At this point it can be said more clearly that the Chinese ‘litigious society’ is not equivalent to the Western.
As is shown by the edict of Emperor Dowager, Songshi was one of three evils in the Chinese bureaucratic society. This is to show that Songshi which was to be the fine fruit of the Chinese Renaissance could not become a good profession as Western lawyers which was also the fine fruit of Western Renaissance. In this respect the Chinese Song Renaissance Studies which has it's own long history is need to be reconsidered.

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