南宋 시기 地方官의 姦罪 처리 원칙 ― 『청명집』의 판례를 중심으로 ― (Rulings on Sex Offense by Local Officials During the Southern Song Period — An Analysis of Precedents Recorded in Qingmingji(淸明集) —)

서지정보

· 발행기관 : 동양사학회
· 수록지 정보 : 동양사학연구 / 150호 / 83 ~ 126페이지
· 저자명 : 최해별

초록

During the Song dynasty, one of the main duties of newly appointed local officials after passing the Imperial Examinations(科擧) was holding trials. They put great effort in realizing “good government(Shanzheng 善政)”, and enforcing the law was a specific way of carrying out “Shanzheng”. This study aimed to observe the specific endeavors undertaken by the officials to realize “Shanzheng” as judges by analyzing their efforts in ruling trials on sex offense (sex-related crimes).
There are many studies on sex offense during the Song dynasty, but it is still necessary to scrutinize what was the main concern of the local officials in investigating cases regarding to sex offense and their emphasis in solving such issues. Furthermore, there is a tendency to focus on gender relationships in existing studies. Yet, there is room for reconsideration on whether “gender” was an important factor for the local officials handling sex offense at the time. Moreover, while other studies emphasized the gravity of the sentences in final rulings, comparing punishment regulations with actual executions, the present study sought to analyze the narratives of precedents in order to examine the main concerns of local officials.
There is a total of 31 cases that mentioned sex offense in Qingmingji; these can be divided into two categories of sex offense: those committed by unmarried men or women, and those concerned with women “with a husband(有夫者).” The categories are further divided to observe the characteristics of issues the officials gave particular attention to in terms of Literati(士人), clerks(胥吏), servants(人力), and women who committed sex offense.
The judges of the time gave rulings based on various principles depending on the given issue. Regarding rulings for the sex offense of unmarried men and women, they emphasized that “matrimony is formed under the Li(禮) and the wife is received through Yi(義)” and required marriage to be carried out in accordance with the Li, which goes above and beyond the punishment for sex offense. In cases wherein a husband is present, the officials stressed the law that “the wife’s crime will be pursued according to the will of the husband.” By setting forth the purpose of the aforementioned law as “resolving the case(治訟),” they pursued the idea of maintaining the marriage in question and preventing false accusations from others, instead of carrying out punishment. In this aspect, the ultimate goal of the officials was not to punish the sex offense itself, but to correct the marital order by appropriately using Li and laws; through this, they sought to achieve “Shanzheng” by practicing “reformation(敎化)” or “execution of the law(執法)” as local government officials.
A detailed analysis of the court cases written by the officials reveals their main interests and concerns, which are hard to simply discern from the gravity of punishment. For example, on issues related to pre-marital sex offense, the officials’ main subject of reformation was the people in the literati stratum. In addition, in clerk’s sex offense, they adhered closely to exemplary punishment and stressed on heavy punishment for sex offense committed by servants. As for a woman’s sex offense, regardless of her marital status, the local official was keener on determining the future direction of her designation rather than reforming her through Confucius values or punishing her according to law. It is possible to identify a relatively standardized ruling tendency according to case types, such as emphasis on reformation towards the Literati, exemplary punishments for clerks, heavy punishment towards servants’ sex offense, and interest in post-processing for women instead of punishment. In a way, such standardized tendencies are the outcomes of the officials’ contemplation on specific ways to pursuing the stability of society and to carry out “Shanzheng”. Through this, it is possible to take a closer look at one facet of the judicial culture shared among local officials during the Southern Song period.

영어초록

During the Song dynasty, one of the main duties of newly appointed local officials after passing the Imperial Examinations(科擧) was holding trials. They put great effort in realizing “good government(Shanzheng 善政)”, and enforcing the law was a specific way of carrying out “Shanzheng”. This study aimed to observe the specific endeavors undertaken by the officials to realize “Shanzheng” as judges by analyzing their efforts in ruling trials on sex offense (sex-related crimes).
There are many studies on sex offense during the Song dynasty, but it is still necessary to scrutinize what was the main concern of the local officials in investigating cases regarding to sex offense and their emphasis in solving such issues. Furthermore, there is a tendency to focus on gender relationships in existing studies. Yet, there is room for reconsideration on whether “gender” was an important factor for the local officials handling sex offense at the time. Moreover, while other studies emphasized the gravity of the sentences in final rulings, comparing punishment regulations with actual executions, the present study sought to analyze the narratives of precedents in order to examine the main concerns of local officials.
There is a total of 31 cases that mentioned sex offense in Qingmingji; these can be divided into two categories of sex offense: those committed by unmarried men or women, and those concerned with women “with a husband(有夫者).” The categories are further divided to observe the characteristics of issues the officials gave particular attention to in terms of Literati(士人), clerks(胥吏), servants(人力), and women who committed sex offense.
The judges of the time gave rulings based on various principles depending on the given issue. Regarding rulings for the sex offense of unmarried men and women, they emphasized that “matrimony is formed under the Li(禮) and the wife is received through Yi(義)” and required marriage to be carried out in accordance with the Li, which goes above and beyond the punishment for sex offense. In cases wherein a husband is present, the officials stressed the law that “the wife’s crime will be pursued according to the will of the husband.” By setting forth the purpose of the aforementioned law as “resolving the case(治訟),” they pursued the idea of maintaining the marriage in question and preventing false accusations from others, instead of carrying out punishment. In this aspect, the ultimate goal of the officials was not to punish the sex offense itself, but to correct the marital order by appropriately using Li and laws; through this, they sought to achieve “Shanzheng” by practicing “reformation(敎化)” or “execution of the law(執法)” as local government officials.
A detailed analysis of the court cases written by the officials reveals their main interests and concerns, which are hard to simply discern from the gravity of punishment. For example, on issues related to pre-marital sex offense, the officials’ main subject of reformation was the people in the literati stratum. In addition, in clerk’s sex offense, they adhered closely to exemplary punishment and stressed on heavy punishment for sex offense committed by servants. As for a woman’s sex offense, regardless of her marital status, the local official was keener on determining the future direction of her designation rather than reforming her through Confucius values or punishing her according to law. It is possible to identify a relatively standardized ruling tendency according to case types, such as emphasis on reformation towards the Literati, exemplary punishments for clerks, heavy punishment towards servants’ sex offense, and interest in post-processing for women instead of punishment. In a way, such standardized tendencies are the outcomes of the officials’ contemplation on specific ways to pursuing the stability of society and to carry out “Shanzheng”. Through this, it is possible to take a closer look at one facet of the judicial culture shared among local officials during the Southern Song period.

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