대명률(大明律)의 죄형법정주의 원칙(罪刑法定主義 原則)
A Study on the Principle of "nullum crimen, nulla poena sine Lege" in the Great Ming Code

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서울대학교 법학연구소
법학, Vol.49 No1 pp.110-158
당률소의대명률죄형법정주의인률비부the Commentary of Tang Code (Tangryulsoeui)the Penal Code of the Imperial Korea (Hyeongbuptaichun)the Great Ming Code (Taimyeounryul)부응위형법대전위령
In this paper, I researched the principle of “nullum crimen, nulla poena sine
lege” in the Great Ming Code[大明律] which was the general source of criminal
laws in the Chosun dynasty. In strict meaning, this principle is a historical result
of the modern western society. But it is a declaration of this principle that
detailed crimes and their punishments were provided in laws and codes. In
traditional China, this principle was a device to rule people equally prohibiting
public officials’ arbitrary punitive authority. So people were protected indirectly
by criminal laws.
In traditional China, this principle was stipulated in the Tang Code[唐律]
compiled in AD 653, and was maintained in the Great Ming Code promulgated
in 1397. In the Great Ming Code, this principle was manifested in the next
articles: Article 45 “Deciding Penalties in Accordance with Newly Promulgated
Code[斷罪依新頒律]”, and Article 439 “Citing the Code and the Commandment
in Deciding Penalties[斷罪引律令]”, Article 38 “Principles for Increasing and
Reducing Punishment[加減罪例]”. And then in Section 28 Judgment and
Imprisonment[斷獄] of the Great Ming Code, It was compelled for public
officials to obey the laws, if they did not so, they were punished by laws. So
this principle was observed firmly.
But there were exceptions in this principle. They are as follows: Article 46
“Deciding Cases without Specific Articles[斷罪無正條]” which is an analogy in
interpretation of criminal laws, and Article 409 “Violating the Commandment[違
令]” which is a punishment without noticing, Article 410 “Doing What Ought...
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College of Law/Law School (법과대학/대학원)The Law Research Institute (법학연구소) 법학법학 Volume 49, Number 1/4 (2008)
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