조선·도쿠가와시대의 법률교류사

Abstract

This paper aims to investigate the legal exchanges between the late Chos？n dynasty since 1592 and the Tokugawa Bakuhu(1600-1868). From the perspective of East Asian Common Law, the present writer, myself, tries to find out the commonness and see the interactions of two traditional countries.

The experiences and the observations of Korean envoys, deployed to Edo Japan from 1607 to 1811, were written and published in the series of Haeheng Chongje in 12 volumes. These documents reveal that the Korean envoys did not intend to learn the Japanese law. On the contrary, they underestimated and despised the Japanese customs and institutions.

And, during the Toyotomi Hideyoshis Invasion to Chos？n(l592-97), many Koreans were kidnapped to Japan. Among these captivates, scholars like Kang Hang(1567-1618), Jinyong Lee(1571-1682) and his son Maegye Lee played an important role for teaching the Ming and Chos？ns laws to the Japanese intellectuals.

Zunanori Maeda(1643-1724) and Hakuseki Arai(1657-1725) were especially eager to study the Chinese and Korean laws. Tokai Ito(1670-1736), the son of the famous Neo-Confucianist Jinsai Ito(1627-1705) wrote a book Chos？n Kwanjikgo(Korean Official Institutions, 1711) on the basis of Korean national Code Kyungkuk Taejeon(Code for National Governance, 1518). Hoshu Amenomori(1668-1755) wrote two books concerning Korea; Chos？n pungsokgo(On Korean Customs, 1722) and Kyorin Chesong(Diplomatic Manual, 1723). He emphasized the importance of the sincerity(Songsin) for the Korean-Japanese diplomatic relations.

Korean scholar of Practical School(Silhak) Yagyong Chung(1762-1836) read the books of Jinsai Ito and Sorai Ogyu. He said that Korean did not need to worry about Japan any more, because the Japanese also seemed to be rightly enlightened by the Confucian learning.

The Korean National Code Kyongkuk Taejeon(1518) was introduced to Japan and studied and partly published by the Japanese scholar Tokai Ito.

The Commentaries of Ming Code published in Korea with the name of Tae-Myongyul Chikhae(Direct Commentary of Great Ming Code) and Tae-Myongyul Kanghae(Commentaries of Great Ming-Code) were also imported to Japan. Sorai Ogyu wrote the Minrits Kokujikai(Ming Code in Mother Tongue). To compare these commentaries, there are many similarities based on East Asian common law. Some Korean books concerning the judicial procedure were imported and preserved till now at the Hosa Archives in Nagoya and Naigaku Archives in Tokyo. They are Sasong Ryuchi(Procedural Manuals) and Taejeon Sasong Ryuchi(Procedural Manuals from the Code).

This study is basically a general survey of Korean-Japanese interactions from the perspective of law. If we develop it further and deeper, we could apply it into each legal field like consitutional law, administrative laws, civil and commercial laws and criminal law. This paper could be the general basis of these future researches by the specialists of each positive legal field.