Aufbau und Verfall des Ius Commune in der ostasiatischen Rechtsgeschichte

Abstract

This article, originally drafted for the 37

th Conference of the Deutscher Rechtshistorikertag on September 5-9, 2008 in Passau/Germany, aims to survey the whole process of the formation and the deformation of the East Asian Common Law (ius commune). It has been gradually clear, that the concept of the common law becomes more important for the East Asian community in the formation. In the first part, the author tries to make a short introduction of the Chinese, Korean and Japanese legal histories to the Western audiences. He maintains that

the national legal histories of these three countries must be reviewed from the transnational perspective. In the second part, my Choi-Thesis on the East Asian Common Law is explained. It is composed of seven elements: 1) Codification, 2) Legal Confucianism, 3) Judicial Reasoning, 4) Community Compacts, 5) Traditional Jurisprudence, 6) Mediation and Reconciliation, 7) Sea Trade Law. In the third part, the formation of the jurisprudence during Tokugawa- Japanese

is elaborated. The author reveals the historical fact that it became a sort of common jurisprudence with the participations of the Chinese and Korean legal scholars

like Chu Shunshi (1600-82), Yi Chinyoung (1571-1633) and his son etc. In the fourth part, the author shows seven legal cases, which arose between Tokugawa Japan and the Joseon Kingdom. He arues that these two states could succeed in finding the solution through their common legal reasoning. In the fifth part, the fall of East Asian order is explained as the process of the reception (or imposition) of the Western law in East Asia. The Western judicial counselors were invited to these countries to modernize (westernize) the traditional common law. Good or bad, the legal integration is necessary for the formation of the East Asian community. For this purpose, the concept of the East Asian common law is necessarily important. All jurists in this region should keep in mind this task for the better furure. [본 논문은 독일 법사학자대회(Deutscher Rechtshistorikertag)에서의 기조강연의

하나로 작성되었는데, 동아시아보통법(ostasiatisches ius commune)이란 관점에서 중국,

한국, 일본법사를 개관하면서, 어떻게 보통법이 형성되었으며, 서양법의 수용과 함께

몰락되었는지를 서술한다. 그러면서 오늘날 동아시아공동체(East Asian Community)

의 건설을 위해 유럽에서처럼 보통법의 개념이 새롭게 중요시됨을 지적하려 한다.]