(8) 인도주의적 형법제도

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Click Into the Hermit Kingdom (8)

Choson's Criminal Code Geared Up to Humanitarian Purposes


By Yang Sung-jin


Kwon Young-hae, the former director of the Agency for National Security Planning (NSP), stabbed himself with a cutter blade during questioning on Friday over his alleged role in a smear campaign to portray Kim Dae-jung as a communist sympathizer.


Yet, public doubts over the incident are snowballing. Right after Kwon underwent surgery, Kwon's eldest daughter raised questions about the investigation, claiming that the prosecution's explanation about her father's suicide attempt is suspicious.


It is a pity that the prosecution's credibility is still in doubt. Perhaps, people still remember the days when the prosecution interrogation office often turned into a site for torturing dissidents, some of whom were killed in the process.


Tortuous though it may sound, the acts of torturing suspects beyond the level of interrogation has long been practiced regardless of region and time. 


The Choson Dynasty is no exception. For instance, the CD-ROM Annals of the Choson Dynasty pinpoints an extreme case back in 1489 when some 70 suspects of robbers in northwestern province were arrested and abused during the questioning phase.


Official named Lee Jong-ho reported to the king on the torture case: "Of about 70 robbers, 15 are dead, two are fatally injured. Those who suffered serious wounds on their bodies are countless.''


King Songjong ordered "Sahonbu'' (Office of the Inspector-General) to further inquire into the true state of things, chiding the recklessness of the officials favoring tortures.


Five Punishments


The Choson Dynasty had roughly five kinds of punishments administered to the convicted criminals, based upon the Ming China's legal system.


First, and lightest punishment was "tae-hyong,'' slapping the convict with a stick made of an ash tree 10-50 times upon degrees of the crime. 


Second, "chang-hyong'' is one step severer than ``tae-hyong''  in that 60-100 times slapping were done under the category.


Third, "to-hyong'' is similar to today's imprisonment. In this case, prisoners were forced to work in state-owned workplaces such as iron mill.


Fourth, "yu-hyong'' is an exile. In China, the exile broke down into three different ones: 2,000 ri, 2,500 ri and 3,000 ri (one ri equals 393 meter). 


Since the Korean peninsula cannot afford more than 2,000 ri (roughly 786 kilometer), the exact enforcement of "yu-hyong'' was impossible. Instead, deporting all the family members of a prisoner into the northeastern borderline and confining one's residence in a certain area were adopted.  


Royal family members and high-ranking officials were exiled into a remote place and isolated from people, often surrounded by thorny trees.


The last one is death penalty, whose methods include hanging, beheading and dismemberment.


In addition to these five methods, there were other kinds of punishments, many of which might have been viewed as human rights violation by today's Amnesty International.


For instance, "muk-hyong'' is engraving ink onto one's face, whose letters indicate the person is a criminal. Similarly, cutting off the nose or the heel were practiced in order to leave an indelible criminal mark on the convict's body.


"It must be noted that these cruel punishments were not put into practice as often as today's people imagine. Rather, the enforcement of the harsh punishment can be seen as symbolic in order to give a strong warning to the people about specific crimes Choson people thought harmful to society,'' Lee Nam-hee, senior researcher of the Korean Studies Database Institute.


Humanitarian Consideration


The CD-ROM Annals also show numerous records about the government announcement prohibiting the enforcement of punishment on special occasions such as birthdays of king and queen, and coronation ceremony. 


For instance, an article dated in October, 1450, announces the prohibition of whipping on the punishment-free days. "This kind of measure played the role of restricting and reducing the days when the convict could be punished, which represents the Choson's humanitarian consideration for the prisoner,'' Lee added. On the day when the death penalty was executed, all the governmental agencies in Seoul made it a rule to cease working to show condolences to the dead.


In a document dated in September, 1520, an official pointed out the violation of the rule specifying the cancellation of works and events on the execution day: "This month, a convict guilty of breaking the prison was put to death. Even though the condemned criminals die for their crimes, the king should reproach himself about the executed. Yet, the rituals and music concerning the Emperor were performed as usually, which is totally wrong.''


Following the document is King Chungchong's formal acknowledgement about the mistake concerning the death penalty. In addition, the Choson's law designated specific days as inappropriate to execute the death row inmates. According to the articles in 1472, the government classified 10 days of a month inadmissible for the execution: 1, 8, 14, 15, 18, 23,24, 28, 29 and 30.


"The general notion here was based upon Taoism, in which the cosmic power was believed to come down to earth on these dates of a month to inspect human's wrongdoing. Therefore, it was feared to execute people on these delicate dates,'' Lee explained.


Another interesting twist of death penalty was related to the traditional notion of the Choson Dynasty, emphasizing the filial piety, especially on the part on the only son. In 1415, an official named Chang Dok-sang was caught stealing the seal of the governmental agency, which led to the death penalty. In a petition to the king, Chang's mother urged the government to save him because he is her only son.


On the issue, King Taejong stated, "There is a saying that even murderer should be saved, if the person is only son, so that he can serve the parents. Therefore, I want to know what others think about the option saving Chang for his parents.''


The officials agreed to King's idea of releasing Chang, and the record that followed show the practice of saving the only son from execution was put into a law.


Tradition Cuts Both Ways


In contrast, if the person in question violated the traditional value of society, the law was stricter than ever. When King Sejong announced reducing the forbidden clauses, he excluded certain crimes related to the Choson's social norms such as impiety to parents, adultery and slaughtering cows and horses without permission, (both of which were the most important items for the farmers of the day).


Interesting fact reflecting the Choson society was the legal specification favoring women, whose status was much lower than men at large. During the Choson period, inmates were forced to wear a long sword upon their necks to prevent them from breaking the prison. But women were exempted from this clause. In addition, women were not put into prison except for those who committed the special crimes such as adultery.


But it seems that the government regulations did not work all the time. King Songjong issued a special directive to punish those officials arresting and putting women to prison without due reason.


In the earlier period of Choson with its social and legal system still to be refined, there were cases in which prisoners were whipped to death even for minor misconduct, due to the official's abusive treatment.


King Sejong ordered a cautious enforcement of whipping punishment in 1435: "Whipping is limited to 50 times at maximum, but some officials are violating the rule, which put some minor offenders to death. It goes against the principle of placing less severe punishment in case the degree of crime is not decided. Excessive whipping, therefore, should be avoided.''


It was King Yongjo (reign: 1724-1776) who laid the foundation for a sophisticated criminal law while abolishing cruel torture and harsh punishments.


On the occasion of completing the revised version of the national legal code in 1740, King Yongjo remarked, "The kings who made the nation prosper, respected and practiced generous laws. In contrast, those who favored harsh law perished, which should be considered when enacting these new laws.''


King Yongjo also urged the related officials to be impartial in sentencing and not to resort to torture in 1755. King Yongjo's belief for generous law was illustrated as early as his inauguration year, 1725 when he abolished "absul-hyong,'' one of the most cruel tortures of the day.


"Absul-hyong'' or pressing heavy woods on the prisoner's shins, was mainly imposed upon traitors, but was criticized as inhuman and unnecessarily harsh.


In 1732, King Yongjo also wiped out notorious was "juri,'' or twisting the wooden sticks between the legs of a prisoner relentlessly, whose aftereffect was enormous.


Next year, the reformed-minded king also eradicated another torture named "nanjang'' which means beating up thieves with sticks as punishment. Also implemented in 1771 by King Yongjo was the law 

prohibiting the interrogators from binding the suspects. Although King Yongjo made great efforts, not all the officials followed his direction. In an article, sagwan (chroniclers) deplored that the officials in charge of penal code did not respect the king's order faithfully, thus threatening the public with torture.


Thefts for Food


The most troublesome crime during the Choson Dynasty was theft. "At that time, people were relatively poor, so more crimes were related to the theft to survive,'' researcher Lee explained.


Under the agrarian society, however, theft was the most abominable crime imaginable; therefore, severest punishment was imposed upon the thieves, often including engraving ink onto the forehead of the convict. 


However, despite the continued efforts through strict punishments, the theft did not disappear easily. Official named Chong Sae-chang opposed to King Chungjong's order to strengthen the penalty against theft: "Stealing is mostly out of poverty. People turn into thefts only because they are greatly suffering from starvation and cold, due to the bad harvest in recent years.


Since the nation agreed with the austerity measures prescribed by the International Monetary Fund in the wake of the financial turmoil last November, it is reported that the so-called petty crimes such as shoplifting and theft are on the rise, reflecting plunging living standard of the public.


Perhaps, today's policymakers can get a clue about such deplorable situation from the greatest king of Hermit Kingdom. In 1444, King Sejong remarked concerning the report indicating increasing habitual thieves: "I heard there are more thieves. I feel greatly ashamed of myself because those crimes are committed only because I have failed to provide decent living conditions to the people.''


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