(9) The Ups and Downs of the Choson Legal System

By Yang Sung-jin

The “fair and square” group of 15 judges at the Uijongbu Court reportedly took bribes from the local lawyers in return for favors. In response, the “just and impartial” prosecution announced it will not indict them on the grounds that the money exchanged does not amount to the level of bribery.

Fishy or not, a new legal principle has emerged in Korea: Judges, prosecutors and lawyers are excluded from the “universal” application of the law, while punishing the poor and powerless, in the name of “legal justice.”

The legal justice of the Choson Dynasty is worth a closer look because it has direct and indirect relations with today’s legal system that is tainted with the corruption scandal. The CD-ROM Annals of the Choson Dynasty reveals a vast array of articles related to both the negative and positive applications of law.

One article dated 1589 details a murder case in which a literati named Yun Baek-won died after eating with a guest at his home. Yun Dok-kyong, son of the dead literati’s concubine, suspected the lawful wife’s daughter named “Kaemichi.”

Yun Dok-kyong filed a petition pointing Kaemichi as the culprit to the Sahonbu (Office of the Inspector-General). However, Kaemichi accused Yun and his two brothers of poisoning the food in order to kill their father.

The murder of a parent, under the strict Confucian moral standard, was subject to the severest penalty. Therefore, the investigation was conducted by a joint team comprising Sahonbu, Uijongbu (State Council) and Uikumbu (Royal Inspector’s Office). Unfortunately, the investigation resulted in the death of Kaemichi due to severe torture, leaving the case unresolved.

Related articles of the CD-ROM Annals provide background information on the incident. Even before the murder, the relations between Kaemichi and the three brothers had soured. The reason was that the lawful daughter had lost her right to the inheritance, while the three brothers by a concubine exclusively owned the property of the house. The mutual hostilities involving the inheritance culminated in the heated battle over the murder.

Case Revisited

Interestingly, the unresolved case returned to the public focus over 10 years after the investigation was wrapped up. In 1602, Kaemichi’s son filed a petition calling for the re-investigation of the case to unearth the truth.

Again, the joint investigation team questioned the three brothers. This time, they secured a confession from the suspects, proving they had orchestrated the murder.

However, the three brothers were released despite their admission of guilt. The king then duly inquired about the unusual leniency exercised: “The three brothers’ false accusation resulted in Kaemichi’s death, which obviously amounts to capital punishment. But why they were released?”

The king’s question went unanswered. Ten years later, another article dated July 3, 1612, comments upon the controversial murder and acquittal case: “People believe Kaemichi was wrongly killed during questioning because there was no hard evidence confirming her crime. Now the three brothers have also died. The king’s attention in favor of the dead Kaemichi is due to the fact that she had relations with the royal family.”

“It is interesting to see a murder case being discussed and reviewed by the Choson chroniclers even 20 years after the incident. Yet, the related articles also shed some light on the prevalent collusion between the high-ranking officials and the law enforcement officers, distorting the legal system,” said Lee Nam-hee, senior researcher of the Korean Studies Database Institute.

Korean Teflon

Another controversial murder case reflects the omnipotent political power getting in the way of the fair enforcement of legal procedure. On Jan. 11, 1478, a dead body bearing numerous knife wounds was found in Seoul. The investigation looked into the case, with no visible success.

The king issued a public announcement promising a reward for those who provided a clue to the case.

Late in the month, the investigation institutions received an anonymous letter suggesting a person named “Kawoe” knew the dead woman. Kawoe was immediately called upon and questioned by interrogators. He confessed that the murdered woman was a former slave of Changwongun, a son by a concubine of late King Sejo (reign: 1455-1468).

The investigation also found that Changwongun had tried to rape the murdered woman. To prove the case against the royal family member, the investigators asked Changwongun to turn in the entire list of slaves he owned, which he strongly refused.

Facing the controversial case involving the royalty, the Choson administration was on high alert. Reported on Changwongun’s refusal to comply with the investigation, King Songjong ordered the list of slaves to be brought to the court.

Finally, the investigators secured the confession from Changwongun’s three slaves, confirming the suspicion that the royalty had masterminded the murder.

For all the evidence and confession, Changwongun denied the charge vehemently. He said, “This incident is fabricated by my servants fearing torture. I did not commit such a crime.”

Even with strong evidence, including blood being found in Changwongun’s house, the prosecution hesitated in formally indicting a member of the royal family.

An article dated Feb. 28 shows that King Songjong delayed the imprisonment of the royalty: “Changwongun told me he was wrongly accused. I found the investigation report has no hard evidence. If the woman was killed by a knife, it should be somewhere. Send people to search for the knife.”

On March 11, the investigation concluded that Changwongun was the murderer and asked for the king to deliver a sentence. Under strong pressure, the king ordered the disgraced royal member to be punished.

But two days later, the king mitigated the penalty, asking the officials to consider Changwongun’s royal status.

Eventually, no punishment was placed on the convicted murderer despite the strong opposition of officials, calling for the fair and universal application of law.

Choson’s Solomon

King Chongjo (reign: 1776-1800) is respected as one of the best judges during the Choson Dynasty. The much-admired king tried to set up a fairer legal foundation with his extensive knowledge about legal cases.

One of the famous rulings by King Chongjo is recorded in an article dated in 1790, describing a murder case. A married woman named Eunae, living in southwestern Cholla province, was arrested on charges of murdering her neighbor with a knife.

When questioned about the murder, Eunae confessed her crime without showing any regret, “Choe Chong-ryon, living next to my house, spread the false rumor that he slept with me in the hope of marrying me. As I married another man, Choe and his friend Ahn Cho-e openly spread the bad word about me. I was so angry that I went to Ahn’s house to kill her. I even tried to kill Choe but I couldn’t, because of his mother’s interference. I implore the government to put Choe to death, as well.”

Reading the bold and imposing testimony of Eunae, King Chongjo asked the prosecutors’ opinion. As expected, the officials demanded the death penalty. But the king had a different idea.

King Chongjo said, “Eunae is aged less than 18, but she was wrongly humiliated concerning her virginity. Therefore, it is understandable that she tried to prove the truth, risking her own life. Moreover, she talked about her reason quite frankly, even though she knew it could lead to the death penalty.

“Decades ago, the same incident happened in Hwanghae-do. But the local governor forgave and released the convict. It is said that when the woman was released, countless matchmakers rushed to get her. Since Eunae’s case is in the same category, I grant her to be released.”

The government officials that had called for capital punishment, helplessly backed off from their position because the king’s generosity was based on his extensive knowledge about legal cases, plus his prudent perspective.

The king did not stop there. He considered the case late into the night and the next day ordered the officials to get a document from Eunae, promising not to attack Choe again: “I released Eunae in honor of her courage. But she is likely to seek revenge against Choe Chong-ryon in the future because of her strong character. Which means, by releasing Eunae, we may put another person’s life in danger, which goes against the spirit of law. Therefore, I order the related office to get a confirmation from Eunae, promising not to attack Choe.”

“Though King Chongjo’s rulings were limited to the moral standard of the Choson Dynasty, he is a sensible judge, interpreting the legal code in a flexible way to ensure more fairness,” researcher Lee explained.

King Chongjo’s respectable rulings could serve as a useful reminder for the 15 Uijongbu judges, who are “strict” for others’ misconduct, yet mysteriously “flexible” about their own.

 

(8) Penalties Were Harsh in Choson Period

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.”

(7) Choson Had Humanitarian Legal System

By Yang Sung-jin

To celebrate the inauguration of President Kim Dae-jung, the government granted special amnesty affecting 5.52 million people last Friday, the biggest ever in the country’s 50-year constitutional history.

By freeing citizens from their past errors, the conciliatory measure is expected to generate social harmony and reconciliation, both of which are much needed to cope with the current economic crisis.

The CD-ROM Annals of the Choson Dynasty also shows numerous cases of pardons conducted by the kings, whose effects were not dissimilar to today’s amnesty orchestrated by the president.

But pardon is only part of the sophisticated legal system of Choson, based firmly on the belief that humanitarian generosity is more effective than the harsh application of the law in governing the society.

Representing the big picture of the Choson’s legal system is “Kyongguk Taejon” (National Code), a statutory code defining the structure and functioning of Choson’s government.

Intriguing is the fact that the centerpiece of the Choson’s legal system was promulgated in the second year of Songjong’s reign in 1471, about 80 years after the foundation of the nation.

“The much delayed compilation of the legal code is partly because the Choson referred as a model to Ming China’s social system including its advanced criminal law. It is also because the Choson maintained pro-Ming diplomatic policy from the outset,” said Lee Nam-hee, senior researcher of the Korean Studies Database Institute.

Whatever the reason, it remains true that Kyongguk Taejon represented the first complete compilation of the legal codes of the day. Moreover, the administrative law’s implications were are greater than generally imagined.

“Choson officials classified the existence of Kyongguk Taejon as the top secret especially to Ming China. They made much efforts to hide it from Ming China’s diplomats,” Lee explained.

The secret was kept, only for the time being. According to the CD-ROM Annals, a couple of Ming China’s generals, dispatched to support Choson army against Japan during the 1592 Hideyoshi Invasion, were staying in Chongju. They happened to find Kyongguk Taejon, which caused much concern in the royal court in Choson.

Official Kim Wu-ong states, “Ming generals got angered about our excuse for not showing Kyongguk Taejon. Calling our excuse as deception, they are now demanding Kyongguk Taejon through translators.”

Though King Sonjo and the high-ranking officials made utmost efforts not to show it to China, Ming General named “Wonjusa” read Kyongguk Taejon in 1953.

Emergency meetings were held in order to deal with the situation while trying to come up with plausible excuse not to turn in the legal code to Ming China. In addition, two officials involved in the disclosure faced punishment.

But why did the Choson officials try to hide Kyongguk Taejon? The Annals recorded mainly three reasons for the confidentiality of Kyongguk Taejon to China. First, it contains the official titles of deceased kings, whose level amounts to the emperor of Ming China. Second, there is a passage indicating Choson has sent diplomats to Japan, which Ming China prohibited. Third, included in the code is the clause banning the circulation of gold and silver, which is against Ming China’s demand.

“This passage is very important. It shows that pro-Ming Choson managed to use the titles of deceased kings independently, once monopolized by China. Also, it means that Choson maintained its own diplomatic relations with Japan and banned the use of gold to keep it from China’s demand for tribute,” Lee said.

Knowledge is ‘Legal’ Power

Apart from political implications of Kyongguk Taejon, it must be noted that the legal principle of the Choson Dynasty is humanitarian, even by today’s standard.

A surprising case in point is the government’s legal education targeting the public when a new law was enacted. A document dated in May 1415 includes the passage from today’s Justice Ministry: “It is deplorable that the ignorant public fall into a crime mainly because they do not know the law. The officials in charge of enforcing the law should teach it to public through lecture.”

Named “Dokbopryong” (reading legal statutes), the system greatly helped the people to understand the law, which in turn prevented the crimes resulted from the ignorance, Lee explained.

Yet teaching the jargon-jammed legal codes to the public was not easy. In 1439, King Sejong stated, “It is really difficult to make the public to know all the passages of the statutes. But if we select the 20-something points related to the capital punishment and publicize them to people, we will be able to reduce the number of death sentences.”

Equally important is the bail system. King Taejong ordered the officials to set up a bail system in an effort to encourage the use of newly launched paper money in 1411. But the officials desperately opposed it, citing the possibility that sagwan (historiographer) will point it out as an unfair system in which a sinner is released without being duly punished.

Yet King Taejong did not cave in, and instead stated, “Governing the people through harsh punishment cannot be compared with the slight penalties encouraging them to correct themselves. There is nothing to be ashamed of [in implementing bail system] even though sagwan will record it.”

King Sejong was particularly worried about the abuse of harsh punishment. In 1422, three men were arrested on the charges of setting fire at the ammunition storehouse. In the interrogating process, one man was killed by relentless torture, the other two severely injured. Yet, it turned out that three were innocent.

“The dead cannot be revived, severed body parts cannot be restored. Therefore, it’s useless to regret what’s already happened. This is what I am worried about day and night. Officials should remember this tragic incident for securing fairness, avoiding prejudice. Don’t be pleased with quick confession, don’t wish for a quick imprisonment. Search for evidence from all directions possible over and over again so that no one is falsely accused.”

Appeal, Appeal, Appeal

To prevent a false accusation, there was a highly advanced system named “Sambokbop” (three time appeal law), which applied only to the cases involving capital punishment. The record about today’s appeal system is found in a document dated in 1392 in which today’s Justice Ministry pointed out the necessity of implementing “Sambokbop” to secure a fairer trial.

“Throughout the Choson Dynasty, only the king could decide the capital punishment. Except for special cases, most defendants were given the chances to appeal three times. If proven guilty, the execution was carried out at the end of the year,” Lee said.

The minimum safety mechanism for human rights, however, was repealed temporarily due to the political feuding. According to the CD-ROM Annals, official named Kim An-ro mounted a political attack on his opposition faction, through which he abolished the Sambokbop in order to execute his enemies en masse. In 1539, the king granted law being re-enacted at the request of the officials.

“In fact, Sambokbop is a symbol of the king’s sympathy for the public. Placed in the same context is the king’s special amnesty timed with royal occasions such as coronation ceremony or birthday,” Lee said.

In addition, special pardons affecting minor prisoners were issued when the nation was suffering from natural disasters such as drought and famine.

“The general notion of the day was that the natural disasters are due to the king’s lack of virtue and the people’s rising resentment. Pardon was believed to resolve such conflict,” Lee added.

For all the positive effects of pardon, it remains to be seen whether last week’s special amnesty by President Kim Dae-jung will meet public expectations. A passage of the Annals dated in January, 1547, sheds light on the true meaning of pardon: “There is a old saying that wise king issues fewer, yet effective pardons. In contrast, social disorder often results in frequent pardons, which are likely to be only perfunctory.”