朝鮮時代における死𠛬囚の再審制度 --詳覆・三覆啓と淸朝の秋審--

Abstract

In Joseon Korea, only the king could pass a sentence of death and give the order for the execution of condemned criminals ; because of this, he would take great care in such legal proceedings. In particular, he would order the Board of Punishments to examine a case and the State Council to re-examine it before he approved a sentence of death. Moreover, he would order treble retrials before he approved the execution of condemned criminals. These proceedings were taken from the system described in the Confucian classics. The second of the treble retrials was just a screening, so substantial deliberation only occurred in the first and third retrials. Besides, it was not uncommon that the proceedings of treble retrials were completely skipped over. First, these proceedings were not followed in wartime cases. Second, trials for felons were conducted by the officials of the "three departments, " who acted on behalf of the king himself. Therefore, the king received full information from the "three departments, " so there was no need for him to re-examine a case. Finally, condemned criminals, for whose crimes immediate execution was prescribed in the penal code, were immediately executed in the late Joseon period, even though the procedure of the treble retrials was originally required by the law. The sovereignty of the king, however, was restricted in the case of "border crossings." Condemned criminals who had committed a crime in China and had been arrested in Korea were executed only after the emperor of the Qing dynasty approved their execution. Therefore, Joseon Korea could be called a dependent of China in terms of legal proceedings.