Joseon criminal law sought legal stability by defining crimes and punishments through codified laws, but it was not possible to define all matters, which could lead to legal flaws. To compensate for this, there was an effort to use inyulbibu to apply the closest legal text and fill in legal gaps. As a result, Joseon criminal law operated on a principle similar to that of criminal legalism, but with the potential for arbitrary inferences.

Introduction

Criminal statutoryism is the principle that criminal behavior and how to punish it should be defined in written law in advance. It is an important legal principle for ensuring legal stability and predictability, preventing arbitrary judgment by judges and contributing to the rule of law. While it is considered an essential principle in modern legal systems, it is interesting to see how it was applied in historical legal systems. In particular, it is interesting to discuss how the principle was implemented in criminal law during the Joseon Dynasty. In this article, we will analyze from different perspectives whether criminal legalism can be found in Joseon criminal law.

Characteristics of Joseon criminal law

Joseon criminal law was a codified system that set out standards for punishment. The Joseon criminal law followed a formalistic format in which the type of crime, the status of the offender or victim, etc. were separately categorized and the sentence was determined accordingly. It can be said that the same principle of criminal legalism operated in that it prevented judges from being influenced by external pressures and prevented judges from making arbitrary judgments to determine whether a crime was committed.
According to the Dae Myeong-ryul’s ‘Danjusin Yuljeongjo’, which was applied as the general law of criminal law during the Joseon Dynasty, the law must be followed when determining the guilt or punishment. These regulations were intended to promote legal stability and eliminate arbitrary judgment, but since it was not possible to enumerate every case, flaws in the law could occur. To compensate for this, the Joseon Dynasty had a concept called inulbibu (引律比附).

Inyulbibu and criminal legalism

The concept of inulbibu means that since the law cannot regulate all things, if there is no law to determine a crime, the nearest one to the law is used to determine the crime by adding what to add and subtracting what to subtract, and then report it to the hyungjo, who reports it to the king for punishment. This shows an effort to prevent arbitrary judgment. However, this approach left room for arbitrary inferences to be made, which is the basis for criticism that Joseon criminal law violated criminal legalism.
On the other hand, there is also a view that inefficiency was inevitable in Joseon criminal law. It is a special method of interpretation that abstracts concrete laws to overcome the limitations of formalism. It can be seen as an attempt to expand the scope of the law and fill legal gaps through this method of interpretation.

Controversies and modern implications

There are two schools of thought: those who believe that criminal legalism can be found in Joseon-era criminal law, and those who do not. This debate has important implications for understanding how legal principles have been applied historically. It helps us understand the legal mindset and institutions of the Joseon Dynasty, especially when compared to the modern rule of law.
Joseon criminal law shows that there was an effort to pursue legal stability through formalism and ratio ratio ratio. This is similar to the various methods of interpretation used in modern legal systems to fill in legal gaps. As such, Joseon criminal law can help us gain a deeper understanding of the historical development of legal principles and their implications.

Conclusion

Whether the principle of criminal legalism can be found in Joseon criminal law can be discussed from different perspectives. The Joseon legal system sought legal stability and predictability based on written law, and there were efforts to fill legal gaps through interpretive methods such as inyulbibu. In this respect, Joseon criminal law provides important historical implications when compared to modern legal systems. By studying these historical legal systems, we can contribute to the development of modern legal systems.