Earticle

초록

영어

This article aims to make a textual analysis for the Tangyin bishi (Parallel cases under the pear tree), one of the earliest Chinese legal literature or case history, from the perspective of “law and literature.” The “law and literature” movement sheds light on the close interrelationship between law and literature. In defining the term “legal literature”, there might be two different approaches: “law in literature” on the one hand and “law as literature” on the other. “Law as literature”, in particular, reflects an increasing tendency to consider law as a “text” that needs literary or cultural interpretations. This approach, however, makes us rethink the Confucian legal tradition that was founded on humanistic concerns. Although the negative understanding of the Confucian legal tradition has been prevalent in modern jurisprudence, the very tradition may not be completely disconnected from contemporary legal culture in that it endeavored to overcome the gap between the law and social reality by consistently resisting the abstract, universal, and absolute application of the law. As a matter of fact, a new tendency to highlight humanistic concerns and pay attention to hermeneutic approaches in contemporary jurisprudence has resulted from the practical intention to resolve the gap between legal rules and legal realities. The Tang'in bishi is remarkable in that it explored the interrelationship between law and literature. More often than not, the text has been misunderstood as a classical narrative lacking in narrativity or underestimated as a legal text lacking in specialist knowledge. However, the Tangyin bishi should be reconsidered as a truly unique text on the ground that it attempted at constructing the paradigm of legal rationality or public rationality with literary patterns and representing the ideal of a Confucian judge in a wide variety of case examples. This article sheds light on the representation of “Confucian justice” in the Tangyin bishi, which attempts at crossing the thin line between law and literature, rationality and emotion, and ideal and practice. The text should not be taken as a simple moral fable. For it provides various case examples for practical legal reasoning.

목차

Ⅰ. 머리말 ― 법문학으로서의 《당음비사》
 Ⅱ. 《당음비사》의 구조 ― 문학적 패턴과 법규범
 Ⅲ. 팥배나무 아래의 재판관 ― 유교적 정의를 찾아서
 Ⅳ. 맺음말
 參考文獻
 Abstract

키워드

저자

• 朴昭賢 [ 박소현 | 성균관대학교 동아시아학술원 조교수. ]

참고문헌

발행기관

간행물

표지보기 관심저널 등록

• 간행물명

  중국문학 [THE CHUNG KUK MUN HAK ; Journal of Chinese Literature]

• 간기

  계간

• pISSN

  1226-2943

• 수록기간

  1973~2017

• 등재여부

  KCI 등재

• 십진분류

  KDC 820 DDC 895