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Each of your written works should not exceed 2 pages of an A4 size sheet.
Completed work must be uploaded at https://lawlec.korea.ac.kr/essay/

**IMPORTANT**

If you use ChatGPT (even partially), you must disclose that your work was assisted by ChatGPT.

I myself have already run the following questions (and several variants of these questions) in ChatGPT so I already know what kind of (inadequate) responses are provided by it.

Ancient Chinese Law and Philosophy (ACLP)

[ACLP Assignment No. 1]

"Are we bound by law?"

In preparing your written work, please consult:

Joseph Raz, "The Obligation to Obey: Revision and Tradition", 1 Notre Dame J.L. Ethics & Pub. Pol'y 139 (1985). (Full text available at HeinOnline, which is accessible from the KU Library website)

You should also take into account of the following:

The Master spoke of Gong Ye Chang (公冶長): "He is marriageable. Although he was imprisoned, it was not his fault." The Master gave his daughter to him in marriage. (Lunyu 5.1)

Due date: 17 November 2024, 23:00

[ACLP Assignment No. 2]

Discuss the following passage from Lunyu:

Duke of She (葉公) told Confucius, “In my village, there is an honest person. When his father stole a sheep, he testified as a witness.” Confucius said, “In my village, honesty is different. Father’s deed may be covered up by the son. Son’s deed may be covered up by the father. Honesty can also be found there.” (Lunyu 13.18)

In preparing your written work, please take into account the classroom discussion and compare it with H Rosement, R Ames, "Family Reverence (xiao 孝) as the Source of Consummatory Conduct (ren 仁)" Dao, Vol. 7, No. 1, 9-19

Due date: 5 December 2024, 23:00

Guan Zhong (管仲; ca. 720BC-645BC) was the minister who assisted Duke Huan of Qi so that the State of Qi became the leading state (hegemon) during the Spring and Autumn Period of ancient China. But Confucius apparently had harsh things to say about him:

“Guan Zhong is a man of small calibre! (관중은 쪼잔해! 管仲之器小哉！)” (八佾 3.22)

Someone asked clarification.

“You mean, he was frugal? 管仲儉乎？”

Confucius did not mince his words. He made scathing remarks about Guan Zhong’s staggering wealth. According to Confucius, Guan Zhong did not know Li 禮 either.

He had three residences, each complete with a full array of domestic staff. How could he be frugal? Only a ruler can have a gate screen. But Guan Zhong had one. Only when a ruler entertains another ruler, can he have a cup stand. But Guan Zhong had a cup stand. If he knew Li, who didn’t?

However, regarding the question of ethical integrity (仁), Confucius shows a very interesting response. Was Gaun Zhong a man of ethical integrity? That was the question posed by Confucius’ students.

Zi Gong said, “Guan Zong lacked ethical integrity, did he not? When Duke Huan of Qi had his brother Jiu killed, Guan Zhong was unable to commit suicide. He instead served Duke Huan as his minister.” (憲問 14.17)

Jiu was the elder brother of Duke Huan. Guan Zhong was originally serving Jiu. When there was an armed conflict between brothers who were competing for the throne of Qi, Guan Zhong attempted to assassinate Duke Huan. But the attempt was unsuccessful and Jiu had to flee to a neighbouring state. When Duke Huan eventually came to the throne of Qi, he put pressure on the ruler of the neighbouring state (who harbours Jiu) to have Jiu killed. Jiu was duly killed and his body was pickled and presented to Duke Huan. When a ruler is killed, it was ‘appropriate’ and perhaps ‘ethical’ for his minister such as Guan Zhong to commit suicide. For instance, minister Shao Hu who had been serving Jiu committed suicide when Jiu was killed. But Guan Zhong not only not killed himself but somehow enlisted the help of his close friend Bao Shuya ( 叔牙鲍 ) who was an aide to Duke Huan. Bao recommended Guan Zhong to Duke Huan and Guan Zhong became his minister. Guan Zhong must have had a superbe skill of winning the mind of his former enemy. Zi Gong, however, denounces Guan Zhong’s apparent lack of ‘ethical integrity’. However, Confucius replied as follows:

Guan Zhong acted as prime minister to the duke Huan, made him leader of all the princes, and united and rectified the whole kingdom. Down to the present day, the people enjoy the gifts which he conferred. Without Guan Zhong, we should now be wearing our hair unbound, and the lappels of our coats buttoning on the left side. Will you require from him the small fidelity of common men and common women, who would commit suicide in a stream or ditch, no one knowing anything about them? (憲問 , 14.17)

Zi Lu asked a similar question. Confucius’ reply was even more definitive.

When the duke Huan caused his brother Jiu to be killed, Shao Hu died with his master but Guan Zhong did not die. May not I say that he was lacking ethical integrity?
The Duke Huan assembled all the princes together without even using weapons of war and chariots - it was all through the influence of Guan Zhong. Have ethical integrity like him! Such ethical integrity as his! 子曰：「桓公九合諸侯，不以兵車，管仲之力也。如其仁！如其仁！」 (憲問, 14.16)

There is another passage where Confucius extols Guan Zhong’s great virtue.

Someone asked about Zi Chan. Confucius replied. ‘He was kind.’ Someone asked about Zi Xi. Confucius said, ‘Oh dear, don’t ask me about him. Not him!’ Someone asked about Guan Zhong. Confucius said, ‘A great man, indeed. He grabbed the town of Pian which had three hundred households from the Bo family. The villagers only managed to have coarse meals, but no one had bad feelings until the end (even when they had no teeth from old age).’(憲問, 14.9)

What then? All is well that ends well? The end justifies the means? All is forgiven as long as you get the result? Definitely not! There are simply too many passages where Confucius emphasised that the process counts, rather than the result. Even if you cannot hope to have a result, you must nevertheless endeavour in all earnest.

Ethical integrity, morality is far more complex. It cannot be simply explained in black on white. It is certainly not a matter of some “inflexible” principle. It is not something that can be approached from dogmatic or absolute terms.

A good deal of common sense and flexibility would put you on the right path, provided that you have the right training and the right frame of mind – provided also that you have the determination to improve yourself constantly.

Original text

[Duke of Zhou] spoke thus: Lord of lords, my younger brother Feng! Our illustrious father the late King Wen (文王) has shown splendid virtues and prudently applied punishments (明德慎罰). He dared not despise widows and widowers. He employed the employable, respected the respectable. He was fearsome against the feared. He shined in the eyes of the people. He thus started our area, then it grew beyond our one or two regions and this is how we came to rule our western territory. All this while, he diligently sought counsel from the Lord Above (上帝) and the Lord was pleased. Heaven therefore ordained King Wen to conquer the Yin. The heavenly mandate reached its territory and its people. They are provided for at the moment. Your humble elder brother (Duke of Zhou) made some efforts and thus you are here in this eastern territory.

Oh, Feng, keep this in mind. Whether these people will remain reverent would depend on whether you take the example of the late King Wen and follow his virtuous words (德言). Please do a comprehensive study of earlier sage kings of Yin so that you can govern these people well. You should uphold the teachings of Shang elders so that you can win their heart and know what to teach them. You should specially seek counsel of the ancient sage kings so that you make people prosper and protect them. When your virtues are great enough to reach the sky, you will not be cast away in the execution of the king's commands.

My little brother Feng! Feel the pain of the people as if it is your own. Be mindful of the Heaven. Fearful as it may be, Heaven helps those who are sincere. You can see the public opinion in its broad outline, but it is difficult to retain small men. When you are there, give all your heart. Do not indulge in leisure and pleasure. Govern people instead. I heard thus, "Grievance does not arise from abundance or shortage; it arises from lack of principle in giving rewards and lack of the ruler's efforts."

It is true, my little brother, you must ensure that the Yin people are well protected and that they obey the king. You must assist the royal house in fulfilling the Heaven's mandate by renovating these people (作新民).

Oh, Feng, please be cautious and transparent in applying punishments (敬明乃罰). Suppose a person commits a small crime. If it is not a mishap but an intentionally committed violation of the rules, then the law is that -- even though the crime may be small -- he cannot but be put to death. On the other hand, even though the crime is great, if it was not intentionally committed but a disastrous mishap, then the equity is that -- if the person has already fully admitted its fault -- he shall not be put to death.

Oh, Feng, if these are properly done, people will obey splendidly. They will regulate themselves and strive for harmony treating the misdeed as if it is a disease. They will abandon their evil deeds. Protect them as if they are your own babies. They will prosper and be orderly. It is not you, Feng, who punish or execute people. Do not punish or execute them arbitrarily. It is not you, Feng, who cut the nose or ears of the people. Do not arbitrarily cut people's nose or ears.

When 'external' affairs are presented to you, let the appropriate legal officer (臬司) deal with them according to the punishments of Yin which stand to reason. When interrogating a prisoner, reflect for five, six or upto ten days before making the definitive decision. When legal officer pronounces the punishments in the proceedings you supervise, make sure that they are in accordance with the Yin law and the punishment and the execution are just. Do not use them to suit your personal feelings, saying, "I think this is proper", "I think this is not in order". [It is true, Feng, you are young. There is no one who has a heart like yours. You know my heart and my virtue.]

Those who commit the crime of robbing, stealing, treachery, killing, laying hands on other's goods or committing violence without fearing one's life, are to be abhorred. But the greatest evil to be abhorred all the more is lack of filial piety and brotherly love. The son who does not serve his father with respect, but greatly hurts his father's heart; the father who does not love his son, but hates him; the younger brother who does not think of Heaven's brightness, and does not respect his elder brother; the elder brother who does not have compassion for his tender younger brother, and treats him coldly and suppress him: if we do not deal with the people who commit these crimes, the law which our people have received from the Heaven will be greatly annihilated and disturbed. This is why these conducts need to be constrained. They must have the punishment or execution as set down by King Wen without pardon.

When the great command is disobeyed; moreover, when junior lords, village chiefs, their deputies and minor officers sent out [to Yin] entrusted with power give commands arbitrarily and cause havoc; and when people in general, without scruple and without diligence, plague their ruler, evils arise. And I abhor them. This is why you need to deal with them and put them to death in accordance with rightness.

Also, when the ruler and the heads cannot manage to control their own family members and when their small officers and retainers cause terror and commit cruelty, that is to greatly abandon the king's commands and to use punishments without virtue (非德用乂). You too must never fail to uphold the law and make people happy just as King Wen made them happy through his cautious reverence for the law. Having made the people happy, if you can say, "I made it", I shall be happy.

Feng! people should be guided by auspiciousness and happiness. Use the virtue of earlier sage kings of Yin and seek to govern people well. It is not right to lead people astray. If people do not follow your lead, then there is no government in that country.

Feng! I cannot but reflect upon and tell you these virtuous sayings about administration of punishments (德之說于罰之行). At the moment, the people are not quiet. A lot of them have not made up their mind to follow us. They have not yet become one with us. Only Heaven will punish those who kill us. We should not blame them as long as their crimes are not with their magnates, are not widespread. It is said, "If it is manifest, it will be heard in Heaven."

Oh, Feng! Be cautious and respectful. Do not cause grief. Do not use bad counsel, do not follow the crooked way. Please practice virtue diligently. Have firm resolve. Scrutinise your own virtue. Have a grandiose plan. Be generous to the people to bring them comfort. Then I shall have no occasion to blame you or to remove you.

Oh, my little brother Feng! Our mandate is not permanent. You must remember it. Do not make me remove you. Obediently carry out the mandate clearly. Uphold what you heard from me. Govern people well.

Go, Feng! Do not ruin the revered law. Listen to my advice. You will then be venerated by Yin people generation after generation.

The fundamental rule of contract interpretation is that contractual language must in principle be given effect as it is written. The Korean Supreme Court (the highest court in Korea for civil and criminal matters) has consistently ruled as follows:

Once the court is satisfied with the authenticity of the contractual document, the court must, in the absence of clear and convincing evidence to deny what is written, recognise the existence and the content of the parties’ intent as it is written on the contractual document. (Supreme Court Judgment 2002Da23482 dated 28 June 2002)

The importance of contractual language is further emphasised as follows:

In interpreting a contract, if the parties’ true intent is not knowable, the interpretation should be based on the intent inferred from outward expressions rather than the intent inside the parties’ mind because what constitutes the contractual intent is the intent inferred from expressions, i.e., the expressed intent, rather than the intent which was held in the parties’ mind.²

2Ibid.

The Supreme Court also ruled that “contract interpretation aims to establish clearly the objective meaning the parties assigned to the expression. While the court is not always constrained solely by the language chosen by the parties, the court’s task is nevertheless to base itself on the contractual language and to interpret reasonably the objective meaning which the parties assigned to the expression regardless of what the parties might have entertained in their mind.”³

If the objective meaning is unclear from the language of the contract, the Supreme Court has given guidance as follows: “when the court has to interpret the intent of the parties because there is a difference of views as to the interpretation of the contract, the interpretation must be done reasonably in accordance with logic and rules of experience, taking account comprehensively of the textual content, motives and circumstances leading to the agreement, the aim and purpose which are to be achieved by the agreement as well as the parties’ true intent.”⁴The Supreme Court has also held that the interpretation must be consonant with the notions of justice and equity as well as the common sense of the general public and the ordinary commercial understanding.⁵

3Supreme Court Judgment 2000Da40858 dated 23 March 2001. Also see Supreme Court Judgment 2002Da23482 dated 28 June 2002.

4Supreme Court Judgment 93Da32668 dated 25 March 1994; Supreme Court Judgment 96Da1320 dated 9 April 1996. Similar rulings are repeated in a number of cases. For example, Supreme Court Judgment 92Da47236 dated 24 August 1993. The “rules of experience” mean rules derived from the experience of living in society (사회생활에 있어서의 경험 법칙).

5Supreme Court Judgment 2008Da90095, 90101 dated 14 May 2009.

1. The Night Sky

• The Master said, "To govern with virtue is like being the Pole Star. You stay put and all the stars venerate you." 子曰：「為政以德，譬如北辰，居其所而眾星共之。」(2.1)
• Our illustrious father the King Wen greatly promoted virtue (德) and cautiously applied punishments (罰).  惟乃丕顯考文王 克明德慎罰. 尙書, 康誥 2

2. Everything in its right place: 君君，臣臣，父父，子子

• The Master said, "Govern people with politics and align them with punishments, they will evade and have no shame. Govern them with virtue and align them with Li, they will have decency and things will be in the right place (格)." 子曰：「道之以政，齊之以刑，民免而無恥；道之以德，齊之以禮，有恥且格。」(2.3)
• Duke Jing of Qi asked about governing. Confucius said, "A ruler should be a ruler, a minister should be a minister, a father should be a father and a son should be a son." The Duke said, "Lovely answer! Suppose a ruler is not a rule, a minister is not a minister, a father is not a father and a son is not a son, then even if there may be grains of millet, how can I eat them?" 齊景公問政於孔子。孔子對曰：「君君，臣臣，父父，子子。」公曰：「善哉！信如君不君，臣不臣，父不父，子不子，雖有粟，吾得而食諸？」

3. Proper punishments (刑之中)

• Pre-confucian sources:
  • If governing is done properly, people will obey.  有敘時 乃大明服 (尙書, 康誥 6)
  • With upright application of proper punishments, you should guide and govern people to make them splendid  故乃明于刑之中，率乂于民棐彝。(尙書, 呂刑 3)
• Analects:
  • Duke Ai asked, "What should I do to make people obey?" Confucius replied, "If you promote and employ the straight to grind out the crooked, people will obey. If you promote and employ the crooked to grind out the straight, people will not obey." 哀公問曰：「何為則民服？」孔子對曰：「舉直錯諸枉，則民服；舉枉錯諸直，則民不服。」(2.19)
  • Zi Lu said, "Suppose the ruler of Wei recruits you and entrusts the governing. What will you do first?" The Master said, "I would rectify names, first of all." Zi Lu said, "There you go. You're always taking a long detour, aren't you? How come rectifying names is your first priority?" The Master said, "How uncivilised you are! A noble man would remain quiet when it is about something he does not know. If names are not correctly used, your speech will be feigned. With a feigned speech, you cannot accomplish anything. If things are not accomplished, the Li and the Music will not flourish. If the Li and the Music do not flourish, punishments will not be properly administered. If punishments are not properly administered, people would not know where to stand. If a noble man should name names, he must be able to defend it. If he should say things, he must be able to act on it. When it comes to speech, a noble man ought not to talk nonsense."
    子路曰：「衛君待子而為政，子將奚先？」子曰：「必也正名乎！」子路曰：「有是哉，子之迂也！奚其正？」子曰：「野哉由也！君子於其所不知，蓋闕如也。名不正，則言不順；言不順，則事不成；事不成，則禮樂不興；禮樂不興，則刑罰不中；刑罰不中，則民無所措手足。故君子名之必可言也，言之必可行也。君子於其言，無所苟而已矣。」(13.3)
  • Lord Ji Kang asked about governing. Confucius answered, "It is to make it upright. If you take the lead by being an upright example, who would dare to be crooked?" 季康子問政於孔子。孔子對曰：「政者，正也。子帥以正，孰敢不正？」(12.17)
  • The Master said, "A noble man cherishes virtue, a small man cherishes land. A noble man is mindful of punishment, a small man is mindful of benefit." 子曰：「君子懷德，小人懷土；君子懷刑，小人懷惠。」(4.11)
• Post-confucian sources:
  • Through an upright application of punishments, let the people have the sense of shame. 以明刑恥之 (周禮, 秋官司寇 57)
  • Li does not reach down to the rank and file. Punishment does not reach up to the magnates. 禮不下庶人，刑不上大夫 (禮記, 曲禮上 68). ??
  • [When Confucius was appointed the Chief Law Enforcement Officer of Lu, he had executed a magnate Shao Zheng Mao (少正卯) on charges of corruption.] The words got around and a few months later, merchants selling pork or mutton did not try to rip off the customers; men and women used different sides of a road; no one touched lost or misplaced items in the street; and visitors from foreign countries obtained what they wanted from the officials without bribing them. (史記, 孔子世家 19)

4. xiao (孝) in the context of Zhou feudalism

• Master You said, "A person who loves his parents and brothers and yet loves to attack his superiors is hard to find. A person who does not love to attack his superiors and yet loves to start a rebellion is unheard of. A noble man will strive to get the basics properly done. When the root is solidly established, the Way will flourish. Respect for parents and affection for brothers are the root of ethical integrity." 有子曰：「其為人也孝弟，而好犯上者，鮮矣；不好犯上，而好作亂者，未之有也。君子務本，本立而道生。孝弟也者，其為仁之本與！」(1.2)
• The Master said, "When your father is alive, you should observe what he intends. When he is dead, you should observe what he did. If you do not change your father’s way for three years, you can be called a dutiful son. 子曰：「父在，觀其志；父沒，觀其行；三年無改於父之道，可謂孝矣。」(1.11)
• Zi Zhang said, "In the Documents, there is a passage 'Gao Zong did not speak for three years when his father died.' What does that mean?" The Master answered, "Not only Gao Zong, but all rulers in olden days were like that. When a ruler dies, officials reported to the Prime Minister and the governing was done by the Prime Minister's order. This continues for three years." 子張曰：「《書》云：『高宗諒陰，三年不言。』何謂也？」子曰：「何必高宗，古之人皆然。君薨，百官總己以聽於冢宰，三年。」(14.40)
  • (史記, 殷本紀 23): When the Emperor Xiao Yi died, his son Wu Ding [=Gao Zong] was established as the new emperor. Emperor Wu Ding wanted to rejuvenate Yin but he could not secure his aides. For three years, he did not speak. He let the governing be done by the Prime Minister's decisions and observed the trends of the country. 帝小乙崩，子帝武丁立。帝武丁即位，思復興殷，而未得其佐。三年不言，政事決定於冢宰，以觀國風
• Master Zeng said, "I heard the Master saying as follows: Lord Meng Zhuang's love for his parents can be emulated by others. But he did not replace his father's ministers and he did not change his father's policies. That is difficult to emulate." 曾子曰：「吾聞諸夫子：孟莊子之孝也，其他可能也；其不改父之臣，與父之政，是難能也。」(19.18)
• cf. Meng Zi's misunderstanding: When a ruler dies, the new ruler would let the Prime Minister do the governing. The new ruler would eat porridge, his face dark with sorrow. He keeps wailing upon acceding to the throne.  Officials down to the lowest grade dare not fail to grieve. 君薨，聽於冢宰。歠粥，面深墨。即位而哭，百官有司，莫敢不哀 (孟子, 滕文公上 2)
• Confucius' own remarks about mourning period:
  • Lunyu 17.21: Zai Wo asked about three year mourning period, saying "One year is long enough. If a noble man does not practice Li for three years, Li will be ruined. If music is not performed for three years, music will be lost. One year is long enough for old grains to be used up, new grains to ripen and the wood to make fire with a flint will have changed in a year." The Master said, "Would you feel comfortable eating fine rice and wearing fine cloth [after one year of mourning]?" Zai Wo said, "Yes, I would." The Master said, "If you feel comfortable doing it, then do it! When a noble man is in mourning, he would not feel the taste even when he has nice food, he would not feel joy even when he hears good music, he would not feel comfortable regardless of the dwelling. That's why he does not eat fine rice or wear fine cloth. But if you feel comfortable doing it, then do it!" Zai Wo left. The Master said, "It shows Yu (予) lacks ethical integrity. When a child is born, it takes three years before it can leave the parents' arms. Three year mourning is normally practised everywhere. Did Yu ever have the benefit of his parents' love for three years?"

5. Honesty (直)

• Duke She (葉公) told Confucius, “In my village, there is a very honest person. When his father stole a sheep, he testified against it.” Confucius said, “In my village, honesty is different. A father may cover up his son's deed. A son may cover up his father's deed. Honesty can be there.” 葉公語孔子曰：「吾黨有直躬者，其父攘羊，而子證之。」孔子曰：「吾黨之直者異於是。父為子隱，子為父隱，直在其中矣。」(13.18)
• Duke She asked Zi Lu about Confucius. Zi Lu ignored him. The Master said, "Why didn't you say that he is the kind of man who would forget about eating when he is outraged, forget his worries when he is happy and he does not know that old age will eventually get to him." 葉公問孔子於子路，子路不對。子曰：「女奚不曰，其為人也，發憤忘食，樂以忘憂，不知老之將至云爾。」(7.19)
• Duke She asked about governing. The Master said, "If you make people near you happy, far away people will come to you." 葉公問政。子曰：「近者說，遠者來。」(13.16)

What did Confucius say about honesty?

• One should live with honesty. If you live crookedly, all you can manage, if lucky, is to avoid being caught." 子曰：「人之生也直，罔之生也幸而免。」(雍也 6.19)
  
• The Master said, "There are three types of helpful friends and three types of harmful friends. Honest friends, sympathetic friends and erudite friends are beneficial. Bigoted friends, slippery friends and silver-tongued friends are harmful." 孔子曰：「益者三友，損者三友。友直，友諒，友多聞，益矣。友便辟，友善柔，友便佞，損矣。」 (季氏 16.4)
  
• Zi Zhang asked, "What should an officer do to become a successful person?" The Master said, "What do you mean by 'success'?" Zi Zhang answered, "Renowned in the country, renowned in the family." The Master said, "That is a renown. It is different from 'success'. A successful person is honest in his substance and is fond of righteousness. He cautiously observes people's speeches and appearances. He is considerate to people who are below him. Such a person is a success wherever he may be. A renowned person puts on an appearance of being ethical but his actions are against it. He remains and indulges in his position without self reflection. Such a person is bound to be renowned in the country and in the family." 子張問：「士何如斯可謂之達矣？」子曰：「何哉，爾所謂達者？」子張對曰：「在邦必聞，在家必聞。」子曰：「是聞也，非達也。夫達也者，質直而好義，察言而觀色，慮以下人。在邦必達，在家必達。夫聞也者，色取仁而行違，居之不疑。在邦必聞，在家必聞。」(顔淵 12.20).
• When honesty is not in accordance with Li, it becomes a snare. 直而無禮則絞 (泰伯 8.2),
• When you cherish honesty and does not cherish learning, you end up in a straight jacket. 好直不好學 其蔽也絞 (陽貨, 17.8)
• Learning will make you overcome inflexibility.  學則不固 (學而 1.8)
• Zi Gong said, "Does a noble man also have hatred?" The Master said, "Of course. He hates those who speak ill of others. He hates those who live a lowly life and slander superior people. He hates those who have courage and yet fail to abide by Li. He hates those who are bold and yet have a closed mind." The Master then said, "Ci (賜), do you also have hatred?" Zi Gong replied, "I hate those who beat around the bush and treat it as wisdom. I hate those who are rude and think that they are courageous. I hate those who rat on others and think that they are honest." 子貢曰：「君子亦有惡乎？」子曰：「有惡：惡稱人之惡者，惡居下流而訕上者，惡勇而無禮者，惡果敢而窒者。」曰：「賜也亦有惡乎？」「惡徼以為知者，惡不孫以為勇者，惡訐以為直者。」 (陽貨 17.24)

6. Mencius (372-289 BCE), Warring States Period (475-221 BCE), "xiao (孝) fundamentalism"

• Emperor Shun (舜) (legendary, 2294-2184)
  
• His father Gu Sou (瞽瞍)
• Justice Minister Gao Yao (臯陶)
• Gu Sou commits a murder and is arrested. Shun smuggles out Gu Sou. Shun and Gu Sou escape to a seaside town and they live happily ever after.
• Ethical Black Hole (孟子, 盡心上 35; 萬章上 1-3)

Xiao, Ti (孝, 弟) and their limits

• Zi Gong asked, "What qualities are needed to be regarded as an officer?" The Master said, "When you have a sense of shame in your conduct and when you do not put your ruler's commands into disrepute wherever you are sent on a mission, you can be regarded as an officer." Zi Gong said, "May I ask what kind of persons come next?" The Master said, "Those who are praised by family members for serving parents well and those who are praised by townspeople for being kind-hearted." Zi Gong said, "May I ask what kind of persons come next?" The Master said, "Those whose speech is trustworthy and who get things done. Although they may have stubbornness of the petty and the lowly, they can come next." Zi Gong said, "How about those who are in the government these day?" The Master said, "Oh, dear! Those small minded people, there are too many to count." (子路 13.20)
• Si Ma Niu was unhappy and said, "Everybody has brothers. But I am all alone." Zi Xia said, "I heard thus: Life and death take their course as ordained. Wealth and poverty are made in Heaven. A noble man will tread cautiously and will not make mistakes. A noble man will respect people and abide by Li. If you conduct yourself in this manner, within the four seas, everyone is your brother. How can a noble man worry about not having a brother?" 司馬牛憂曰：「人皆有兄弟，我獨亡。」子夏曰：「商聞之矣：死生有命，富貴在天。君子敬而無失，與人恭而有禮。四海之內，皆兄弟也。君子何患乎無兄弟也？」(12.5)
• [Actually, Si Ma Niu had a brother, 桓魋 Huan Tui, who attempted to assassinate Confucius. Analect 7.23. Zuo Zhuan, Duke Ai, 14]

• 90Da8374 dated 27 March 1991 recognises repudiatory breach without giving any detailed explanation: 쌍방의 채무가 동시이행 관계에 있는 쌍무계약에 있어서 당사자 일방이 미리 자기의 채무를 이행하지 아니할 의사를 표명한 때에는 상대방은 이행최고나 자기의 채무이행제공이 없이 계약을 해제할 수 있는 것이고, 이러한 채무를 이행하지 아니할 의사의 표명여부는 계약이행에 관한 당사자의 행동과 계약 전후의 구체적 사정 등을 살펴서 판단하여야 할 것이다.
• 93Da11821 dated 25 June 1993: Repudiatory breach was recognised on the ground of "good faith": 채권자에게 계약을 이행할 의사가 전혀 없고 채무자로서도 그 계약관계에서 완전히 벗어나기를 원한다면 특별한 사정이 없는 한 채무자의 이러한 의사를 존중함이 신의성실의 원칙에 비추어 타당하다고 할 것이다.
  돌이켜 이 사건을 보면 원심이 인정한 대로 피고들은 중도금의 수령을 거절한 데다가 이 사건 매매계약을 이행할 의사가 없음이 분명한데, 만약 원고가 피고들의 중도금 수령거절과 계약이행의 의사가 없음을 이유로 이 사건 매매계약을 해제할 수 없다고 해석한다면, 원고로서는 중도금을 공탁한 후 잔대금 지급기일까지 기다렸다가 잔대금의 이행제공을 하고 피고들이 자기들 의무인 소유권이전등기의무의 이행제공을 하지 아니한 때에야 비로소 위 계약을 해제할 수 있다는 결론에 이르게 되는바, 어차피 피고들이 위 소유권이전등기의무의 이행을 제공하지 아니할 것이 분명한 이 사건에서, 원고에게 위와 같은 방법을 취하라고 요구하는 것은 불필요한 절차를 밟고 또다른 손해를 입도록 강요하는 게 되어 오히려 신의성실에 어긋나는 결과를 초래할 뿐
• 2004Da53173 dated 18 August 2005: If a party definitively and unequivocally expresses its intent not to perform its contractual obligation and it is thus unlikely that the contract will ever be performed voluntarily, it would constitute a repudiatory breach. In that case, on the basis of good faith principle, the other party is entitled to terminate the contract forthwith. 계약상 채무자가 계약을 이행하지 아니할 의사를 명백히 표시한 경우에 채권자는 신의성실의 원칙상 이행기 전이라도 이행의 최고 없이 채무자의 이행거절을 이유로 계약을 해제하거나 채무자를 상대로 손해배상을 청구할 수 있고, 채무자가 계약을 이행하지 아니할 의사를 명백히 표시하였는지 여부는 계약 이행에 관한 당사자의 행동과 계약 전후의 구체적인 사정 등을 종합적으로 살펴서 판단하여야 한다( 대법원 1993. 6. 25. 선고 93다11821 판결, 1997. 11. 28. 선고 97다30257 판결 등 참조).

• 민법 제544조(이행지체와 해제) 당사자 일방이 그 채무를 이행하지 아니하는 때에는 상대방은 상당한 기간을 정하여 그 이행을 최고하고 그 기간내에 이행하지 아니한 때에는 계약을 해제할 수 있다. 그러나 채무자가 미리 이행하지 아니할 의사를 표시한 경우에는 최고를 요하지 아니한다.
• 2018Da214210 dated 15 July 2021: Art 544 is understood as covering repudiation while in delay. The Court then explains anticipatory breach (repudiation before the due date) as follows: 여기에서 나아가 계약상 채무자가 계약을 이행하지 않을 의사를 명백히 표시한 경우에는 채권자는 이행기 전이라도 이행의 최고 없이 채무자의 이행거절을 이유로 계약을 해제하거나 채무자를 상대로 손해배상을 청구할 수 있다. 이때 채무자가 계약을 이행하지 않을 의사를 명백히 표시하였는지는 계약 이행에 관한 당사자의 행동과 계약 전후의 구체적인 사정 등을 종합적으로 살펴서 판단하여야 한다. 위와 같은 이행거절로 인한 계약해제의 경우에는 채권자의 최고도 필요하지 않고 동시이행관계에 있는 자기 채무의 이행제공도 필요하지 않아, 이행지체를 이유로 한 계약해제와 비교할 때 계약해제의 요건이 완화되어 있으므로, 이행거절의사가 명백하고 종국적인 것으로 볼 수 있어야 한다. 명시적으로 이행거절의사를 표명하는 경우 외에 계약 당시 또는 그 후의 여러 사정을 종합하여 묵시적 이행거절의사를 인정하기 위해서는 그 거절의사가 정황상 분명하게 인정되어야 한다.

• Repudiatory breach is necessarily an ‘intentional’ breach. It cannot be committed ‘negligently’ without a clear, firm and definitive intention to refuse to perform the contract.
• An honestly, but erroneously held conviction is not a valid defence or excuse for a repudiatory breach. Where a party denies its contractual obligation on an honestly, but erroneously held conviction that it has no such obligation, the party’s denial of obligation would be a repudiatory breach all the same.
• 2008Da29635 (dated 12 March 2009), for example, the seller erroneously claimed that he had no obligation because he terminated the contract. The Supreme Court found that the seller’s termination was invalid and that the seller’s refusal to perform the contract (which was due to the seller’s erroneous view of the validity of its purported termination) is nevertheless a repudiatory breach.
• 2011Da85352 (dated 26 December 2013): "Where an obligor made a legal assessment of the grounds and the existence of the obligation and, as a result of his legal assessment, believed that he had no obligation and accordingly refused to perform and brought a lawsuit to dispute the obligation, if the obligor’s legal assessment is erroneous, the non-performance of the obligor cannot – in the absence of special circumstances – be said to be without intention or negligence.” (a case where the validity of the housing redevelopment permission was contested)
• 2009Da22778, dated 25 February 2010 : the guarantor who agreed to provide performance guarantee shall be liable for its repudiatory breach if it refuses to pay on the due date even if it relied on the existence of a preliminary injunction prohibiting the payment, even if it concluded (on the basis of its legal assessment, “which it should take at its own peril”) that it had no obligation because the underlying contract (which was the basis of the performance guarantee) was terminated.
• 2014Da19776 (dated 15 February 2017): A telecom company refused to allow interconnection based on an erroneous belief and legal assessment that its duty to allow interconnection applies only to 2G communication service and did not apply to 3G communication service. The Court found that the telecom company’s duty applies also to 3G communication service and accordingly held that the telecom company committed an “intentional” breach.
• Termination which is allowed in the event of the other party’s repudiatory breach is considered to be a ‘legal’ right, as distinct from a ‘contractual’ right. As a result, the terminating party is not required to be bound by contractually stipulated requirements for exercising a contractual right of termination, such as giving an advance notice requesting rectification of the breach. In the event of the other party’s repudiatory breach, the termination can be done immediately upon present notice.

Written works should not exceed 2 sides of an A4 sheet. Please upload your written works at this page. Make sure that you do not commit plagiarism. See this.

Please hand in your work by 23:00 on 21 November 2018.

Korean Contract Law I

Discuss Article 69 of the Commercial Code and compare it with the Civil Code, Article 580 and Article 582.

Ancient Chinese Law and Philosophy

Are we bound by law? or by ethics?

In preparing your written work, please consult Joseph Raz, "The Obligation to Obey: Revision and Tradition", 1 Notre Dame J.L. Ethics & Pub. Pol'y 139 (1985).

The examination will be held in Room 412, Woodang Hall on 18 December 2017 (Monday) at 2:00pm.

It will be an open-book examination. During the examination, you may consult any materials (including online materials) in your possession.

 

• 고사시간은 75분입니다.
• 자신이 소지한 자료(인터넷 자료 포함)에 한하여 자유로이 참조 가능합니다.
• 답안지에는 학번만 기재하고, 이름과 학과는 기재하지 마십시오.
• 아래 제시된 두 문제를 모두 답하십시오.

1. 이완용의 후손이 이완용 소유였던 토지를 되찾아오기 위한 소송을 국가를 피고로 하여 제기한 사건에서 서울고등법원은 1997년7월25일에 선고된 92나23638 판결에서 다음과 같이 판시하였다:

반민족행위자나 그의 후손이라고 하여 법률에 의하지 아니하고 그 재산권을 제한, 박탈하거나 그 재산에 대한 법의 보호를 거부하는 것은 법치국가에서 있을 수 없는 일이다. 법률이 정한 재산권의 보호를 일반인과 똑같이 평등하게 부여하는 것이 비록 정의 관념에 비추어 선뜻 내키지 않는 경우라고 하여도 그러한 정의 관념에 합당한 법률을 장구한 세월이 흐르도록 국회가 제정하지 않았다면 지금에 와서 소급하여 과거의 일을 정의 관념만을 내세워 문제삼는 것이 오히려 사회질서에 어긋날 수 있다.

법원의 이러한 입장에 대하여 논평하라.

2. 자기 스스로의 부주의함으로 인하여 계약 내용의 중요한 부분에 대하여 오해한 채로 계약을 체결한 당사자를 보호해야 할 이유가 있을까?