Law of South Korea
The legal system of South Korea is a civil law system that has its basis in the Constitution of the Republic of Korea.
History
In Korea, many disputes were settled by de facto, informal mediators like elder members of the community or family without making their way to the court. However, as Korea modernized, lawsuits increased dramatically. The total number of civil cases filed in 2002 was 1,015,894 which went up to 1,288,987 in 2006.The South Korean legal system effectively dates from the introduction of the original Constitution of the Republic of Korea and the organization of South Korea as an independent state. During the existence of the Republic of Korea, the Constitution has been revised or rewritten several times, the most recent of which was in 1987 at the beginning of the Sixth Republic.
The Court Organization Act, which was passed into law on 26 September 1949, officially created a three-tiered, independent judicial system in the Republic of Korea.
The revised Constitution of 1987 guaranteed that judges would not be removed from office for any reason other than impeachment, criminal acts, or incapacity. Additionally, the 1987 Constitution officially codified judicial independence in Article 103, which states that, "Judges rule independently according to their conscience and in conformity with the Constitution and the law."
In addition to the new guarantees of judicial independence, the 1987 rewrite of the Constitution established the Constitutional Court, marking the first time that South Korea had an active body for constitutional review.
Judicial system
The judicial system of the Republic of Korea is composed of the Supreme Court of South Korea, the Constitutional Court of South Korea, six High Courts, 13 District Courts, and several courts of specialized jurisdiction, such as the Family Court and Administrative Court. In addition, branches of District Courts may be established, as well as Municipal Courts. South Korean courts are organized and empowered in chapters V and VI of the Constitution of the Republic of Korea.There is no system of juries in the judicial system of South Korea, although since February 2, 2008 a limited provision for advisory juries has been introduced for criminal cases and environmental cases, and all questions of law and fact are decided by judges.
Municipal Courts
The Municipal Courts only exercise original jurisdiction over minor cases, such as small claims cases where the amount in controversy does not exceed 20 million won or misdemeanor trials in which the maximum possible sentence is 30 days in jail or a fine not exceeding 200,000 won. There are currently 103 municipal courts in South Korea.District Courts
The 18 District Courts have original jurisdiction over most civil and criminal cases. Additionally, the District Court appellate panel may exercise appellate jurisdiction over cases in which a single District Court or Branch Court judge has rendered the decision. In most cases, a single judge hears the case and renders a verdict, although in particularly important or serious cases, a trial panel of three judges may hear the case and render a decision. An appellate panel is also composed of three District Court judges.Branch Courts
Branch Courts are organized under and considered a part of the District Courts. The Branch Courts function much as the District Courts do, but lack any appellate function. There are currently 40 Branch Courts in South Korea.High Courts
The six High Courts have appellate jurisdiction over cases decided by a trial panel of three judges in a District Court or Family Court, decisions of the Administrative Court, and civil cases heard before the District Court in which one judge decided and where the amount in controversy exceeds 50,000,000 won. Appeals to the High Court are heard by a panel of three High Court judges. High Courts are located in Seoul, Busan, Daegu, Daejon, and Gwangju. Additionally, a special panel of the Gwangju High Court has been established in the Jeju District Court.Judges
The qualification of the judges is delegated by the Korean Constitution to the Court Organization Act. In the Court Organization Act Article 42 states that those who passed the National Judicial Examination and have completed the two-year training program at the Judicial Research and Training Institute or those who obtained qualifications as lawyers are eligible for becoming a judge. Though a small number of the judges are selected from practicing attorneys, an overwhelming number of them became judges right after graduation from the JRTI. The judicial reform in 2009 which established U.S. style law schools in lieu of the JRTI also requires the new judges to have a few years of law practice.Judges in South Korea are nominated for their position by the Chief Justice of the Republic of Korea and subsequently confirmed by the Supreme Court Justices Council. Judges serve terms of 10 years, and may be re-appointed to their positions. The nomination process and terms of service above do not apply to Justices of the Supreme Court or to Justices of the Constitutional Court, each of which has its own nomination process and term of service. See Supreme Court of South Korea and Constitutional Court of South Korea for the regulations for each.
The Constitution states that judges may not be removed from their offices except through impeachment, conviction of a crime and sentencing to imprisonment, or if they should become unable to discharge their duties due to serious mental or physical impairment. The Court Organization Act sets the retirement age of judges as 63; for Supreme Court justices, who are technically not "judges", the retirement age is 65.
Prosecutors
The Korean legal system belongs to the continental inquisitorial system, which is markedly different from the English adversarial system. It was modeled after European continental systems such as German and French judicial structure. Like Chinese prosecutors and European and Japanese prosecutors, Korean prosecutors directly or indirectly conduct criminal investigations. They involve themselves in judicial procedure by conducting investigations, determining indictable cases, and the prosecution process.Korean prosecutors have contributed to successful prosecution of many highly ranked officials and renowned conglomerate business leaders, including two former presidents and sons of incumbent presidents. Especially in 1997, the South Korean prosecution service contributed to the imprisonment of the son of the incumbent president, Kim Hyeon Chul, which happened for the first time in world judicial history. As the result of successful, even relentlessly fair probings and prosecutions of corporate crimes, they often face criticism from corrupt politicians and business leaders as to whether prosecutors' application on laws may be too severe and harsh.
Two scandal cases right before the presidential election in 2012 gave huge blows to the reputation of Korean prosecutors, and this brought in the abolition of the "grand central investigation team" in the prosecution service, which was replaced by "anti-corruption team" in Seoul central district of the prosecution service. This was a downsized format of the grand central investigation team in overall structure, i.e. personnel and scale. Also, the Korean government introduced a specially-appointed prosecutors organization for when it comes to handling large corporate-bureaucrat scandals requiring a supreme level of transparency and objectivity. Specially-appointed prosecutors will be chosen by votes of national assembly members.
However, it has been controversial whether the abolition of the grand central investigation team was inevitable, as it had accomplished substantial achievements in effective prosecution of huge corruption-corporate crimes. In addition, there are doubts whether or not the objectivity of specially-appointed prosecutors would be guaranteed when the appointment is being made by members of national assembly. If the majority of national assembly members do not want the criminal case investigated, then it is likely that the case will not be handled at all.
During the Lee Myung Bak government, Korean prosecutors often faced criticism over seemingly lenient prosecution of several cases, which was known to be related to President Lee's national project and his relatives. Plus, they are sometimes blamed for suspicious leniency in investigating prosecutors themselves. However, since the election of President Park, the Korean prosecution service has been making efforts on self-purification process in eliminating corruptions. They also are making endeavours in succession to the past Korean prosecution service's effective and objective processing of criminal investigations.
Criminal procedure
Rules of evidence
The Korean rules of evidence confer a high probative value to so-called suspect interrogation records produced by the prosecutors, which is "a protocol containing a statement of a suspect or of any other person, prepared by a public prosecutor or a judicial police". However, this document is technically hearsay under the English American legal system and contains a record of a confession made without assistance of legal counsel. While either the police officer or prosecutor can produce a suspect interrogation record, one made by a prosecutor is admissible if the suspect confirms the authenticity of the record at a preparatory hearing or during the trial. If the suspect denies its authenticity, the record could still be admissible if there is a circumstantial guarantee of trustworthiness. However, a record made by a police officer is inadmissible if the suspect denies authenticity later in the process.The suspect can confirm authenticity by signing the record at the end, at which time it is then is presumed to be confirmed. Another way to confirm is by substantial acknowledgment where the defendant verifies the content of the record. A police-produced record is required to have substantial acknowledgment.
Role of counsel
Currently, defense lawyers play a minimal role in the interrogation process. Defense counsel can be present during interrogation and can only object when the method of interrogation is unjust, and counsel can give opinions only after the interrogators approve.Jury trial
In January 2009, Korea began experimenting with a limited form of lay jury system.Civil rights
Citizens of the Republic of Korea are guaranteed several rights by Chapter II of the Constitution. These rights include :- freedom of speech, religion, assembly, and the press;
- the right to vote, hold public office, and petition the government;
- protections against double jeopardy, involuntary labor, ex post facto laws, and warrantless searches of residences; and
- the right to education, work, marriage, and health
One limitation placed on civil rights in South Korea is the National Security Act, which limits "anti-government activities". In particular, the National Security Act criminalizes activities such as promoting anti-government ideologies or joining anti-government organizations. The Constitutional Court has narrowed the applicational scope of the National Security Act over the years.
Nevertheless, Korean activist lawyers have managed to become a formidable institution within Korea's legal system, in part due to the election of Roh Moo-hyun as president.
Criminal law
Criminal law in South Korea is largely codified in the Penal Code, which was originally enacted in 1953, and has undergone little revision since. In addition to the Penal Code, several 'special acts' have been enacted that create criminal offenses not found in the Penal Code or else modify the penalties of crimes found in the Penal Code. In cases where provisions in a special act create an apparent conflict with the Penal Code, the special act is usually given preference.Due process
Both the Constitution and the Penal Code contain provisions that prohibit ex post facto laws and violations of due process. In addition, the Constitution requires judicial warrants for arrest, detention, search, or seizure, except where a person suspected of a crime is caught in flagrante delicto or where a person suspected of a sufficiently serious crime poses a risk of escape or destruction of evidence, in which cases an ex post facto warrant may be issued.Additionally, no criminal suspect may be tortured or compelled to testify against himself. The Constitution also requires that a person arrested for a crime be given assistance of counsel, be informed of the charges against him and of his right to counsel, and have the right to petition the court for habeas corpus. A person arrested for a crime also has the right to have his family or other close kin promptly notified as to the reason, time, and place of his detention.
The Korean Penal Code
The Korean Penal Code is organized into 372 articles, further organized into 4 chapters of general provisions and 42 chapters of specific provisions. Abortion is restricted under the Korean Penal Code.Civil procedure
Until recently there was little English literature written about Korean civil procedure. The primary body of law on civil procedure is the Korean Civil Procedure Act and the Korean Rules of Civil Procedure. Another important area is the Civil Execution Act first enacted in 2002 as a separate act. For special cases, there is the Family Litigation Act for family law matters and the Bankruptcy and Rehabilitation Act for bankruptcy and restructuring proceedings.Enactment of the Korean Civil Procedure Act
After independence, the Japanese civil procedure law remained in force until the Korean Civil Procedure Act was enacted on July 1, 1960. The KCPA has been amended 14 times with the most drastic change occurring in 2002. The 2002 KCPA emphasized the pretrial phase and the concentration of the trial for the sake of efficiency as well as separating civil execution from the KCPA.Guiding principles
Article 1 of the KCPA stipulates that the court should strive to enhance fairness, speed, and efficiency in civil proceedings.Standing
Under the Civil Act, a natural or a juristic person has a party standing. An association and a foundation other than a juristic person can have standing as a party if additional requirements are met. They are there is a decision making body, representing organ that acts thereby creating and exercising and fulfilling the rights and duties of the organization, assets separate from the assets of its members.Jurisdiction
The district courts along with their branch courts have original jurisdiction over civil cases. A single judge presides over a case in controversies not exceeding 50 million won. Above that amount, a panel of three judges hears the case. Cases that are complex and difficult for a single judge to handle are handled by a three-judge panel as well. The specific rules are prescribed in the Regulation on the Subject Matter Jurisdiction in Civil and Family Litigations.The parties can also establish jurisdiction of a particular court by agreement in writing unless another court has an exclusive jurisdiction over the matter. If the defendant fails to raise a timely jurisdictional challenge in its pleading during the pre-trial on the merits of the case, the defendant is deemed to have consented to the jurisdiction.
For cases of international character, Korean private international law, also known as conflict of laws, determines the jurisdiction. A Korean court has jurisdiction when a party or a case in controversy has substantial relationship with Korea. In determining jurisdiction, the unique nature of international jurisdiction and the relevant clauses in Korean law are considered as well.
Venue
There are general and special venues under Korean civil procedure. The court at the defendant's domicile can hear the claims. If the defendant's domicile is not known or does not exist, the court at the defendant's residence can hear the claim. The KCPA also lists special venues in addition to general venues such as the workplace, where the obligation is performed, where the subject matter is located, or where the tort occurred. If there are multiple venues, the plaintiff can choose one of them to bring an action.Litigation process
Filing a complaint
A civil action begins when a plaintiff files a complaint, which sets out the alleged facts and remedy sought, with the court. A complaint must state the parties, legal representative if any, the remedy sought, and cause of actions. The plaintiff can seek remedy such as damages, specific performance and injunctions. The three types of actions are performance, declaratory judgment, and formation claims.Performance claims
The action is to compel the defendant to perform or refrain from certain acts.Declaratory claims
The action is to have the court declare existence or absence of the legal relationship in controversy.Formation claims
The action is to create or change a legal relationship by a court order.Service of process
When a complaint is properly received by the court, the court serves the defendant with a duplicate of the complaint, usually by certified mail but also by court officials or a marshall. If the defendant's address cannot be found, the court can order a public notice instead.Dismissing a complaint
The plaintiff can dismiss the case at any time before the defendant makes his pleading on the merit. In such case, the defendant is deemed to have consented to dismissal if he makes no objection within two weeks after the plaintiff moves to do so.Pretrial period
The pretrial period is to clarify disputed facts and legal issues. The parties exchange briefs and supporting documents through answers and counterclaims under the court supervision. The defendant is required to file a written answer within 30 days after the complaint is served. In response, the defendant can accept, dispute, or remain silent about the allegations.Judgment without a trial
If the defendant accepts the claim or admits all the facts, the court can render a judgment without a trial. When the defendant fails to contest the complaints in a timely manner or remains silent, the court can regard it as acceptance or admission as well.Trial
When the pre-trial period is over, the judge sets a date for the trial. The trial is public and done orally. As there is no jury in civil litigation, all trials are bench trials. The parties can represent pro se and the court can appoint a public defender for in forma pauperis.Rules of evidence
The contested facts need to be proven by evidence, while facts admitted by the opponent do not require evidence. The judge can only rule based on the evidence presented and cannot use his or her personal knowledge to rule on the case. The court has very wide discretion in assessing relevance and materiality of evidence, and virtually any type of evidence can be admitted to the court. Typically, documentary evidence tends to have higher probative value than oral testimony.Witnesses
Unlike other countries, the party to the litigation cannot be a witness. A witness has the privilege not to testify if he or she has a justification. KCPA Article 315 lists attorneys, patent attorneys, notaries public, certified public accountants, doctors, pharmacists, and priests to have such privilege.The witness is first examined by one party and then cross-examined by the opposing party, followed by re-direct and re-cross. The judge can also ask questions of the witnesses during the examination. Leading questions are permitted only on cross-examination and not others.
Verdict
After the conclusion of the trial, the judge renders a judgment based on the evidence presented and law. The opinion of the court follows a highly structured format of parties and legal representatives, cause of action, date when the pleadings were done, the court. Unlike the opinions of the common law jurisdictions, the Korean judicial opinions tend to be brief and often lack detailed reasoning for the conclusion.Appeal
When the decision is given, the losing party can appeal to the court above within 14 days after the judgment is served to that party or else the judgment becomes final. The other party can cross appeal as well. The court of appeals can examine the facts as well as law and the parties can submit new allegations and pieces of evidence.After the appellate court makes a decision, the parties can appeal to the Supreme Court. The Supreme Court hears a large number of appeal cases and sometimes rules on factual issues as well.