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Emblem of South Korea.svg
This article is part of a series on the
politics and government of
South Korea
Constitution

The legal system of South Korea is a civil law system that has its basis in the Constitution of the Republic of Korea.

History[edit]

In old Korea, many disputes were settled by de facto, informal mediators like elder member of the community or family without making their way to the court.[1] 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.[2] 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. [1]

Judicial System[edit]

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[edit]

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[edit]

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[edit]

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[edit]

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[edit]

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 (JRTI), 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 (a council composed of Justices of the Supreme Court). 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", he retirement age is 65.

Prosecutors[edit]

The Korean legal system belongs to the Continental Inquisitorial system which is markedly different from the English adversarial system. Unlike the U.S. district attorneys, Korean prosecutors are similar to English Justices of the Peace or French procureurs de la Republique. According to Blackstone, Commentaries on the Laws of England, "the common-law tradition is one of live testimony in court subject to adversarial testing while the civil law condones examination in private by judicial officers".

Regarded as one of the most powerful legal professions, prosecutors are criticized for their reluctance to investigate corruption by powerful politicians or chaebol owners and perceived as biased.[3] The prosecutors govern the entire criminal procedure as they have the right to open or stop an investigation and the police is put under their command. There is no private prosecution or grand jury indictment as in some other countries.

In the past, [Korean prosecutors] have abused their extensive public powers to please power-holders. For example, the prosecutors have indicted many political dissenters on charges of violating the National Security Law..... The longstanding practice of misusing prosecutorial power to suppress political opposition has helped give Korean prosecutors a bad name.[4]

Criminal Procedures[edit]

Rules of Evidence[edit]

The Korean rules of Evidence confers a high probative value to so called suspect interrogation record 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."[5] This document is technically a hearsay under the English American legal system though and contains a record of 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 genuineness of the Record at a preparatory hearing or during the trial. If the suspect denies the genuineness, the Record could still be admissible if there is a circumstantial guarantee of trustworthiness. However, the Record made by a police officer is inadmissible if the Suspect denies the genuineness later in the process.[6]

The suspect can confirm genuineness by signing the Record at the end which then is presumed to have confirmed it. Another way to confirm is by substantial acknowledgement where the defendant verifies the content of the Record. The police produced Record is required to have the substantial acknowledgement.

Role of Counsel[edit]

Currently, the defense lawyers play a minimal role in the interrogation process. Defense counsels can be present during interrogation and can only object when the method of interrogation is unjust and the counsel can give opinion only after the interrogators approves.

Jury Trial[edit]

On January 2008, Korea began experimenting with a limited form of lay jury system.[7]

Civil Rights[edit]

Citizens of the Republic of Korea are guaranteed several rights by Chapter II of the Constitution. These rights include (but are not limited to):

  • freedom of speech, religion, assembly, and the press;
  • the rights 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 rights of education, work, marriage, and health

In addition to the rights granted in this section of the Constitution, two duties are imposed upon citizens of the Republic of Korea: the duty to pay taxes and the duty to enter into military service. In addition, Article 37(2) provides that the "freedoms and rights of citizens may be restricted by law only when necessary for national security, the maintenance of law and order, or for public welfare."

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 (especially communism) or joining anti-government organizations.[8] The Constitutional Court has narrowed the applicational scope of the National Security Act over the years.

Nevertheless, Korean activist lawyers had managed to become a formidable institution within Korea's legal system, in part due to the election of Roh Moo-hyun as president.[9]

Criminal Law[edit]

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 which 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.[10]

Due process[edit]

Both the Constitution and the Penal code contain provisions which 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 must be given assistance of counsel (selected or appointed), 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.[11]

The Korean Penal Code[edit]

The Korean Penal code is organized into 372 articles, further organized into 4 chapters of general provisions and 42 chapters of specific provisions. Adultery and abortion are both punishable by the Korean Penal Code.

Civil Procedure[edit]

Until recently there are few English literature written about Korean civil procedure.[12] The primary body of law on civil procedure is Korean Civil Procedure Act and the Korean Rules of Civil Procedure (KRCP). 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[edit]

After independence, the Japanese civil procedure law had 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. 2002 KCPA emphasized the pretrial phase and the concentration of the trial for the sake of efficiency as well as separating the civil execution from the KCPA.

Guiding Principles of KCPA[edit]

Article 1 of the KCPA stipulates that the court should strive to enhance fairness, speed and efficiency in civil proceedings.

Standing[edit]

Under the Civil Act, a natural or a juristic person have a party standing. An association and a foundation other than a juristic person can have a standing as a party if additional requirements are met.[13] They are (1) there is a decision making body, (2) representing organ that acts thereby creating and exercising and fulfilling the rights and duties of the organization, (3) assets separate from the assets of its members.

Jurisdiction[edit]

The district courts along with their branch courts have original jurisdiction over civil cases. A single judge presides over a case in controversy not exceeding 50 million Korean 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 the 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 and the defendant is deemed to have consented to the jurisdiction.[14]

For cases of international character, Korean Private International Law, also known as Conflicts of Laws determines the jurisdiction. A Korean court has jurisdiction when a party or a case in controversy has substantial relationship with Korea.[15] In determining the jurisdiction, the unique nature of international jurisdiction and the relevant clauses in Korean law should be considered as well.[16]

Venue[edit]

There are general and special venues under Korean civil procedure. The court at the defendant's domicile can hear the claims.[17] 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 is a multiple venues, the plaintiff can choose one of them to bring action.

Litigation Process[edit]

Filing a Complaint[edit]

A civil action begins when a plaintiff files a complaint, which sets out the alleged facts and remedy sought, with the court.[18] A complaint must state the parties, legal representative if any, the remedy sought and cause of actions.[19] The plaintiff can seek remedy such as damages, specific performance and injunctions. The three types of actions are performance, declaratory and formation claims.

Performance Claims[edit]

The action is to compel the defendant to perform or refrain from certain acts.

Declaratory Claims[edit]

The action is to have the court declare existence or absence of the legal relationship in controversy.

Formation Claims[edit]

The action is to create or change a legal relationship by a court order.

Service of Process[edit]

When a complaint is properly received by the court, the court serves the defendant with a duplicate of the complaint.[20] 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.[21]

Dismissing Complaint[edit]

The plaintiff can dismiss the case at any time before the defendant makes his pleading on the merit.[22] 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[edit]

This period is to clarify disputed facts and legal issues. The parties exchanges 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.[23] In an answer, the defendant can accept, dispute or remain silent about the allegations.

Judgement without a Trial[edit]

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 timely contest the complaints or remains silent, the court can regard it as acceptance or admission as well.

Trial[edit]

When the pre-trial period is over, the judge sets the date for a 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 could appoint a public defender for In forma pauperis.

Rules of Evidence[edit]

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 a very wide discretion on assessing relevance and materiality of evidence and virtually any type of evidence can be admitted to the court. Typically, documentary evidences tend to have higher probative value than oral testimony.

Witnesses[edit]

Unlike other countries, the party to the litigation cannot be a witness. Witnesses have a privilege not to testify if he or she has a justification. KCPA Article 315(1) lists attorneys, patent attorneys, notary public, certified public account, doctors, pharmacists and priests to have such privilege.

The witness is first examined by one party and cross examined by the opposing party, followed by re-direct and re-cross. The judge can also ask questions to the witnesses during the examinations. Leading questions are permitted only on cross-examinations and not others.[24]

Verdict[edit]

After the conclusion of the trial, the judge renders a judgment based on the evidences presented and law. The opinion of the court follows a highly structured format of (1) 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[edit]

When the decision is given, the losing party can appeal to the court above within 14 days after the judgement is served to that party or else the judgement 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 evidences.

After the appellate court makes decision, the parties can appeal to the Supreme Court. The Supreme Court hears a large number of appeal cases (about 8,859 in 2006) and sometimes rules on factual issues as well.

Res judicata[edit]

After the appeal process is over, the judgment is finalized and is binding.

Enforcement[edit]

The enforcement of civil judgements is dictated by the Civil Execution Act. Judgments rendered by a foreign court can be enforced.[25]

Private Law[edit]

Private Law issues in Korea are regulated by the civil code (민법,民法) and the commerce code (상법,商法). The civil code of Korea was enacted in 1960 and is based upon the Japanese civil code which was the used in Korea prior to the enactment.

Tort Law[edit]

Korean Civil Code Article 750 defines torts by stating "Any person who causes losses to or inflicts injuries on another person by an unlawful act, willfully or negligently, shall make compensation for damages."

International Laws and Treaties[edit]

Treaties ratified by the Republic of Korea have the same effect as domestic law, as stated in Article 6 of the Constitution. The Constitution gives the power to make treaties to the President, while the National Assembly has the right to consent to treaties made by the President. South Korea is currently party to several international agreements and organizations.

Constitutional Adjudication[edit]

Administrative Law[edit]

Gallery[edit]

See also[edit]

References[edit]

  1. ^ Lisa Blomgren Bingham, Sun Woo Lee and Won Kyung Chang (2007), Participatory Governance in South Korea: Legal Infrastructure, Economic Development, and Dispute Resolution, 19 Pac. McGeorge Global Bus. and Dev. L.J. 375, 381-2
  2. ^ http://www.scourt.go.kr/scourt_en/jdc_info
  3. ^ Kuk Cho, Litigation in Korea p 87
  4. ^ Jaewon Kim, The Ideal and the Reality of the Korean Legal Profession, 2 Asian-Pac. L. and Pol'y J. 45, 55-7 (2001)
  5. ^ Yong Chul Park, Does it Matter Who Wrote It?: the Admissibility of Suspect Interrogation Record Written by Prosecutors in Korea, Journal of Korean Law, Volume 6, Number 2, 181 (2007)
  6. ^ Korean Criminal Procedure Act Article 312
  7. ^ Ryan Y. Park, The Globalization of the Jury Trial: Lessons and Insights from Korea, American Journal of Comparative Law, Summer 2010
  8. ^ The Constitution of the Republic of Korea, Articles 10-39. Available at ICL: http://www.oefre.unibe.ch/law/icl/ks00000_.html
  9. ^ Patricia Goedde, From Dissidents to Institution-Builders: The Transformation of Public Interest Lawyers in South Korea, 4 East Asia Law Review (2009)
  10. ^ Cho, Kuk, "Korean Criminal Law: Moralist Prima Ratio for Social Control" . Journal of Korean Law, Vol. 1, No. 1, 2001 Available at SSRN: http://ssrn.com/abstract=289401
  11. ^ The Constitution of the Republic of Korea, Article 12.
  12. ^ Kuk Cho, Litigation in Korea p. 2
  13. ^ KCPA Article 52
  14. ^ KCPA Article 30
  15. ^ Korean Private International Law Article 2(1)
  16. ^ Korean Private International Law Article 2(2)
  17. ^ KCPA Article 2
  18. ^ KCPA Article 248
  19. ^ KCPA Article 249
  20. ^ KCPA Article 255(1)
  21. ^ KPCA Article 194
  22. ^ Article 266(2)
  23. ^ KCPA Article 256(1)
  24. ^ RCP Article 91(2), 92(2)
  25. ^ Sung Hoon Lee (2006), Foreign Judgment Recognition and Enforcement System of Korea, 6 Journal of Korean Law 1, 110

Further reading[edit]


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