Overview of Korean Law

John Ohnesorge

University of Wisconsin Law School

February 2, 2004

Readings

• Development of Law and Legal Institution in Korea, by Professor Choi, Dae-kwon (“chay day kwon) 1980

• Chapter V: Legal Professions and Judicial Independence, in Law and Political Authority in South Korea, by Professor Yoon, Dae-Kyu, 1990

• The Changing Landscape of Civil Litigation, by Professor Kim, Jeong-Oh (Chapter 14 of Recent Transformations in Korean Law and Society, Yoon Dae-Kyu, editor) 2002

Part I: Law and Legality in Choson (Yi) Korea (1392-1910)

• Ultimate model was Codes of China’s Tang dynasty (7th-9th centuries)

• Direct model China’s Ming dynasty (14th-17th centuries)

• Primary function of law was to regulate society in accordance with Confucian ideology (inherent contradiction?)

Political/Legal Structure

• Centralized, highly-organized bureaucratic State

• State in theory omnipotent, but in practice didn’t fully penetrate society, and relied upon non-State actors (clans, villages, local elites, etc.)

• Lots of law, but no Law

Contrasts with Western Legal Ideals: Private Law

• Very limited amount of positive, State-created law addressing contract, tort, property, commercial obligations, etc.

• Little ideological commitment to classical Liberal values of “private sphere,” freedom of contract, private property, legal individualism

• “Private law” not exempt from dominant Confucian value system

Contrasts: Public Law

• No de jure separation of powers, or checks-and-balances

• No constitutional law in sense of justiciable rights against the State

• No “external” administrative law in sense of justiciable rights against bureaucracy

Contrasts: Dispute Resolution

• No independent judiciary

• Limited separation between adjudication and other governance functions (magistrate)

• Disincentives to bringing private disputes to State adjudication

• Difficulty in controlling adjudication

Contrasts: Law in Society

• Very limited legal profession

• Very limited legal education

• Very limited scholarly tradition of categorization, systematization, abstraction, perfection, of law

Who Identified the Contrasts?

• 18th & 19th Century Western observers of Asia. Problems:– Law on Books vs. Law in Action– Desire to Justify Imperialism– Confucian “informants”– Western-trained Asian “informants”– Non-sociological/anthropological/functional

definition of “law”

Who Used the Contrasts?

Max Weber’s Picture of Chinese (Korean) Law

• In Religions of China

• Substantive rationality vs. Formal Rationality– Confucianism the substance

• “Kadi justice” by Magistrate

• Insufficiently predictable, calculable for purposes of modern capitalism

Weber’s Law and Economics

• Modern capitalism tends toward formal, not substantive rationality

• Formal rationality demands clear rules, knowable in advance, to maximize private autonomy

• Rules developed according to internal logic of the legal system, by legal experts (formal, eschews substantive, non-legal values)

• Judging in formally rational system is mechanical/technocratic application of law to facts

“Weberian” critique of Korean law

• Not conducive to modern, industrial capitalism (substantive rationality, “kadi justice”)

• Suitable only for petty, market economics

• Helps explain economic “backwardness,” failure to naturally evolve toward capitalism

Enduring Importance of Weber

• Sounds right, to lawyers and economists

• Connects legal system attributes to economic performance in understandable way

• Justifies treating legal reform as technical economic reform

Critiques of Weber

• Wrong about extent of private law in Asia• “Old”-Euro-centric (England problem)• Overstated importance of private law to

commerce (Macaulay)• Traditional system also conducive to

development under right circumstances:– Civil service, education, nationalism– Societal substitutes of private law

Questions?

• What’s Professor Choi’s own framework?

Part II: Colonial Korea (1910-1945)

• Inactive public law• Law as tool for implementation of

authoritarian colonial policies• Imposition of highly modern, “Weberian”

private law (cadastral survey, e.g.)• Introduced use of modern legal forms in

commerce• Legal education for cadre of Korean elites

Lasting Legacies of Colonial Experience

• Modernized Korean law• Fixed Civil law orientation

– Codes, bureaucratic judiciary, legal education, legal profession

• Law tainted by association with authoritarianism (reinforced cultural aversion)

• But, lawyers not all collaborators

Questions?

• BREAK

History Refresher

• Japanese Colonization (1910-1945)

• US Occupation (1945-1948)

• Syngman Rhee Government (1948-1960)

• Rhee falls Spring, 1960

• Chang Myon Government 1960-1961

• Park, Chung-Hee coup 1961

History (cont.)

• Park assassinated 1979 (18 years later)

• Chun, Doo-hwan 1980-1987

• 1987 Constitution, Elections

• Roh (Noh), Tae-woo President 1987-1992

• Kim, Yong-sam 1992-1997

• Kim, Dae-jung 1997-2002

• Noh, Moo-hyun 2002 -

Part III: Law in the Developmental State (1961- 87)• Readings: Choi (1980); Yoon (1990)• Authoritarian, military governments throughout (Park,

Chun)• Cold War, North Korea, security relationship with

U.S. dominate• Massive U.S. aid early on• Import-substitution > export-oriented• light > heavy• Rise of the Chaebol• “Industrial Policy”

Private Law

• Formal law localized, evolved with U.S., German, Japanese influences

Public Law

• Constitutional law suppressed (individual rights; “Weimar,” social welfare aspects)

• Administrative law minimized• Executive Decrees predominate over legislation• Economic regulation (antitrust, labor,

environmental, foreign investment, IPR, etc.) subservient to Chaebol-led, export-oriented industrialization

Law in Society

• Highly elite legal profession, but• Very, very few lawyers (even defined broadly to

include scriveners, tax advisers)• Judicial exam as numerical control on profession,

autonomy of law, NOT for minimal competency• Systematic disincentives to litigation (legal fees,

court costs, weak “discovery,” prolonged “trials”)

Law in Society (cont.)

• Judiciary under control of Executive

• Judiciary not in control of Prosecution

• Judicial corruption serious

• Prosecutorial corruption serious

Implications for Law & Development?

• Questions?

• Weber’s Formal Rationality?

• Rights-based society?

• Rule of Law?

• Human rights?

• “Comprehensive development”?

Part IV: Post-1987 (Towards Liberal Legality?)

• Reading: Kim (2000)

• Executive branch loosing dominance vis-à-vis Congress, prosecutors, courts

• Constitutional Court, established 1987, actively asserting itself

• Judicial exam passers increased dramatically (relative to existing practice)

Towards Liberal Legality? (cont.)

• Litigation rates rising

• “Rights consciousness” up

• Obedience to law down

• Respect for legal institutions down

Questions/Comments?

• Good? Bad? Inevitable “modernization”?

Wrap-up

• Questions?

• Next week: administrative law in the Developmental State, and after

• Following week: Chaebol and corporate governance