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UPDATE: Overview of the North Korean Legal System and Legal Research

 

By Patricia Goedde

 

Patricia Goedde is an assistant professor at Sungkyunkwan University School of Law in Seoul, Korea. She received her PhD and JD at the University of Washington, Seattle, Washington, USA, and is a licensed attorney of the Washington State Bar Association.  Dr. Goedde may be reached at pgoedde@skku.edu.

 

This summary includes modified excerpts from her article Law “Of Our Own Style”: The Evolution and Challenges of the North Korean Legal System, 27 Fordham Int’l L.J. 1265 (2004).

 

Published March 2011
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Table of Contents

1.   Legal History

1.1 Japanese colonialism

1.2 Soviet tutelage

                  1.3 Marxist-Leninist influence

1.4 Juche doctrine

2.   Politico-legal Structure

                  2.1 Korean Workers’ Party

                  2.2 Supreme People’s Assembly

                  2.3 Supreme People’s Assembly Presidium

                  2.4 Courts

                  2.5 Procuracies

                  2.6 “Socialist law-abiding” committees

3.   Foreign Investment Laws and Regulations

                  3.1 Domestic Framework

                  3.2 Rason Economic and Trade Zone

                  3.3 Shinuiju Special Administrative Regions

3.4 Mt. Geumgang Tourist Zone

3.5 Gaesong Industrial Complex

3.6 International law firms in Pyongyang

4.  Legal Research

                  4.1 Print sources

                  4.2 Internet sources

 

1.   Legal History

Many forces shaped the legal character of the North Korean State (Democratic People’s Republic of Korea, or DPRK) before its birth in 1953: Japanese colonialism, Soviet auspices, and to some extent, the traditional Korean legal code. The Japanese dominated the legal structure in Korea during the colonial period of 1910-1945 primarily through laws, Japanese or Japanese-trained jurists, and police surveillance. Although Japan exerted pervasive control over the Korean population via law and police power, it did not impose Japanese law completely. The Korean legal system retained many provisions not related to the maintenance of public order, for example on issues related to kinship and succession.

 

Upon liberation of Korea in 1945, the North Korean leadership abrogated all existing Japanese laws but had to reinstate the same laws to maintain public order until new laws could be promulgated. The new law code of 1946 included revised Japanese provisions and a Soviet-based judicial structure. Soviet advisors in North Korea had a heavy role in drafting the 1948 DPRK Constitution along with numerous reform laws and ordinances. As leaders in the Soviet Civil Administration, these consultants were sensitive to North Korean aspirations, using a populist tone and emphasizing land reform in the Constitution. North Korean judicial practice started to follow a Soviet pattern in terms of court structure and the procuracy. For example, the courts exercised not only punitive powers but also had the duty to educate criminals and the public about being faithful to the law and the party. Similar to other Communist States, ordinary citizens served as people’s assessors on the bench alongside the judge.

 

Apart from Soviet legal practice, socialist theory had a significant impact on the North Korean legal system. North Korea initially adopted Marxist-Leninist principles in the name of socialism. Briefly, Marxist-Leninist ideology claims that law is a tool of the ruling bourgeois class, and that socialist law, an altogether different species of law, is the instrument of the proletariat dictatorship. North Korean leader Kim Il Sung preferred the Stalinist interpretation of law as a weapon to implement state policy. Kim Il Sung criticized domestic legal reformists who wanted to follow the de-Stalinization campaign of the Soviet Union in the late 1950s. Reformists wanted to prioritize equal application of the law, thereby subordinating party policy. Kim Il Sung purged the reformists from the courts, procuracy and the Korean Workers’ Party for being tainted with a bourgeois legal consciousness.

 

Although Marxist-Leninist ideology was the primary doctrine for the early North Korean state and society, this changed formally in 1972 when Juche philosophy, “a creative application of Marxist-Leninism to our own country’s reality,” was introduced in the Constitution. Juche is often translated simply as self-reliance or self-determination, but the concept is essentially a nationalist ideology of “North Korea first.” In 1992, reference to Marxism-Leninism in the DPRK Constitution was dropped altogether.

 

2.   Politico-legal Structure

The DPRK Constitution sets out the basic organization of the Party apparatus and reflects organizational changes throughout the years. The political structure of the North Korean State, as reflected in the Constitution, is set out in the following order:

 

  • Supreme People’s Assembly (SPA)
  • National Defense Commission (NDC)
  • SPA Presidium
  • Cabinet
  • Local People’s Assembly
  • Local People’s Committee
  • Public Procurators’ Office
  • Court

 

The Korean Workers’ Party (KWP) is the superstructure over all of these bodies. Kim Jong Il is the General Secretary of the KWP and also the Chair of the NDC, the de facto highest State organ in the DPRK since it prevails over the SPA. With candidates pre-screened by the KWP before election, the SPA serves more or less as a rubber-stamping vehicle for the KWP. The same applies to local people’s committees whose candidates are also pre-approved by the KWP before election.

 

The SPA Presidium actually holds more power than the SPA. Historically, Party officials of the SPA Presidium held higher rank than SPA chairmen. A reading of the Constitution demonstrates that the SPA Presidium’s prerogatives exceed those of the SPA. For example, the SPA Presidium convenes SPA sessions, interprets the Constitution and laws, issues decrees, and can create or liquidate Cabinet organizations. Meanwhile, the Chair and Vice Chair of the SPA Presidium hold concurrent positions in the SPA.

 

The courts and procuracies are accountable to the SPA Presidium or to the SPA in session. The tri-level court system consists of a Central Court, twelve provincial courts and approximately 100 people’s courts. A special court consists of the military court, which covers criminal cases under its jurisdiction. Lower courts usually have one judge and two people’s assessors, while appeal courts have three judges. Although, in principle, regional people’s assemblies elect the judges and people’s assessors, the KWP appoints all candidates. The procuracy structure resembles the court structure, with a Central Procuracy, provincial and county procuracies, and a separate military procuracy. Although procuracies investigate and prosecute crimes, procuracy offices also have the unique function of auditing other State organs and can try civil, divorce and mediation cases uncovered in the administrative process.

 

The courts and procuracies are dependent on the KWP, since the SPA Presidium has the authority to elect or transfer Central Court judges and people’s assessors, while the SPA can appoint or remove the Procurator-General and can elect or transfer the Chief Justice.  The same goes for lawyers. Legal consultants and representatives receive State salaries and are assigned clients by the local lawyers’ committee. On the whole, they represent the interest of the State, rather than the client whom they are expected to educate and persuade to confess.

 

The courts, procuracy, and lawyers do not alone assume the legal role of educating, disciplining and punishing citizens. Local people’s committees, work units, and fellow compatriots have the same function. In particular, “socialist law-abiding” committees instituted in people’s committees at all levels are more powerful than legal actors since they oversee the procuracy, police, and the State inspection agencies. Specifically, they check officials’ abuse of power, comment on laws, disseminate legal information, supervise work units and citizens in general, apply legal sanctions or delegate some of these functions to law-enforcement agencies at their discretion. For those who want to file complaints and petitions against any State agency wrongdoings, an administrative process exists where the relevant socialist law-abiding committee can decide appropriate punitive actions against officials guilty of any transgression. Furthermore, the concerned agency, enterprise or local party committee can organize a peer tribunal system to handle minor offenses and mete out punishments like fines, reprimands, or temporary suspensions of salary.

 

3.    Foreign Investment Laws and Regulations

The DPRK Supreme People’s Assembly promulgated the first Joint Venture Law in 1984, which was patterned loosely after China’s joint venture law, in an effort to resuscitate its economy by inducing foreign investment.  Thereafter, North Korea established the Rajin-Sonbong Free Economic and Trade Zone (now called Rason Economic and Trade Zone) in 1991, amended the Constitution in 1992 to specify that foreign investment would be permitted in special economic zones, and enacted the Foreign Investment Law, the Law of the DPRK on Contractual Joint Ventures, and Law of the DPRK on Equity Joint Ventures.  In 2002, North Korea enacted the Basic Law of Sinuiju Special Administrative Region, the Law of the DPRK on the Mt. Geumgang Tourist Zone, and the Law of the DPRK on the Gaesong Industrial Complex.

 

Each zone has a different legal personality and structure for foreign investment (i.e., economic and trade zone, special administrative region, tourist zone, and industrial complex), which demonstrates that North Korea does not have an overall cohesive legal regime for foreign investment purposes.  For example, most of the foreign investment laws and regulations enacted during the 1990s relate to investment in Rason ETZ only, but Rason has not been able to lure investors due in part to its location and poor infrastructure.  The Shinuiju SAR was modeled after the Basic Law of the Hong Kong Special Administrative Region with significant powers reserved to the SPA Presidium to interpret and amend the Shinuiju Basic Law, but it too has failed to transpire as a viable economic center.  Meanwhile, both the Mt. Geumgang Tourist Zone and the Gaesong Industrial Complex were specially negotiated between the DPRK government and the South Korean Hyundai conglomerate with the consent of the South Korean government. While Rason and Shinuiju have failed to attract the projected amount of foreign investment, the latter two have had relative success in garnering income for North Korea.  Gaesong Industrial Complex has had the most success in terms of attracting South Korean enterprises and manufacturing output, but its access and operation sometimes fall hostage to political relations between the two Koreas.

In response to dealing with potential foreign investors, two international law firms have a presence in Pyongyang:  Hay, Kalb & Associates, and Chiomenti (formerly Birindelli e Associati).

4.   Legal Research

Legal materials on North Korea in the English language are not readily available to the general public, with the exception of a few law journal articles. However, U.S. libraries specializing in Asian legal materials may hold at least some of the following texts:

 

For a print source of major North Korean laws and regulations (in Korean), see Chosŏn Minjujuŭi Inmin Konghwaguk pŏpchŏn: taejungyong [조선민주주의인민공화국법전: 대중용] (P’yŏngyang: Pŏmnyul Ch’ulp’ansa, 2009).  The contents of this legal code are also available in an online subscription database called CNC Pukhan Haksul Chŏngbo, available here  (in Korean only).

 

For a print source of foreign investment laws and regulations (in Korean and English), see Chosŏn Minjujuŭi Inmin Konghwaguk pŏpgyujip [조선민주주의인민공화국법규집: 외국투자부문]: Laws and Regulations on Foreign Investment – Democratic People’s Republic of Korea (P’yŏngyang: Pŏmnyul Ch’ulp’ansa, 2006).

 

For laws and regulations governing the Gaeseong Industrial Complex (in English), see 2011 Code of the Act and Regulations for the Kaesong Industrial Zone (Seoul: Ministry of Unification, 2011).

 

For a guide on researching North Korean legal history, see Sung Yoon Cho, Law and Legal Literature of North Korea: A Guide (Washington, D.C.: Library of Congress, 1988).

 

For a general overview of the North Korean state and society, see Yonhap News Agency,  North Korea Handbook, translated by Monterey Interpretation and Translation Service (Armonk, N.Y.: M.E. Sharpe, 2003).

 

Several internet sources also provide primary and secondary materials on North Korean laws/regulations and related topics but may not cite the most recent legislation:

 

 

References

  • Socialist  Constitution of the Democratic People’s Republic of Korea (1992)
  • Charles K. Armstrong, The North Korean Revolution 1945-1950 (2003)

·       Patricia Goedde, The Basic Law of the Sinuiju Special Administrative Region: A Happy Medium Between the DPRK Constitution and the Hong Kong Basic Law?, 3 J. Korean L.  77 (2003) [with translation]

·       Gi-Hyoung Oh, The Legal Framework of the Gaesung Industrial Complex, 5 J. Korean L. 21 (2005)

  • Robert A. Scalapino & Chongsik Lee, Communism in Korea (1972)
  • Dae-Kyu Yoon, North Korea, in Legal Systems of the World (Herbert M. Kritzer ed., 2000)
  • Yonhap News Agency, North Korea Handbook (Monterey Interpretation and Translation Services trans., 2003)