By Hyeon-Cheol Kim and Inyoung Cho
Update by Hyeon-Cheol Kim
Published January /February 2010
Table of Contents
This guide aims to provide a brief introduction of the Korean legal system and some of the most useful resources of web-based databases for research on Korean law. The Republic of Korea (South Korea) is one of the countries with the highest penetration of high-speed internet access, and those who search for legal information can easily attain enormous resources for Korean law through the internet. However, most of the web-based resources are provided in Korean. Thus, this article tries to enlist as many websites in English or with English translation as possible for foreign users. For those who have a good command of Korean, some useful websites in Korean will also be listed.
The Korean legal system has changed continuously. First of all, a jury system was adopted in criminal procedure. It is not the same as U.S. jury system. The cases for which the jury system is available are limited to capital crimes such as murder, rape, robbery and so on. Defendants have an option whether to go to a jury or to judge. In addition to whether the defendant is guilty or not, the jury can offer its opinion about the sentence of the case, but the judge of the case is not bound by the jury’s verdict and opinion about sentence. In such cases, the judge should explain the reason why he made a different decision about conviction.
Another big change was that a law school system similar to that in the U.S. was established. Those who want to be a lawyer should go to law school on graduate level for 3 years. In the near future lawyers who graduate from law schools in Korea will come out and practice.
Judicial tradition of Korea dates back to B.C. 2333, when Kojoseon, the first state established in Korea promulgated the Eight Article Law. The first modern written Constitution was introduced to Korea in July 1894. However, any free-willed judicial reform in Korea was disrupted during the Japanese colonial period. After independence from Japan, the Constitution of the Republic of Korea was declared in 1948. Thereafter the Constitution was amended several times in response to political and social changes. The current Constitution is the outcome of the latest amendment in 1987. The Constitution stipulates the separation of powers among the three branches: legislative, executive, and judicial. The president and the government are in charge of the administration, the National Assembly is responsible for the legislation, and the Court enforces and interprets laws by making decisions over legal disputes. In terms of the general legal system, Korea adopted the modern European civil law system at the beginning of its judicial modernization. However, with the growing interchange and influence of overseas countries, some laws were made or revised modeling Anglo-American law systems. Thus, Korean legal system features the harmonization of both the European civil law system and Anglo-American law system.
There are 6 types of courts in Korea, which are the Supreme Court, the High Courts, the District Courts, the Patent Court, the Family Court, and the Administrative Court. The District Courts, the High Courts and the Supreme Court are the courts for the basic three-tier system. The Patent Court is on the same level with the High Courts, and the Family Court and the Administrative court are on the same level with the District Courts. For more detailed information on the organization of the Court, refer here. Apart from the general courts, Korea has a European-type Constitutional Court which adjudicates on the constitutionality of laws, impeachment, dissolution of a political party, competence dispute, and constitutional complaint. The history, organization and procedure of the Constitutional Court are introduced on its website.
Written laws are the primary sources of law in Korea. Written laws may be divided into four main categories : first, statutes passed by the legislature; second, decrees issued by the President, cabinet, various ministries, the Supreme Court and the Constitutional Court; third, rules and regulations by government agencies and local government; and fourth, international agreements. According to the Constitution, treaties duly concluded and promulgated under the Constitution and the generally recognized rules of international law have the same effect as the domestic laws of the Republic of Korea (Article 6.1.).
Generally speaking, the Constitution is on top level and then statutes by the National Assembly follow. Statutes are enacted through the procedure based on the National Assembly Act by congressmen. The structure of the National Assembly is one tier system, while that of the U.S is two tiers - the Senate and the House of Representatives.
The realm of the Statutes is not specifically limited, though the Constitution has several mandatory rules on statute matters the National Assembly should make. Since there are no federal and state governments in Korea, the constitutional law doesn’t have to divide and clarify which areas the federal government have control and responsibility.
Statutes can be categorized in many ways. One method is to divide them into public and private law.
Public statutes have at least more than one relevant government ministries.
Statutes are generally abstract and often commit its subordinate regulation to the government. The President as a head of the government has the power to enact presidential ordinances within the statute. Each minister also has the power to enact rules and regulations under statutes and the presidential ordinances.
The National Assembly of the Republic of Korea is entitled to propose and decide upon the Amendments to the Constitution, to enact and amend statutes, and to consent to the conclusion and ratification of the treaties. Its website contains a full-text database of statutes, rules, decrees, and proposed bills. Full-texts of the English translation of the Constitution, some foreigner-related laws, and recently enacted laws can be searched.
The Ministry of Government Legislation (MOLEG) is responsible for the legislative affairs of the executive branch of the government. All the current and chronological statutes and regulations as well as the authoritative interpretation of them are available via the MOLEG’s website. It also provides English translation of the Constitution and some economy-related laws. The Ministry of Government Administration and Home Affairs is responsible for publishing and distributing the Official Gazette (관보, ‘Kwanbo’). The official gazette includes official notices on all new statutes, treaties, decrees and regulations. The electronic official gazette can be found on a daily basis at this website. The compilation of all the legislations and treaties in print can be found in Daehanminguk Hyonhaeng Beomnyongjip (대한민국현행법령집, Current Statutes of the Republic of Korea, C.S.) published by MOLEG.
In Korea there is no codification system like that of U.S. in which enacted laws are divided and codified under 50 categories. But in C.S., the books are divided and categorized according to subjects. Now using keywords in search engines, people can search for relevant laws easily. This service is available on the site of MOLEG above and ‘The integrated legal information’ service (refer to the explanation in B.1).
The most comprehensive collection of Korean legislation in English can be obtained on the Korea Legislation Research Institute’s website. Although it requires a membership fee and payment for data, it has the largest collection of Korean laws in English, comprised of about 800 statutes including the Constitution, major enforcement decrees, and regulations. The Global Legal Information Network (GLIN) also provides official texts of about 2,800 statutes and regulations. Most of the texts are in Korean, but the summary of each law is attached in English.
The Korean government has 18 Bu (ministries). The President and each ministry have the power to make ordinances, rules, and regulations within the statutes. You can see the organization chart of ministries and connect to each one on Korea.net. If you visit the website of the Ministry of Finance and Economy through that website, for example, you will find information on some legal matters of finance, tax, foreign investment, or labor in English. Rules and regulations of ministries are also published in C.S. You can also find them using keywords in the sites of MOLEG and ‘The integrated legal information’ service.
Article 6 of the Korean Constitution prescribes that ‘treaties duly concluded and promulgated under the Constitution and the generally recognized rules of international law have the same effect as the domestic laws of the Republic of Korea’. The list of bilateral and multilateral treaties that Korea has signed and ratified can be obtained in the website of the Ministry of Foreign Affairs and Trade.
According to Article 8 of the Judicial Organization Act, a higher court’s decision in the judicial hierarchy prevails over that of the lower court’s decision only on the specific case concerned. The higher court can uphold, reverse, or remand the judgment of the lower court based on both its own fact-finding or legal interpretation, while the Supreme Court can do that only by legal interpretation.
According to the Constitution, the Court has the power to interpret rules and regulations of the governmental bodies when it comes to specific administrative cases and make a decision on whether they are against the Constitution and statutes, and whether they deviate from the commitment of the statutes. In doing so, the court decision can invalidate rules and regulation and set up new ones substantially.
In civil cases, private laws such as civil law, business law and so on are also ambiguous and vague. They don’t have the relevant ministry and so there are no subordinate rules, generally speaking.
Applying the abstract private law to specific cases, the court makes it clear and supports its deficiency.
There is no principle of stare decisis or precedent in Korean legal system. However, the lower courts tend to follow the legal interpretations ascertained by the Supreme Court of Korea in actual practice. In conclusion, the Supreme Court decisions are regarded as the secondary source of law.
So finding proper Supreme Court decisions is one of the important parts of lawyers’ work.
Publication of the Supreme Court decisions is managed by the Supreme Court Library of Korea, which is a branch institution of the Supreme Court. It issues and prints the Publication of Cases (판례공보, ‘Pallye Kongbo’) every two weeks and Index of Cases every year.
The Supreme Court of Korea is providing affluent contents on its website called ‘The integrated legal information’. It offers the court decisions, laws, journals, and other useful legal services, like Westlaw, for free. The Supreme Court also runs the Supreme Court Library, which is a judicial institution that serves as the most extensive judicial resource. Its website displays a wide range of information on laws, court decisions, legal history, etc. The above-mentioned websites are offered mostly in Korean, while some court decisions and other information are in English.
The Supreme Court Library also releases a ‘Bubgoul’ DVD every year. ‘Bubgoul’ means ‘law town’ in Korean. It comprises all the decisions of the district, appellate and Supreme Court cases, statutes, regulations, decrees, and journals. You can purchase it from the Ministry of Court Administration, and update it through the Supreme Court Library’s website. As explained in part 3, there is a Constitutional Court in Korea which has the power to interpret and decide whether the enacted statute by the National Assembly is against the Constitution or not. Its website provides the judgments of that court in English.
LAWnB is one of the most reputable database service companies. It comprises complete statutes, recently revised laws, proposed bills, treaties, legal terminology, and cases of the Supreme Court, the Constitutional Court and other lower courts. It provides search engines for legal dissertations, commentaries, treatises, periodicals, and legal forms. The delivery service of full-text articles from 180 Korean research journals is also available via the Korea Research Information service. This is one of the most popular sites for legal professionals dealing with real cases. Registration for free basic legal information is available via e-mail.
Some websites provide in-depth information on a specific area of law. One of those sites is SamilI.com. This is a very useful site specifically for tax related laws and issues.
The followings are some of the most famous law journals in Korea.
· Bupjo (Korean Lawyers Association Journal); published monthly by Lawyers Association, the chairman of which is the Chief Justice of the Supreme Court.
· The Justice; published monthly by the Korean Legal Center. Its articles are also provided online on its website.
· Buphak (Seoul Law Journal); published quarterly by the Law Research Institute, Seoul National University. The articles are also provided online on its website.
· Journal of Korean Law; published twice a year by the Law Research Institute of Seoul National University. It provides articles on current legal issues of Korea in English. Annual subscriptions are available to foreign subscribers for US $50. Online articles are also available here. The article on the ‘Introduction to Korean Legal Materials’ in Vol 2, No. 1, 2002, will be a very useful guide for the foreign researchers who want to find out about Korean legal materials.
If you want to get materials like law reviews or theses for more academic purposes, the sites mentioned below would be helpful.
The National Library of Korea and the National Assembly Library have vast databases on all academic fields, let alone laws. These are public institutions managed and sponsored by the government, providing copy services via mail by fax orders.
KSI is a private company which offers indexed databases of over 740,000 full-text scholarly journal articles, dissertations and research papers from academic research institutions. In this site, you can search for necessary materials and read them on-line.
DBPIA also offers full-text databases from over 200 Korean journals in various fields. Free search is available for a limited time.
RISS provides 150,000 full-text scholarly articles for free and 300,000 purchasable articles through databases.
The ‘Lawtimes,’ one of the legal newspaper companies in Korea, provides the legal news on daily bases.
After passing the bar exam, 2 years of training courses in the Judicial Research & Training Institute (JRTI) are required for an individual to be able to join the bar in Korea. The JRTI is managed by the Supreme Court. Teachers are comprised of renowned lawyers, prosecutors and judges. The trainee who finishes the training course is permitted to the bar and can apply for the position of a judge or a prosecutor.
There will be reform in this judicial education system in the near future, since the law school system similar to that of U.S. has been adopted in 2007 and will be effective from next year. You can see the current news about it and the general lifestyle of lawyers-to-be from JRTI’s website.
Currently, the Colleges of Law are in charge of the legal education in Korean Universities. However, starting in 2008, U.S. style law schools will be launched in some limited number of universities, and only the graduates of those law schools will be entitled to take a bar exam. The other colleges of law will still remain, focusing on more scholastic legal studies. Some of the most renowned colleges of law in Korea are as follows:
There are many useful websites providing Korean legal information, managed by private companies or individuals. Some offer case laws, law reviews, and their own analyses. But most of them are designed for Korean legal professionals, not for foreigners. The following are the websites in English or in Japanese giving you some introductory information about the Korean legal system with some useful websites’ addresses related to Korean legal resources:
· The U.S. Library of Congress also provides brief information on the Korean legal system.
The articles or books below will also be helpful for your Korean legal research:
· Yong–Hee KIM, ‘Introduction to Korean legal Materials’, Journal of Korean Law vol 2. no.1, Seoul National University, Law Research Institute, 2002
· Sang-Hyun SONG (ed.), Korean Law in the Global Economy, Seoul, Pakyoungsa ,1996
· Chin KIM, Korean Law Study Guide, 2nd ed., San Diego, CA, Cross-Cultural Associates, 1995
Although there is a growing number of websites in English, most of the law-related websites are still in Korean. Therefore we recommend that people who have deep interest in Korean law should study the basic Korean legal terminology and Korean, as you can access free and uncountable amounts of information on the Korean legal system through the internet.
Also, as mentioned above, the Korean legal system is facing a drastic procedural and substantive change in the near future. Thus you should keep a sharp eye on the continuous updates of information on the Korean legal system.