Law of South Korea

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South Korea

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

Contents

History

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

Korea was a feudal society and had King's official supreme powers until after the Korean War, when elements of a legal system were introduced by the United States, as they did in Japan by influencing the writing of the Constitution.

The judicial system of South 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 feb 2nd 2008 a limited system of juries has been adopted 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. In the System of Justice 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

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 the Justices of the Supreme Court). Judges serve terms of 10 years, and may be re-appointed to their positions. The Constitution states that judges may not be removed from their offices except through impeachment, conviction of a crime and sentencing to imprisonment, or should they be unable to discharge their duties due to serious mental or physical impairment.

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.

Civil Rights

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

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.[1]. 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.[2]

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 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. [3]

Due process

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.[4]

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. Adultery and abortion are both punishable by the Korean Penal Code.

Private Law

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.

International Laws and Treaties

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.

Gallery

See also

References

  1. ^ The Constitution of the Republic of Korea, Articles 10-39. Available at ICL: http://www.oefre.unibe.ch/law/icl/ks00000_.html
  2. ^ Patricia Goedde, From Dissidents to Institution-Builders: The Transformation of Public Interest Lawyers in South Korea, 4 East Asia Law Review (2009)
  3. ^ 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
  4. ^ The Constitution of the Republic of Korea, Article 12.