The legal system of South Korea is a civil law system that has its basis in the Constitution of the Republic of Korea. The Court Organization Act, which was passed into law on 26 September 1949, officially created a three-tiered, independent judicial system. The revised Constitution of 1987 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." The 1987 rewrite also established the Constitutional Court, the first time that South Korea had an active body for constitutional review.
The Korean judicial system is based on a continental style inquisitorial system, which is markedly different from the English adversarial system. Like Chinese prosecutors and Japanese prosecutors also, Korean prosecutors directly or indirectly conduct criminal investigations. Another departure from the British/American system is the admissibility of suspect interrogation records produced by the prosecutors without defense counsel being present. A confession made without assistance of legal counsel is admissible if the suspect confirms the authenticity of the record at a preparatory hearing or during the trial. If the suspect denies its authenticity, the record could still be admissible if there is a circumstantial guarantee of trustworthiness. However, a record made by a police officer is inadmissible if the suspect denies authenticity later in the process.
Both the Constitution and the Penal Code contain provisions that 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 is a flight risk or might destroy 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 be given assistance of counsel and have the right to petition the court for habeas corpus.
Citizens of the Republic of Korea are guaranteed various civil rights and protections by Chapter II of the Constitution, which also imposes the duties of military service and taxes. These rights can be suspended however, for the purposes of social order and national security. The National Security Act prohibits "anti-government activities", which effectively criminalizes activities such as promoting anti-government ideologies (especially communism) and joining anti-government organizations.
History In Korea, many disputes were settled by de facto, informal mediators like elder members of the community or family without making their way to the court.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 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. 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.
Judicial system
The judicial system of the Republic of Korea is composed of the Supreme Court of Korea, the Constitutional Court of 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.
Basic rights
Citizens of the Republic of Korea are guaranteed several basic rights(fundamental rights) by Chapter II of the Constitution. These rights include (but are not limited to): freedom of speech, religion, assembly, and the press; the right 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 right to 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. The Constitutional Court has narrowed the applicational scope of the National Security Act over the years.
Nevertheless, Korean activist lawyers have managed to become a formidable institution within Korea's legal system, in part due to the election of Roh Moo-hyun as president.
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 that 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.Cho, Kuk. "Korean Criminal Law: Moralist Prima Ratio for Social Control". Journal of Korean Law, Vol. 1, No. 1, 2001.
Due process
Both the Constitution and the Penal Code contain provisions that 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 is a flight risk or might destroy 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 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.The Constitution of the Republic of Korea, Article 12.
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. Abortion is restricted under the Korean Penal Code; however, the Constitutional Court of South Korea has ruled the criminalization of abortion as unconstitutional, causing the provision to lose effect by the end of 2020.
Criminal procedure
Rules of evidence
The Korean rules of evidence confer a high probative value to so-called suspect interrogation records 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".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) However, this document is technically hearsay under the English American legal system and contains a record of a 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 authenticity of the record at a preparatory hearing or during the trial. If the suspect denies its authenticity, the record could still be admissible if there is a circumstantial guarantee of trustworthiness. However, a record made by a police officer is inadmissible if the suspect denies authenticity later in the process.Korean Criminal Procedure Act Article 312
The suspect can confirm authenticity by signing the record at the end, at which time it is then presumed to be confirmed. Another way to confirm is by substantial acknowledgment where the defendant verifies the content of the record. A police-produced record is required to have substantial acknowledgment.
Prosecutors The Korean legal system belongs to the continental inquisitorial system, which is markedly different from the English adversarial system. It was modeled after European continental systems such as German and French judicial structure. Like Chinese prosecutors and European and Japanese prosecutors, Korean prosecutors directly or indirectly conduct criminal investigations. They involve themselves in judicial procedure by conducting investigations, determining indictable cases, and the prosecution process.
Korean prosecutors have contributed to successful prosecution of many highly ranked officials and renowned conglomerate business leaders, including two former presidents (1995) and sons of incumbent presidents (1997 and 2002 respectively). Especially in 1997, the South Korean prosecution service contributed to the imprisonment of the son of the incumbent president, Kim Hyeon Chul, which happened for the first time in world judicial history. As the result of successful, even relentlessly fair probings and prosecutions of corporate crimes, they often face criticism from corrupt politicians and business leaders as to whether prosecutors' application on laws may be too severe and harsh.