Overview of Korean Law

1. Overview of Korean Law John Ohnesorge University of Wisconsin Law School February 2, 2004

2. 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

3. 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?)

4. 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

5. 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

6. 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

7. 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

8. Contrasts: Law in Society • Very limited legal profession • Very limited legal education • Very limited scholarly tradition of categorization, systematization, abstraction, perfection, of law

9. 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”

10. Who Used the Contrasts?

11. 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

12. 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

13. “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

14. 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

15. 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

16. Questions? • What’s Professor Choi’s own framework?

17. 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

18. 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

19. Questions? • BREAK

20. 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

21. 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 -

22. 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”

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

24. 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

25. 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”)

26. Law in Society (cont.) • Judiciary under control of Executive • Judiciary not in control of Prosecution • Judicial corruption serious • Prosecutorial corruption serious

27. Implications for Law & Development? • Questions? • Weber’s Formal Rationality? • Rights-based society? • Rule of Law? • Human rights? • “Comprehensive development”?

28. 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)

29. Towards Liberal Legality? (cont.) • Litigation rates rising • “Rights consciousness” up • Obedience to law down • Respect for legal institutions down

30. Questions/Comments? • Good? Bad? Inevitable “modernization”?

31. Wrap-up • Questions? • Next week: administrative law in the Developmental State, and after • Following week: Chaebol and corporate governance