South Korea Table of Contents
Throughout Korea's history, the assimilation of foreign laws has taken place in waves. Korea assimilated the codes of the Chinese Qin, Wei, and Tang dynasties in the early Three Kingdoms period, the codes of the Tang, Song, and Yuan dynasties in the Koryo period (918-1392), the Ming Code in the Choson Dynasty (1392-1910) period, Western civil law at the close of the Choson Dynasty and during the Japanese occupation, and both Continental Law and Anglo-American law after liberation in 1945. The Choson Dynasty also produced numerous codifications of Korean law and created new laws as necessary to deal with economic, social, and other public policy issues. Confucian values exerted strong influence on Korea's traditional law.
With the end of the Choson Dynasty in 1910, decisive changes occurred in Korean law. Traditional Korean institutions were suddenly replaced. Reform measures, characterized by the introduction of Western institutions, began with the Kabo Reforms (1894-95) forced on Korea by Japan and modeled on the Japanese reforms of the Meiji Restoration (1868). These hasty reforms produced many laws translated from Japanese codes, which in turn had their origins in Roman and Germanic laws. The imposition of institutions by the Japanese and their post-1910 use for repressive colonial control constituted a sharp break with the Korean past.
The Westernized legal system's key features included its origin in the European civil law tradition; prominent roles for legal scholars, university professors, and legislators, rather than judges; codified law rather than precedent as the major source of law; and an inquisitorial rather than adversarial court procedure. In other respects, however, Japanese colonial rule continued several features of the traditional Korean legal order. Under Japanese colonial rule, for example, there was no constitutional law, no guarantee of rights, and no judicial review of the exercise of political power. The legal system of Korea under Japanese rule was composed essentially of rules, duties, and obligations. Further, there was little institutional or procedural separation of powers. The Japanese governor general had even greater executive and legislative power than traditional Korean kings and ruled through a large, efficient, and modern bureaucracy.
After independence, revulsion over the Japanese occupation motivated Korean officials to devise a new codification designed to replace all Japanese laws, decrees, and orders, as well as the regulations and decrees of the United States Army Military Government in Korea (1945-48) with Korean codes. The process took ten years. Eventually, the Criminal Code (1953), the Code of Criminal Procedure (1954), the Civil Code (1958), the Civil Procedure Law (1960), and the Commercial Code (1962), as well as other codes--deliberately distinguished from previous Japanese codes--were adopted. In most substantive areas, however, South Korean law retained the most fundamental principles and procedures of continental jurisprudence as originally received through Japan.
The Code of Criminal Procedure (1954) governed most aspects of the enforcement of criminal justice. The code retained the basic characteristics of the European continental legal system and had some features of Anglo-American law. Among the features adapted from the United States legal system were a requirement for judicial warrants; modification of preliminary examination; strengthening of the system of state-appointed counsel; rejection of hearsay evidence as a matter of rule; and a requirement for corroborating evidence obtained in confessions.
The first exclusionary ruling on a confession in a South Korean court based on the constitutional guarantee of the right to legal counsel occurred in late 1989. Law enforcement and security agency officials, however, did not consider themselves compelled to adhere to legal precedents or court rulings when subsequently investigating other cases. Police and prosecutors, especially in political or espionage cases, still limited the frequency and length of defendants' meetings with counsel, except when taking written statements. Legislative action was needed for the South Korean system to proceed beyond court redress of specific violations in specific cases to the establishment of general guidelines.
Data as of June 1990
South Korea Table of Contents