Historical context
2.1 Kojoseon Dynasty and the beginning of Korea’s legal tradition
Delving into the legal past of a nation is a highly meaningful task in attaining a deeper understanding of the present legal system.
It is noteworthy that Korea has had a long tradition of written law under the ideal of the rule of law.Korean history is said to have begun in 2333 BCE, when the first dynasty, Kojoseon, was founded. The legal tradition of Korea is as old as this, for Kojoseon had its own statutory law. This law consisted of eight articles, of which only three remain today. These articles stipulated capital punishment for murder, compensation with grains for personal injury, and the enslavement of thieves. Ever since, Korean dynasties throughout history have had their own legal systems and written laws, demonstrating the nation's long tradition of statutory law.
Yet it is not the purpose of this chapter to go through all the legal systems of the numerous dynasties that have existed in the history of Korea. It suffices to start with the Joseon Dynasty, the last dynasty, established a little more than 600 years ago.
2.2 Joseon Dynasty and the pre-colonial period
The Joseon Dynasty (1392-1910) was founded by Yi Seonggye, who was a main figure in the overthrow of the preceding kingdom of the Goryeo6 Dynasty
3 Y Kwon, �Litigating in Korea: A General Overview of the Korean Civil Procedure', Journal of Korean Law, vol. 7, no. 1, 2007, p. 109.
4 ibid.
5 ibid.
6 �Goryeo' is the name from which the English name �Korea' has been derived. (918-1392). While Buddhism had been the key religion and ideology during the prior Goryeo period, Confucianism was the ideology that supported the Joseon Dynasty.[407] It was so strong that its effects still linger to a certain extent in Korean society today.[408] Joseon strived to spread this ideology throughout its reigning period, and this Confucianisationprocess immenselyinfluenced the overall shape of the social system and culture.
The dominance of Confucianism could have undermined the significance of the statutory laws in the dynasty. However, the founding fathers of Joseon did not ignore the legal foundations necessary for their kingdom. The first king of the dynasty, King Taejo, promulgated the Six Codesfor Governing the Country (Kyeongje Yukcheon) in 1397, five years after the establishment of the dynasty. Unfortunately, the exact contents of these Codes are unknown at this point. However, the contents of the second large-scale codification of the Great Codefor Governing the Country (Kyeongguk Taejeon) are still available.[409] It was in 1484, during the reign of King Seongjong, that the Great Code was compiled and came into effect.[410] This Code remained the core framework of the legal system throughout the Joseon Dynasty. Law in the dynasty was not just a superficial tool, but was actually drafted and used under consistent principles. In this sense, Korea was not unfamiliar with the tradition of rule of law.This legal tradition lasting over several centuries was, however, not fully compatible with Western ideas of law. Western legal theories were introduced to the dynasty as early as the 17th century.[411] However, many scholars were against their reception and expressed strong criticism while at the same time defending Confucianism.[412] This resistance did not last long. After the middle of the 19th century, the Joseon Dynasty finally saw an influx of Western culÂture. This significantly affected the legal sector. King Gojong dispatched Sinsa Yuramdan, a group of members organised to experience foreign things, to visit Japan in 1881 when Japan was in the process of rigorous reforms, or to put it otherwise, undergoing Westernisation. On his return to Korea, one member of that group, Oem Seyong, filed a seven-volume report on the Ministry of Justice in Japan and Japan's legal system. There were direct observations on Western nations as well.
For instance, Yu Giljoon was a Korean scholar who studied in the United States of America from 1883 to 1885. After returning home, he wrote Seoyugyeonmoon (My Observations on Western Things). This book introduced the Western concepts of state, law, rights and liberty to Joseon for the first time. SuhJaepil, who studied at the Washington University, founded the Dongnip Hyuphoe (Independence Club) and published a newspaper, the Dongnip Shinmun, in an effort to educate Joseon people on the principles of democracy and Western legal systems.
Governmental measures to modernise the legal system also followed. In 1894 the first modern system separating the judiciary from other branches of the state was initially introduced, when King Gojong promulgated the 14 Articles of Hongbum. Based on this measure, the Court Organization Law was passed in 1895, which completed the separation of the judiciary and executive sectors of the government. In the same year, the first modern legal education and trainÂing institute, the Bubkwanyangseongso, was founded. By the end of the century, King Gojong re-established the country as part of the Daehan Empire, and proÂmulgated Korea's first modern Constitution (Daehanguk Gukje) in 1899.13 The Joseon Government took various measures to introduce some features of WestÂern legal systems into the country. However, these actions were not free from foreign interventions, especially those of Japan.
Through the international treaty signed with Japan at Kanghwado in 1876, the channel for international exchange was forced open. This treaty put Joseon in an inferior position for diplomatic affairs, and the Joseon Government had great difficulty in implementing reforms independently. Gradually, the dynasty was pushed to follow Japan's path in terms of reform. A series of unfair treaties were made, including the Japan-Korea Annexation Treaty of 1907, in which the judicial power of Joseon was transferred to Japan.14 Joseon's sovereign power was controlled and gradually diminished until fullJapanese annexation of Joseon in 1910.15
2.3 Colonialperiod
After annexation in1910, the colonisation process in Korea was carefully planned and executed by the Japanese Government. The legal sector was no exception.
Instead of the codes that had been set up by the Joseon Government, Japanese codes took their place and functioned as the primary source of law in Korean territory. This legal integration was one of the tools used to fully integrate Korea into Japan. In the course of receiving Japanese influence in the legal sector, Korea indirectly accepted Western legal tradition, since Japan itself had also received Anglo-American, French and Germanjurisprudence. Having been most influenced by Germany, the Korean legal system and jurisprudence eventually became quasi-German.16The legal system of colonial Korea was not something that could be defined as modern and democratic. The main reason for that was the context in which the
13 ibid., pp. 142-55.
14 D Choi, �Development of Law and Legal Institutions in Korea', inBD Chun, W Shaw and D Choi, op. cit., p. 74.
15 ibid.
16 CChoi,op.cit.,p. 161.
legal system was structured and operated. Power was structured by law to enable Japan to efficiently rule Korea as a colony. The Japanese Governor-General of the colonial government had unrestrained power over both the executive and legislative branches, and little autonomy was guaranteed to the judicial branch, as it was categorised as a subordinate part of government. Constitutional law did notexist in Korea, and the human rights of the people were not sufficiently valued by the law.[413] Although the law in colonial Korea had the form of modern law, it was also an essential tool of retaining colonial order in the Korean peninsula.
Another interesting aspect of the colonial law was the establishment of cusÂtomary law in the realm of private law. Although the Japanese Government was applying Japanese laws to the colony, it also promulgated a decree that private legal matters not covered by the laws were to be handled under Korean custom.[414] The difficulty for the judges was that there was no written official form of customÂary law in Korea at that time.
Therefore, the colonial government and judiciary had to go through a thorough investigation of Korean customs and ascertain their contents in each case they encountered.[415] The colonial construction of customÂary law has been described as a creation of Korean customs viewed through the window of Western (or Japanese in some cases) legal concepts.[416] This tradition of â€?filling the gap between Korean tradition and Western law' has influenced the Koreanjudiciary even in the post-colonial period.[417]2.4 Post-colonial period
Although Korea was finally liberated from Japanese colonial rule with the end of World War II in 1945, the Japanese influence was still prevalent for a long period of time. This was mainly due to the fact that those Koreans who worked in official posts during the colonial period comprised the main pool of potential officers for the new government. After Japan surrendered to the Allied Forces, nearly all of the people who managed the important functional positions in Korea returned to Japan. The newly formed Korean Government had no alternative but to hire those workers from the colonial era, including Koreans who had worked for the Japanese police to arrest nationalists. Even these people managed to work their way up to high posts in every public field, including within the legislative and judicial branches.[418]
It was not only human resources but also the legal infrastructure that remained as a colonial residue. Many laws from the colonial period were still applied to the independent state of Korea under the orders of the American military govÂernment. For example, Japan's Civil Code was in full force until the newly drafted Korean Civil Code took its effect in 1960. There were efforts to eliminate Korea's colonial remnants. For example, a special examination committee was estabÂlished by the Government in 1948 to take punitive measures againstpro-Japanese personnel, charged with committing malicious anti-national acts during the coloÂnial period.
However, the goals of this committee were barely reached as there was opposition from inside the Government, and as a result only a few people were punished. As pro-Japanese Koreans retained their high posts, the Japanese influence persisted in the making of law and in its application.23 In the midst of the rush for freedom, the dark side of the colonial period still lingered in Korea.However, it was not only Japanese traces that impacted upon establishing a new Korean legal system. Direct Western influence also existed in Korean law. This was particularly strong in the area of constitutional law which never had existed in the colonial period. The drafters of the Korean Constitution were looking for models outside Asia. The Korean Constitution was influenced by many Western Constitutions, including the Weimar Constitution of Germany as well as the American, English and French Constitutions.24 Among these, the most significant influence came from the American Constitution. Many features of the Korean Constitution were designed in keeping with American constitutionalism: a single-document national Constitutionwith a preamble of guiding principles; a list of individual rights and freedoms; a separation of the powers of the national government among three branches; and so on.25
The post-colonial period was the first true beginning of the establishment of the modern legal system. The first general election was held, and the first Constitution was written by newly elected legislators. The Constitution of 1948 provided the basis for the independence of the judiciary. Accordingly, the Court OrganizationAct was promulgated in 1949. Other fundamental pieces of legislaÂtion became effective, including the Criminal Code on 3 October 1953, the Civil Code and the Civil Procedure Code on 1 January 1960, and the Commercial Code on 1 January 1963.
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