Legalculture

6.1 Still litigation-averse? - Korean attitudes towards litigation

Past authoritative accounts of Korean legal culture have portrayed Korean legal culture as litigation-averse.⁸⁴ According to this stance, Korean people tend to solve disputes by resorting to informal mediators, like elder members of the community or family, which is in keeping with their Confucian heritage,⁸⁵ rather than making their way to court to assert their legal rights.⁸⁶ Yet there have been criticisms of this stereotyped view.⁸⁷

Looking at the current statistics, Korean society is by no means non-litigious.

84 P Hahm, The Korean Political Tradition and Law: Essays in Korean Law and Legal History, 2nd ed, Royal Asiatic Society, Korea Branch, Seoul, 1971; P Hahm, Korean Jurisprudence, Politics and Cultures, Yonsei UniversityPress, Seoul, 1986.

85 N Kim et al, �Community and Industrial Mediation in South Korea’, Journal ofConflictResolution, vol. 37, no.2,1993, p.361.

86 LB Bingham, S Lee and W Chang, �Participatory Governance in South Korea: Legal Infrastructure, Economic Development, and Dispute Resolution’,PacificMcGeorge GlobalBusiness&DevelopmentLawJournal, vol.

87 See generally C Lee, �Talking about Korean Legal Culture: A Critical Review of the Discursive Production ofLegal Culture in Korea’, Korea Journal, vol. 38, no. 3,1998, p. 45.

88 Japanese judicial statistics are available at Supreme Court of Japan and Korean judicial statistics are available at Supreme Court of Korea.

89 This figure has been retrieved from international data held by the US Census Bureau, available at US Census Bureau, International Data Base (IDB). that East Asian countries generally share a non-litigious culture. On average, more than one in three Koreans has been involved in some form of court-filed case, with more than one in eight involved in litigation.

Once proceeding with litigation, Koreans show a tendency to bring the case all the way up to the Supreme Court. The phenomenal figure of 34137, which is the number of cases filed in the Supreme Court in the year 2008, clearly reflects this general tendency. Devoid of certiorari as in the US court system, parties can bring the case to the highest court freely without obtaining any approval from the court. Although one has to have certain legal grounds to file an appeal to the Supreme Court (as explained above in section 4.2 in the discussion on legal institutions) there is no way of stopping parties from filing an appeal. When this number of cases is divided by the number of Supreme Court Justices (13, excluding the Minister of the National Court Administration who does not adjudicate actual cases) it reaches the astounding number of2625, which clearly shows the workload per Justice every year.

However, this can be seen as evidence that law is gaining ground in Korean society as a central mechanism of dispute resolution. More individuals are willing to sacrifice their time and energy to bring their disputes to court and consequently more disputes are resolved by virtue of law, instead of informal reconciliation. This may be a further justification for needing more lawyers in Korea. But it may also be a ground for fearing that more lawyers will aggravate the ongoing litigiousness in Korea.

6.2 The uneasy position of Confucianism

As mentioned earlier in the discussion of the historical context, Confucianism was the central ideology of the Joseon Dynasty, but its continuous influence in Korea seems to have diminished during the modernisation period.⁹⁰ Traditional values which were not in line with Western legal ideas were excluded from the legal framework. However, some Confucian traditions were transplanted into statutory laws or customary laws. Confucian perspectives especially inspired many elements of Korean family law.⁹¹ Concepts such as chinjok (relatives), cho (a unit for counting the degrees between relatives) and hoju (head of the family) were introduced in the Civil Code. The hoju inherited the permanent position as head of the family, and women were prohibited from being appointed as a hoju.⁹² There were also statutes prohibiting marriage between those with the

90 In a 2009 survey of adults aged 20 to 40 in Korea, Japan, China, India, Singapore, Malaysia, Australia and Hong Kong by Swiss Re, a reinsurance firm in Switzerland, 94 per cent of respondents in China and 92 per cent in India said they would support their aged parents. But a mere 46 per cent in Korea, 44 per cent in Australia and 32per cent in Japan said the same. The media releaseforthis surveyisat.

91 CChoi,op.cit.,pp.171-6.

92 On the status of women in Confucian tradition, see E Cho, �Caught in Confucius' Shadow: The Struggle forWomen's Legal Equalityin South Korea', ColumbiaJournal ofAsianLaw, vol. 12. no. 2,1998, p. 125. same surname and family origin, called dongseong dongbon. Although Confucian patriarchy was upheld for decades, some of the old rules began to be dismissed either by legislation or court rulings. The Civil Code amendment for abolishing the hoju system passed the National Assembly in March 2005, and was totally replaced by new family relation registration system in July 2007.

However, there are other arguments concentrating on the bright side of the Confucian legal culture. Although the current stance of the public towards Con­fucianism is tilted to the negative side, there are also claims that Confucianism contributed to the development of modern Korea. According to this view, Confu­cianism was purported to be compatible with economic development, and even accelerated economic growth.⁹⁵ Also, a relatively low frequency of violent crimes in Korea maybe attributed to Confucianism.⁹⁶ There are cases where traditional moral norms have been considered in court adjudications. For example, in a Supreme Court case in 1998,⁹⁷ it was held that the owner of an apartment unit could not evict the tenants for failure to pay rent, where the tenants were the owner's own elderly father and ailing brother who were unable to find employ­ment due to their poor health. In this case the moral obligation of filial piety was imposed, showing that the Korean reality still requires Confucian principles in order to determine the outcome of some legal disputes.⁹⁸

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