Legalprofessions

5.1 Overview

Three words represent traditional legal professionals in Korea; homogeneity, scarcity and prestige. These features are all intertwined with each other. All are apparent in the two channels legal professionals go through: the National Judicial Examination (NJE) and the Judicial Research and Training Institute (JRTI).⁶⁰ The NJE is an annual nationwide test that is hosted by the government to select prospective lawyers.

The JRTI is a professional legal training centre run by the Supreme Court of Korea for would-be lawyers before their entrance into the practice.⁶¹ Regardless of their profession, all lawyers in Korea have passed

58 Constitutional Court Decision, 21 October 2004, 2004Hunma554, 566 (consolidated).

59 Article 72 of the Constitution statesthat the President may submit important policies relating to diplomacy, national defence, unification and othermatters relating to the national destinyto a national referendum ifhe deems it necessary.

60 There is an exception to this. Judge advocates who pass the Judge Advocate Examination and complete two years of training at the JRTI qualify as lawyers after 10 years' service in the military, pursuant to art 7 of the JudgeAdvocateAppointmentAct.

61 See the JRTI website:. the same test and trained together in the same institute following the same curriculum. This explains the high homogeneity of the legal profession in Korea.

Further, this group has been very few in number. Until 1977 the annual number of persons passing the Bar Examination was less than 100.⁶2 In 1981 this quota was raised from 100 to 300. It gradually increased to approximately 1000 around 2002. Still, the number of lawyers per capita in Korea is only a quarter of the OECD average according to a survey by the OECD in 2008. This in turn restricts competition and keeps prices high.

Scarcity in number has helped the legal profession to keep its prestigious social status.^[446] ^{^[447] The high entry barrier contributed to maintaining the quality of lawyers, which in turn upheld their prestige. In particular, judges and prosecutors were deemed exceedingly prestigious based on the longstanding tradition and culture in which public officials are held in high regard. However, the role of legal professionals in Korean society was not as significant as their prestige. Despite the increase in the number of lawyers, they were too small in number to satisfy the increased demand of the society. They were too homogeneous to correspond to diversified social issues. Theywere too domestic-oriented to meet the need for globalisation. This brought about the request for legal reform. The new trends in the legal professions and legal education will be discussed later in this chapter. 5.2 Judges
By delegation of the Constitution, the Court Organization Act stipulates qualifiВcations necessary forjudges. According to art 42 of the Act, persons who have passed the NJE and have completed the two-year training program at the JRTI or those who have obtained qualifications as lawyers are eligible to become judges. Judges are appointed by the Chief Justice with the consent of the CounВcil of Supreme Court Justices. Judges have a 10-year service term and can be reappointed. In practice, most of the judges are reappointed after 10 years.
For centuries the Supreme Court has recruited most of its newly appointed judges from the group of young elite trainees at the JRTI. Somejudges have been selected from the pool of practitioners but the number is small. Typically, approxВimately 100 judges are appointed annually. Their terms are usually renewed. During their careers, judges are transferred to different courts on a regular basis. They usually serve in one area for a certain period of time, ranging from two to three years. This is due to the judicial hierarchy, in which a newly appointed judge starts as an associate judge in the three-judge panel of the District Court, and then gradually moves up the hierarchy, as a single judge in the District Court, an associate judge in the High Court, a presiding judge in the three-judge panel of the District Court, a presiding judge in the three-judge panel of the High Court, and then to higher positions such as the Chief Judge of the District or High Court, or most desirably, a Supreme Court Justice.
This hierarchy makes judges transfer their positions and workplaces on a regular basis. Another factor is the preference of judges to serve in bigger cities, where they have better access to better education for their children and more amenities for a higher quality of life. For this reason, the Supreme Court deploys judges in a way that secures even opportunity to each and every judge. Because of a heavy workload, Korean judges are extremely hardworking. There are 2352 judges in the nation's judiciary.^[448] An average Koreanjudge hanВdles approximately 1000 cases a year.^[449] It is not unusual to see judges working until late at night nearly every week day, and on either Saturday or Sunday. The young and motivated judges are accustomed to dedicating their time and energy to work from the early stages of their career. However, it is rare to see judges working through their retirement age of 63. Most of them retire before they reach their retirement age and work as private attorneys. This may seem odd to Western lawyers, where the opposite happens. This early retirement may be attributed to two reasons. In the strict judicial hierarchy, it has been comВmonplace for those who failed to go to the next step of the hierarchy to resign from their posts. Further, many are attracted by the higher income they can make as a private attorney after they retire. Yet with fundamental legal reform recently introduced (in particular, the implementation of the law school sysВtem), the judiciary is likely to go through radical changes in the future. Though it is not clear at this point, the Supreme Court is likely to recruit most of its newly appointed judges from the pool of practitioners instead of recent gradВuates from the JRTI. The judicial hierarchy, as it exists now, is likely to be softened.
The most significant issue facing Korea's judges is the attainment of full indeВpendence of the judiciary. There is now a high level of judicial independence.
Yet there was a time when the independence and impartiality of the judges and the courts were severely hampered. During the military dictatorship regimes of the 1960s, 1970s and 1980s, the judiciary had to struggle to protect threats to its independence from the executive branch.^[450] On and off, the Governmentwould react in a retaliatory way when the courts ruled in disfavour of the regime. For example, there was a ruling by the Supreme Court^[451] where it had found unconВstitutional a statutory measure by the Government to exclude military personnel from suing the Government for tort liability. The Court declared the provision for the statute was incompatible with the equal-protection-of-law clause.^[452] HowВever, this provoked the military regime, and in the aftermath of the decision, legal and non-legal measures were used to retaliate against the judiciary. As the Fourth (Yushin) Republic was launched, the power of constitutional review that was once in the hand of the judiciary was removed from the courts.^[453] After Korea's political democratisation progressed during the late 1980s, judicial indeВpendence is now in full blossom. 5.3 Publicprosecutors
At the outset of building its modern judicial system, Korea enacted the Public ProsecutorsвЂ™ OfficeAct in 1949. Since then, public prosecutors have played an important role in the criminal system. The main responsibilities of public prosВecutors are threefold; investigation, prosecution, and execution of sentence. Public prosecutors, as the defenders of the public interest, also carry out responВsibilities as government counsel and as the protectors of human rights. As of February 2009, there were in total 1724 prosecutors, 318 of whom were female.
Police comprise another body of investigative authority. Inevitably, the relaВtionship between public prosecutors and the police has often been a subject of controversy. However, at least for now, the police service is the secondary invesВtigative body since it is subject to the direction and supervision of prosecutors.
Prosecutors oversee the investigative activity of the police and have the sole authority to make a final decision whether to close or indict the case.^[454] However, this does not mean that prosecutors step in at every stage of the investigation in every case. Prosecutors direct police officers in important matters pertaining to human rights issues such as the detention of suspects or in cases that are of great importance. Once the case is indicted, prosecutors are responsible for presenting the case at trial. At the closing of the trial, they provide an advisory opinion on sentencing, but it remains at the court's discretion to decide its own sentence. In criminal proceedings, prosecutors are theoretically the party opposing the defenВdant. However, prosecutors have been considered not merely participants in the criminal process, but as semi-judicial agents or defenders of public interest. Thus prosecutors in Korea have enjoyed superior status to those in most common-law countries. Yet in the past public trust in prosecutors was not as high as their prestige. Authoritarian governments were suspected of trying to use the prosecution's power to favour their own political interests. For this reason, the political neuВtrality of the public prosecutor's office was often questioned. Some questioned whether public prosecutors were reluctant to investigate corruption cases involvВing politicians or high-rank government officials. This aggravated the public disВtrust of prosecutors and led to the adoption of the special prosecutor system. Fearing lack of impartiality on the part of prosecutors because they are part of government, the National Assemblypassed legislation appointing lawyers from outside government to investigate certain cases in place of prosecutors. As of September 2009, there have been seven Acts for the appointment of special prosecutors.
However, the role of the public prosecutor in building up and maintaining the legal order should not be underestimated.
On average a single prosecutor meets 10 suspects every day. Out of the total number of cases, the ratio of instituting prosecution is roughly 50 per cent, and approximately 99.9 per cent of the accused are found guilty.⁷¹ Moreover, although highly political cases have eroded public trust towards prosecutors, the anti-corruption movement in Korea and the achievements of the prosecutors are in general quite notable when compared with other countries including France, Japan and the United States, and are thus worthy of praise.⁷² 5.4 Attorneys
The first article of Korea's Attorney-at-LawAct is highly symbolic in relation to the social status of attorneys in the country. According to that article, the mission of an attorney is to protect the fundamental human rights and realise social justice. The second article of the Act goes on to say that an attorney is a semi-public legal professional. This mission statement and self-definition from a public perspective suggests that the Korean image of an attorney is quite different from the Western perception of an attorney.
The attorney dedicated to advocating a public cause was not foreign in the history of Korea. In particular, there were attorneys who played a dominant role in the independence movement within legal proceedings. The first Chief Justice of the Supreme Court, Kim Byoungro who held the position from 1948 until 1957, is a representative figure. Although he studied law in Japan during the colonial period, he began to be involved in the independence movement by advocating for Korean independence activists in Japanese courts free of charge. After the liberation of Korea from Japan, he played a key role as the Chief Justice by vigorously paving the way for the independence of judiciary despite many obstacles.
In the period that followed, there were public interest lawyers who played a significant role when Korea was under authoritarian rule.⁷³ They stood against authoritarian government by defending political prisoners who fought for democracy. After the beginning of the transition to democracy in 1987, a number of lawyers formed a professional affiliation called Lawyers for a DemoВcratic Society (Minbyun).⁷⁴ They began to be involved in various social issues such as women's rights, environmental protection, anti-corruption and economic
71 These statistics are derived from the official website of the Supreme Prosecutor's Office. See.
72 D Johnson, вЂ?The Prosecution of Corruption in South Korea: Achievements, Problems, and Prospects', in T Ginsburg (ed), Legal Reform in Korea, RoutledgeCurzon, Abingdon, 2004, pp. 52-3.
73 For a general view on the role of public interest lawyers in Korea, see P Goedde, вЂ?From Dissidents to Institution-Builders: The Transformation of Public Interest Lawyers in South Korea', EastAsia Law Review, vol. 4, no. 1, 2009, p. 63.
74 ibid.,p.63.
justice. This affiliation received even higher attention when one of the members, Roh Moo-hyun, was elected President of the country. He was the first lawyer ever in that position in the history of Korea. Although some might argue that the priВmary responsibility of attorneys is to better serve their clients, their contribution to the democratisation of Korean society deserves some credit in the context of the political turmoil that swept Korea for several decades.
The efforts of attorneys were not only in the public interest sector, but also in the private sector in support of the growing industrial economy in Korea. The emergence of law firms is noteworthy in this respect. The first law firm, Kim, Chang & Lee, was founded in 1958. Ever since, a great number of law firms have been established, providing comprehensive legal services in all areas of law. Individual lawyers opening and operating their respective law offices used to be the dominant form of legal practice in the past, but that has now widely changed. The total number of law firms has continued to increase. Further, there has been a remarkable tendency for judges to participate in law firms after several years of public service.⁷⁵ As of September 2009, there are 459 law firms in Korea, and about 41.4 per cent of all the attorneys belong to law firms. Yet, Korean law firms are small in size compared to UK or US law firms. For example, the biggest law firm in Korea, Kim & Chang, has 347 Korean attorneys (as of 1 April 2009),⁷⁶ whereas the biggest law firm in the United States has several thousands.⁷⁷
However, the public image of attorneys is also linked with excessive prestige and high legal fees. This has to do with the number of attorneys. One needs to pass the highly competitive NJE and be trained at the JRTI for two years in order to qualify as an attorney. As of 9 September 2009, the total number of attorneys is 10 989.⁷⁸ Due to the small size of the profession, attorneys have enjoyed high social status and prestige. However, this has meant a high barrier to legal service. It is not only the total size of the profession but also the concentration of attorneys in a certain geographic area that aggravates the problem. Approximately 72 per cent of the attorneys are registered with the Seoul Bar. Including the Uijeongbu, Suwon and Incheon Bars, which are geographically adjacent to Seoul, 82 per cent of the attorneys are practising either in Seoul or the adjacent cities. This geographical concentration of attorneys makes it very difficult for people in rural areas to access legal services. This has been one of the main arguments for increasing the number of attorneys.
Another negative public perception has to do with the alleged practice of providing preferential favours to recently retired judges during litigation (known as jeonkwanyewu).⁷9 A retired judge, who until recently may have been working in the judiciary, can register as a private attorney. People tend to think that
75 See S Chang, вЂ?The Role of Law in Economic Development and Adjustment Process: The Case ofKoreaвЂ™, InternationalLawyer, vol. 34, no. 1, 2000, p. 274.
76 See The Law Times.
77 See вЂ?AmericaвЂ™s Largest 250 Law FirmsвЂ™, Internet Legal Research Group (2010).
78 See Korean Bar Association.
79 SeeJKim,op.cit.,p.51.
incumbent judges might favour these attorneys during the litigation process. This belief extends to the idea that incumbent judges, some of whom might retire to private practice in the future, have more incentive to adhere to this custom since they can expect the same favourable treatment from the younger judges after their retirement. The same can be said of public prosecutors. There is a widespread belief that one will have a higher chance of a favourable outcome at the investigation or prosecution stage if one hires a former high-ranking prosecutor as his or her counsel in a criminal case. There is no clear evidence that incumbent judges or prosecutors actually deliver a more favourable outcome exceeding their scope of discretion. However, the fact that people in legal disputes are willing to pay higher fees for those former judges or prosecutors based not onlyon their experience and expertise but also on the better chance of a promising outcome shows at least that this kind of assumption or belief exists.
5.5 Legal education
Legal education has been the most controversial topic in recent legal reform discussions. Fundamental legal education reform began to be discussed by the Commission for Judicial System Development and the Globalization Committee in 1993. Further, the Judicial Reform Promotion Committee, organised in May 1999, also discussed legal education reform in depth. Although there were no significant changes made following these efforts, the reform movement was finally accelerated when the Presidential Committee on Judicial Reform was launched in 2005 to implement judicial reform including legal education reform. As a result, a law school Bill that introduces a US-style law school model was finally passed in July 2007. This epochal, yet controversial, new legal education system commenced implementation in March 2009.
Some background on this reform needs to be provided. The past system oflegal education was modelled on the continental European system. Legal education was pursued at the undergraduate level for four years. Usually, law students spent the first year gaining a general education in the social sciences and literary arts, and then spent the rest of their college years engaged in legal studies. Unlike the United States, most of the students entering the law college did not end up becoming lawyers. Theoretically speaking, obtaining a licence to practise law was open to everybody, even to those who had not majored in law, as long as they passed the NJE. Yet, this three-stage examination⁸⁰ was notorious for its extreme competitiveness. Very limited numbers of selected applicants, usually around 1 to 5 per cent of the total applicants, finally passed the examination.⁸¹ Forexample, 290 out of 16 390 passed the national judicial examination in 1994, resulting in a pass rate of 1.7 per cent. In 1995 the total number of people passing the exam rose to over 300, when 308 out of 16 789 passed, resulting in a pass rate of 1.8 per cent. The competitiveness has gradually eased since then. The
80 The three stages are, in order: multiple choice questions, an essayand a personal interview.
81 The statistics are from Ministryof Justice. total number first rose over 1000 in 2004, when 1009 out of 15 446 passed, the pass rate reaching 6.5 per cent. In 2008,1005 out of 17 829 passed, resulting in a pass rate of 5.6 per cent.
As the statistics show, the extreme difficulty and competitiveness of the exam has resulted in the unbalanced portfolio of successful applicants. For examВple, the 2008 statistics show that 561 out of 1005 successful applicants, about 55.8 per cent, are from the so-called SKY universities (Seoul National University, Korea University and Yonsei University). From 2002 to 2007,3065 SKYstudents (Seoul 1685, Korea 832 and Yonsei 548) accounted for more than 62 per cent of the total number of successful applicants, 4908. Consequently, the alumni structure of the JRTI created widespread suspicion among people that strong interpersonal relationships might influence judicial justice.^[455]
Another problem was that legal education was undermined by the existence of the NJE.^[456] Overwhelmed by its extreme competitiveness, students hesitated to take courses that were not related to the NJE. Further, they would throng to courses in private institutes where commercial preparation courses customised for the NJE (comparable to BARBRI or Kaplan in the United States) were offered. In the meantime, creative, diverse and interactive legal education was being stifled. In addition, Korean society was calling for more lawyers from diverse backgrounds. Adhering to the NJE system was not providing an appropriate solution.
Against this backdrop, a new system has been introduced. This new education system has the key features of the US law school model - three-year training at a graduate-level professional school. A total of 25 law schools opened in 2009, and admitted approximately 2500 students with varying undergraduate majors and work backgrounds. Law colleges at the undergraduate level are to be abolished in principle, but universities with no law school can continue to offer general legal education at undergraduate level. Prospective lawyers will no longer be attending the JRTI as long as they complete the professional education at law school and pass the Bar Examination. The JRTI is likely to be reduced to become a judge-training centre, instead of a comprehensive training institute for all would- be lawyers. The NJE will still be held until 2017 despite the implementation of the new education system, in order to protect the reliance interest of those remaining law college students.
Now at law schools, more diverse courses including interdisciplinary courses, foreign law classes (some in foreign languages) and clinical programs in which students have exposure to actual clients and cases will be offered. The aim of the new system is to foster more global-oriented and versatile individuals who are ready to spread through every corner of Korean society and overseas, instead of lawyers who spent most of their time studying law and preparing for NJE and JRTI tests, with no outside-of-law experience.
Whether or not this ambitious plan of legal reforms will help overcome past drawbacks and create a new type of lawyer remains an open question. Along with the rosy prospects of this bold experiment, many concerns exist as well. There is an ongoing argument regarding the cap on the number of law schools and legal professionals. The Government has capped the number of law schools and the total enrolment numbers. The high cost of education and the longer period required to become licensed legal professionals, especially in a country where all the males are obliged to serve in the military for at least 20 months, are some other factors that could undermine the new system. Above all, the quality of the lawyers produced by this new system will be determinative in this debate. Educating students with no legal knowledge and experience for three years, and sending them out to the legal market where an adequate post-law school training system is lacking will be immensely challenging for law faculties.
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Source: Black Ann, Bell Gary. Law and Legal Institutions of Asia: Traditions, Adaptations and Innovations. Cambridge University Press,2011. вЂ” 428 p.. 2011

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