New directions and trends

7.1 Facingglobalisation

The development of Korean law was greatly influenced by Western law. But this did not necessarily result in the internationalisation of the Korean legal system.

93 Constitutional Court Decision, 16 July 1997, 95Hunga6-13.

94 The Constitutional Court, TheFirst Ten Years oftheKorean Constitutional Court, The Constitutional Court ofKorea, Seoul, 2001, p. 242. See also J Lim, �The Constitutional Court, Activism, and Change', in T Ginsburg, op. cit, pp. 21-2.

95 C Hahm, op. cit., p. 277.

96 ibid.

97 Supreme Court Decision, 12 June 1998, 96Da52670.

98 See C Hahm, op. cit., p. 278.

further research and training. Major law firms are now involved with an increas­ing number of cross-border issues. The introduction of the law school system is likely to provide further momentum for the globalisation of legal academia and education.

The opening-up of the Korean legal service market can only accelerate this trend. In March 2004 the Korean Government submitted a proposal to the World Trade Organization that allows foreign law firms to open representative offices in Korea to consult on international and foreign law problems. Since then, the Korean Government has prepared for a gradual opening-up of the legal market. The turning point was the Free Trade Agreement (FTA) with the United States, signed by both Governments in June 2007.99 According to this agreement, the Korean legal market will open up in three steps.

The initial step to open the legal market has already been taken. On 25 March 2009 the Foreign Legal Consultant Act (FLCA) was passed by the National Assembly, and became effective as of 26 September 2009. This was in response to ongoing demand for the opening-up of the Korean legal market. However, it helps open up the legal market only slowly. Instead of giving foreign lawyers and firms full access to Korea immediately, the FLCA permits foreign lawyers who have at least three years' work experience in their foreign jurisdic­tion to provide consulting services on foreign law once they obtain approval from the Minister of Justice and register with the Korean Bar Association as a foreign legal consultant. The FLCA also allows a foreign legal consultant to establish a foreign legal consulting office in Korea. Although there were quite a number of foreign attorneys, mainly US lawyers, hired by Korean law firms to provide a foreign legal consulting service, there has been no registration system for these lawyers. Theywere technically not considered �lawyers' under the past regime, since theAttorney-at-LawAct required that all lawyers be licensed and registered under the Act in order to practise, a requirement that has not been met by for­eign lawyers.

99 See. can be argued that this measure is directed at increasing regulation over foreign lawyers. Still, the FLCAis concerned with the mere initial stage of the opening- up of the legal market and may have no substantial impact on the legal market. Further steps are likely to be taken in the form of a treaty with other individual countries.

7.2 Tearing down the great wall of the judiciary

Pursuant to Confucian tradition, people have held the public sector, as opposed to the private sector, in high regard. This partly explains the throng of would- be lawyers wanting to become judges. Even private practitioners were more respected when they had public careers. The traditional attitude has contributed to the high prestige surrounding the Korean judiciary.

However, as mentioned earlier, the Koreanjudiciary has failed to sufficiently maintain the confidence of the general public. This had to do with the personnel structure of the judiciary. It was customary to select new judges from those who just had finished their training at the JRTI without undertaking other legal careers. After they were appointed as judges, many of them left the judiciary to become private practitioners, which often happened when they failed to be promoted to the next position in the judicial hierarchy.^[457] Consequently, the judiciary was looking like a pyramid with plenty of young judges at the bottom and a few elderly Supreme Court Justices at the top. Especially in a society where elderly people are more respected, people felt uneasy about being tried by relative young judges.^[458] It is not certain at this point how the Supreme Court will plan the judicial appointment system in the future.

The Supreme Court has also made efforts to enhance oral communication between judges and parties to litigation.^[459] In the past, documents were at the centre of the Court's procedure. Judges were more focused on reviewing doc­uments to understand the case than on listening to the oral arguments. Now the Court has become more dedicated to the oral proceedings, and to enhanc­ing communication with the parties. The Court even encourages judges to film their own trials and review them, with the help of communication experts where necessary, in order to improve their communication skills.

The introduction of a modified jury system within criminal proceedings is also a symbolicmovementtowardsjudicial democracy.^[460] The changewas introduced in 2008 as part of reform measures aimed at promoting greater trustin thejudicial system. This modified jury system is only applicable at the request of defendants who are being tried on charges of certain felonies, including murder, attempted murder, rape, kidnapping, or bribery over a certain amount. The jury consists of five, seven or nine randomly selected citizens who are 20 years or older.¹⁰⁴ The jury will hear a case, make a judgment and set a sentence. The most significant difference from the US jury system is that the jury's ruling is non-binding. Thus the final verdict still rests in the hands of a judge as it did in the past. However, the jury's ruling is likely to be respected by professional judges. It needs to be understood that Korea is at the experimental stage. The modified jury system will operate on trial for five years, after which a specially designated committee will reexamine its feasibility and desirability within the judicial system. Although the success of this new system remains to be seen, this reform is clearly a step forward in terms of enhancing citizen involvement as well as enhancing judicial awareness of the people involved in criminal procedures.

7.3 Coping with the information age

As in other countries, the advent of the internet has dramatically changed Korean society in multiple ways. Since the early stage of its development, Koreans have vigorously accepted the technology and the culture of the internet, and have an overwhelmingly positive attitude towards involvement with online activities. A highly homogeneous, dense population and a remarkably high broadband pen­etration rate have all contributed to the blossoming of the internet industry and the formation of various internet communities. While it is definitely benefiting people's lives, there is dark side to the internet revolution as well. With the increase in the flow of information online, copyright infringement and defama­tion within cyberspace are rife in Korea. From the policy aspect, there is a heated and controversial debate as to how far the government can step in to regulate these wrongdoings. Underlying the debate is a conflict of values, such as freedom of expression versus protection of morals and honour, or sharing of information versus protection of intellectual property. There are also legal battles concerning such internet-related disputes. At least at the Supreme Court level, the focus has been on the liability of internet service providers (ISPs) for wrongdoings committed by individual users. Two Supreme Court cases are noteworthy in this respect.

The first case, known as the â€?Soribada case', is analogous to the Napster case in the United States.¹⁰⁵ Soribada is the name of p2p software and a website that allows internet users to share music mp3 files. A civil suit was filed by the Recording IndustryAssociation of Korea (RIAK) against Soribada administrators. This case was accepted by the lower courts and finally approved by the Supreme

104 The number of jurors depends on the case. In a very serious case where capital punishment or life imprisonment is available, nine jurors sit as the jury.

105 See J Leitner, �A Legal and Cultural Comparison of File-Sharing Disputes in Japan and the Republic of Korea and Implications for Future Cyber-Regulation', Columbia Journal of Asian Law, vol.

Court. The Supreme Court found that the administrators of Soribada aided and abetted copyright infringements by failing to cautiously avoid assisting copyright infringers.^[461] Criminal prosecution was also instigated, and the administrators were punished for the reason that they knowingly abetted copyright infringement by users.

The second case concerns online defamation.^[462] Since most ISPs have deeper pockets than defamers, who are hard to track down and may be judgment-proof even when they are identified, victims of online defamation have brought suits against ISPs instead of against defamers themselves.^[463] Thus there have been a number of cases concerning the liability of ISPs for online defamation.^[464] A recent Supreme Court decision,^[465] the first of its kind to be handed down by the highest court, shows how the Justices agonised over balancing this clash between freedom of expression and freedom from defamation. In this case, where internet portals were sued for damages arising from defamation commit­ted by individual users, the plaintiff argued that internet portals such as those owned by newspaper publishers and broadcasters should be held accountable for defamatory articles since the portals pick and post news items in their web pages to spread in cyberspace. In the case in question, the articles were about the plaintiff allegedly deceiving his girlfriend with a false promise of marriage, which led her to commit suicide after he broke his promise. The plaintiff asserted that he suffered grave mental distress by the articles and negative online comments. The Supreme Court issued a verdict in favour of the plaintiff by stating that a portal site that has engaged in actions similar to editing, such as actively choosing part of an article transmitted by media and positioning it in specific areas of the portal web page, has the duty of care to delete slanderous posts or block searches of the offending posts, even if not requested to do so by the victim. However, the concurring opinion pointed out that it is more reasonable to hold a ISP liable only if the ISP clearly knew of the existence of defamation by the request made by the victim and it was technically and economically feasible for it to take the relevant measures.^[466]

Another notable development is the criminalisation of internet users for their wrongdoings.^[467] However, file-sharing and defamatory acts are still prevalent despite criminal sanctions against internet users. This phenomenon can be attributed to some aspects of Korean culture. Widespread file-sharing reflects the traditional Confucian perception of intangible academic or artistic works as public goods. Broad participation by laypeople in forming public opinion on the internet, which often leads to online defamation, may be a counteraction to the offline taciturnity prevalent in Korean culture. In other words, people who were hesitant to speak out in public due to Korean cultural tradition are now expressing themselves somewhat excessively under the cloak of anonymity.

But policy-makers and most people realise that the internet is no longer a new world where anybody can do anything they feel like without being curbed by offline laws. This issue became more serious when a renowned actress com­mitted suicide in October 2008 following a large number of nasty and malicious comments on an internet bulletin board.¹¹³ This shocked all Koreans and politi­cians began raising their voices about reducing the effect of this dark side of the internet. How a balance between the competing values can be achieved is becoming one of the key issues confronting Korea's legal sector.

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