Sources of law and legal traditions
3.1 Briefoverview
As one can infer from the historical development described above, Korea has long possessed a tradition of written law. The influence of continental legal systems, also based on written law, reinforced this tradition.
Not surprisingly, then, the primary source of law in Korea exists in the form of written law made by the legislative branch, not in the form of case law developed by the judicial branch.23 ibid., pp. 85-7.
24 ibid., pp. 90-5.
25 K Ahn, �The Influence of American Constitutionalism on South Korea', Southern Illinois University Law Journal, vol. 22, no. 1, 1997, p. 73.
Customary law functions as an inferior source of law, and its significance is slight in Korea's contemporary legal system due to the well-organised process offered by written law. When neither written law nor customary law can provide a legal basis for the adjudication of a case, judges should rely on the �nature of things', or in other words, general principles of law, in order to decide the case.[419] It is broadly accepted that when courts cannot find a relevant law, they should not fill the gap from their own perspectives, but consider how the legislative branch would have handled the shortfall. However, invocation of the �nature of the things' rarely happens in reality. Even when there seems to be no provision of written law that can directly be applied to a case at first glance, judges tend to creatively expand the interpretation of relevant provisions so as to adjudicate the case at issue.
3.2 Writtenlaw
Hierarchy of the written law
As with most jurisdictions drawing from the continental legal tradition, written law in Korea has its own hierarchy. The Constitution is at the top and provides guiding principles for all forms oflaw. Statutory law made by the National AssemÂbly gives detailed shape and substance under the guidance of the Constitution.
A treaty is also considered a part of statutory law once it acquires domestic effect. Besides exercising its law-making power, the National Assembly delegates a cerÂtain portion of its legislative power to the executive and judicial branches to supplement statutory law. As a result, decrees and regulations are set forth by the President, Ministers, the Supreme Court and the Constitutional Court. At the local government level, there are ordinances passed by local assemblies which have application only for that locality.The Constitution
Korea's Constitution first came into effect on 17 July 1948. It implemented the presidential system, as opposed to the Cabinet system. The Constitution has been amended nine times up to now, the first amendment taking place in 1952 and the last in 1987. Five of the amendments (1960, 1962, 1972, 1980 and 1987) were considerable, to the extent that they each resulted in the establishment of a different republic.
The existence of six republics during the 60-year history of the Constitution reflects the political hardships the country has been through. Some amendments were directed towards prolonging a presidential term or strengthening presidenÂtial power. For instance, the second amendment, in 1954, was aimed at removing a term limit for President Syngman Rhee. The 1972 amendment, which brought about the Constitution of the Fourth Republic (widely known as the Yushin ConÂstitution), was to provide the constitutional basis for an indefinite presidential term and to strengthen presidential power for President Park Junghee. These occurrences represent the failure of true constitutionalism in the midst of politiÂcal turmoil. However, the yearning for democracy pushed forward the expansion of true constitutionalism, despite some twists and turns along the way. EventuÂally, in the wake of massive pro-democratic protests nationwide, the current Republic and Constitution of 1987 were established with the approval of 93 per cent of Koreans in a national referendum.
The current Constitution consists of a preamble, 130 articles, and suppleÂmentary provisions.[420] It provides the fundamental framework for the system of government and the distribution of power. The executive branch is headed by an elected President who serves a single five-year term, and an appointed Prime Minister with no fixed term. There is a unicameral legislative branch, the National Assembly, and a judicial branch consisting of the Supreme Court and its lower courts as well as the Constitutional Court which adjudicates constitutional matters.
The Constitution also contains a bill of rights under which the fundamental rights of people are guaranteed and protected. Nearly all the rights that are recognised in modern Constitutions, including the right to due process, freedom of expression, and judicial access, are stipulated therein. The blossoming of constitutional adjudication in Korea has become a driving force in enhancing fundamental rights in the country. It is also noteworthy that Korea has the National Human Rights Commission to oversee the enhancement of human rights.[421]
Statutes
Statutes are the most significant source of law. Considering the high number of statutory laws in Korea, just a few statutes that are of significance will be mentioned.[422]
The first is the Civil Code, which is the lengthiest and perhaps the most influenÂtial of all Korean statutory laws. The Code is a comprehensive and fundamental norm that covers the entire area of private law. Most private transactions and familial matters are governed by the principles and doctrines provided by the Code. Itwas first promulgated on 22February 1958 and came into effect on 1 JanÂuary 1960. Itbears much resemblance to the overall structure of the Burgerliches Gesetzbuch (BGB), the Civil Code of Germany, in that it follows a Pandekten (digest) system, which begins with the general principles to be applied, followed by separate provisions governing particular areas of law.
Thus the Korean Civil Code consists of five parts: General Provisions, the Law of Property, the Law of Obligations, Family Law and the Law of Succession. Although there have been some minor amendments, the first three books remain almost the same as they were at the time of enactment. However, the Ministry of Justice is carrying out an ambitious plan for a large-scale recodification in the wake of ongoing modernisaÂtion of private law across the world. This project started at the beginning of 2009 and will proceed on a step-by-step basis for a four-year period.[423] The basic aim of the recodification is to reflect social changes that have taken place in the last five decades so that the Civil Code becomes more relevant to people in their everyday lives. Moreover, a host of ideas from foreign Civil Codes and international model laws will be incorporated into the Code as part of the updating process.[424]Also worth noting in the field of private law is the Korean Commercial Code, which is of great significance to business entities in Korea. This Code consists of four parts: General Provisions, Company Law, Insurance Law and Maritime Law. Company law is drawing special attention from foreign firms as they attempt to establish their subsidiaries in Korea. Four forms of corporate entities are availÂable under this Code: a stock company, a limited liability company, a limited partnership and partnership. Most common is the stock company, which allows the public to hold shares and become shareholders. With regard to the stock comÂpany, the Commercial Code governs important transactions such as the transfer of stocks as well as merger and acquisition activities. Other specific laws which need to be understood comprehensively in order to understand how company- related activities are carried out in Korea include the Security Transaction Act, the Fair TradeAct and the FinancialInvestmentServices and CapitalMarketAct.
The Korean Criminal Code also needs to be mentioned as the source of some of the most fundamental societal norms.
Since its enactment in 1953 it has underÂgone little revision. It is comprised of 372 articles, organised into four chapters of general provisions and 42 chapters of specific provisions. These provisions govÂern rudimentary crimes. There are other special statutes containing other types of criminal provisions that are not found in the Criminal Code, or that modify the criminal penalties found in the Criminal Code. In cases where provisions in a special Act create an apparent conflict with the Criminal Code, the special statute is usually given preference.Among the issues related to the Criminal Code, the retention of the death penalty and the criminalisation of adultery have caused the hottest controversy. Korea is one of few industrialised countries in the world, along with the United States and Japan, which allows the death penalty as a form of punishment for certain serious crimes. The constitutionality of the death penalty has been challenged frequently in the Supreme Court and the Constitutional Court,[425] but none of these challenges has been successful. However, concerted efforts have been made to abolish the death penalty. In 2001,155 law-makers proposed a Bill for its abolition, but it failed to pass through the National Assembly. In 2005 the National Human Rights Commission of Korea, the national institution for human rights advocacy, recommended abolishing the death penalty, and in early 2006 it recommended that the Government set out a plan for human rights including abolition of the death penalty. In 2007 Amnesty International classified Korea as an abolitionist country in practice (meaning that the country has not executed for more than 10 years). The last executions were carried out in December 1997, when 23 people were hanged.
The punishment of adultery has been another topic of controversy for a conÂsiderable period of time. According to art 241 of the Criminal Code, persons found guilty of adultery can face up to two years in prison.
The constitutionality of the provision has been challenged four times on the grounds that it is anachronistic and infringes on personal freedom, but the Constitutional Court has repeatedly rejected these claims, most recently on 30 October 2008.[426] According to the rulÂing of the Constitutional Court, society still perceives adultery to impair the social order and infringe on another's right; accordingly the need to prevent adultery through imposing criminal sanctions still exists. The ruling held that the penal provision against adultery was within the appropriate discretion of the legislative body even though it restricts, to a certain extent, the right of self-determination concerning sexual activity and the right to privacy. However, it is interesting to note that the Court came very close to declaring the provision unconstituÂtional. The Justices' opinions were sharply divided, with five out of nine Justices showing a negative stance towards penalising adultery. Although the claim was rejected on the basis of an insufficient Court majority,[427] the division even within the circle of Constitutional Court Justices shows that the law against adultery will still remain one of the most complex and sensitive issues in the future.Other sources of written law
A treaty, an international agreement concluded between states in written form and governed by international law,[428] is also at the level of a domestic statute. Some treaties need to be ratified by the National Assembly before taking effect domestically.[429] Since the establishment of the Korean Government in 1948 until the end of 2008,2584 treaties - 2016 bilateral and 568 multilateral - have been concluded by the Republic of Korea and implemented.[430]
At the lower end of the hierarchy are decrees issued by the President or Ministers. Since it is impossible in a complicated society to govern everything by primary legislation, the significance of decrees as secondary legislation is indeed grave. However, this delegated legislative power is by no means unlimited. It is to be exercised only within the boundary set forth by the statutory law from which it is derived. Validity is denied once it crosses the limit.
The Supreme Court and the Constitutional Court are also endowed with rule-making power within their scope of jurisdiction. The Supreme Court may establish rules and regulations under its judicial law-making power, concernÂing judicial proceedings, discipline within courts and management of business insofar as these are not contrary to law.38 The same judicial law-making power is given to the Constitutional Court.39 These powers are all directly delegated by the Constitution. In this regard, they differ from delegated legislative power exercised by the executive branch, which has to be specifically commissioned by specific statutory law.
In addition, there are local ordinances that are set forth and applied by local governments. According to art 117, para 1 of the Constitution, local governments may enact provisions relating to local autonomy, within the limit of Acts and subordinate statutes. This power maybe differentiated from state law in a federal system. Unlike state law, local ordinances are subject to the limits set forth by statutory law and are a part of the single national legal system.40
3.3 Customarylaw
Customary law also functions as a source of law. It is a set of norms that was naturally formed in the society and accepted by the general public as binding, although not in a codified form. In line with this, the Supreme Court requires �legal conviction' of the people in order for a certain custom to be recognised as customary law. Customary law is merely supplemental to written law. Article 1 of the Civil Code declares this principle clearly by stating that customary law may be applied only when there are no statutes available in the case being adjudicated. In other words, statutes precede customary law.
Theoretically speaking, it is a useful means for a society to bridge the gap between a real norm and an existing norm that codification cannot promptly address. But in reality, there is a circumstance where customary law that has been formed in the past might impede the advancement of the society. The Supreme Court has denied the application of customary law when it is deemed to be against the legal order. A relevant Court decision to consider is on the customary lawrelatingtothe jong-joong, the traditional patriarchal clan organisation.41 The primary purpose of the jong-joong was the performance of ancestral rituals for a
38 Constitution, art 108.
39 Constitution, art 113.
40 Supreme Court Decision, 13 December 2007,2006Chu12.
41 Supreme Court Decision, 21 July 2005, 2002Da1178. See also Supreme Court Decision, 20 November 2008, 2007Da27670. common ancestor as well as to strengthening the bonds among members of the same clan. It has been solid customary law that only adult males automatically become members of this clan organisation. As Confucian tradition has withered, the organisation has become less meaningful, but being a member still meant that one could have a right over the assets of the jong-joong. F or instance, a jong-joong would receive a large sum of money as compensation when real estate owned by the clan organisation was reclaimed for a public purpose by government; occasionally this money would be distributed to the members of the jong-joong by a resolution of the organisation. Because females were not able to become members of the jong-joong, it meant they were deprived of the chance to enjoy a share of the wealth.
In this case before the Supreme Court, married daughters who were not allowed to share in the compensation raised a complaint against their jong- joong. The Supreme Court acknowledged that the subordination of women was derived from Confucian tradition and that this was no longer acceptable in the currentlegal orderwhichwasbased on theidea of genderequality. Consequently, the Supreme Court declared, contrary to the longstanding customary law, that married females are entitled to equal membership and property rights associated with jong-joong.
3.4 Case law as a de facto source of law
According to art 8 of the Court OrganizationAct, a higher court's decision binds a lower court only in the specific pending case. Therefore, there is no principle of stare decisis as is recognised in common law jurisdictions. However, the decision of a higher court, particularly the Supreme Court, does have a de facto binding effect. It is likely in practice that lower court judges will follow the pattern of rules that have been accumulatively set forth by the Supreme Court. This has been made much easier with the development of electronic searching tools. Nowadays, most of the Supreme Court's decisions are electronically published by the Supreme Court Library and are readily accessible.42 Thus, the possible outcome of a case can be predicted by examining how the Supreme Court has decided in a similar case. In this way, Supreme Court decisions function as a de facto source of law.
4