Overview of Korean Law. John Ohnesorge University of Wisconsin Law School February 2, 2004

Transcription

1 Overview of Korean Law John Ohnesorge University of Wisconsin Law School February 2, 2004

2 Readings Development of Law and Legal Institution in Korea, by Professor Choi, Dae-kwon ( chay day kwon) 1980 Chapter V: Legal Professions and Judicial Independence, in Law and Political Authority in South Korea, by Professor Yoon, Dae-Kyu, 1990 The Changing Landscape of Civil Litigation, by Professor Kim, Jeong-Oh (Chapter 14 of Recent Transformations in Korean Law and Society, Yoon Dae-Kyu, editor) 2002

3 Part I: Law and Legality in Choson (Yi) Korea ( ) Ultimate model was Codes of China s Tang dynasty (7 th -9 th centuries) Direct model China s Ming dynasty (14th- 17 th centuries) Primary function of law was to regulate society in accordance with Confucian ideology (inherent contradiction?)

4 Political/Legal Structure Centralized, highly-organized bureaucratic State State in theory omnipotent, but in practice didn t fully penetrate society, and relied upon non-state actors (clans, villages, local elites, etc.) Lots of law, but no Law

5 Contrasts with Western Legal Ideals: Private Law Very limited amount of positive, State-created law addressing contract, tort, property, commercial obligations, etc. Little ideological commitment to classical Liberal values of private sphere, freedom of contract, private property, legal individualism Private law not exempt from dominant Confucian value system

6 Contrasts: Public Law No de jure separation of powers, or checksand-balances No constitutional law in sense of justiciable rights against the State No external administrative law in sense of justiciable rights against bureaucracy

7 Contrasts: Dispute Resolution No independent judiciary Limited separation between adjudication and other governance functions (magistrate) Disincentives to bringing private disputes to State adjudication Difficulty in controlling adjudication

8 Contrasts: Law in Society Very limited legal profession Very limited legal education Very limited scholarly tradition of categorization, systematization, abstraction, perfection, of law

9 Who Identified the Contrasts? 18 th & 19 th Century Western observers of Asia. Problems: Law on Books vs. Law in Action Desire to Justify Imperialism Confucian informants Western-trained Asian informants Non-sociological/anthropological/functional definition of law

10 Who Used the Contrasts?

11 Max Weber s Picture of Chinese (Korean) Law In Religions of China Substantive rationality vs. Formal Rationality Confucianism the substance Kadi justice by Magistrate Insufficiently predictable, calculable for purposes of modern capitalism

12 Weber s Law and Economics Modern capitalism tends toward formal, not substantive rationality Formal rationality demands clear rules, knowable in advance, to maximize private autonomy Rules developed according to internal logic of the legal system, by legal experts (formal, eschews substantive, non-legal values) Judging in formally rational system is mechanical/technocratic application of law to facts

13 Weberian critique of Korean law Not conducive to modern, industrial capitalism (substantive rationality, kadi justice ) Suitable only for petty, market economics Helps explain economic backwardness, failure to naturally evolve toward capitalism

14 Enduring Importance of Weber Sounds right, to lawyers and economists Connects legal system attributes to economic performance in understandable way Justifies treating legal reform as technical economic reform

15 Critiques of Weber Wrong about extent of private law in Asia Old -Euro-centric (England problem) Overstated importance of private law to commerce (Macaulay) Traditional system also conducive to development under right circumstances: Civil service, education, nationalism Societal substitutes of private law

16 Questions? What s Professor Choi s own framework?

17 Part II: Colonial Korea ( ) Inactive public law Law as tool for implementation of authoritarian colonial policies Imposition of highly modern, Weberian private law (cadastral survey, e.g.) Introduced use of modern legal forms in commerce Legal education for cadre of Korean elites

18 Lasting Legacies of Colonial Experience Modernized Korean law Fixed Civil law orientation Codes, bureaucratic judiciary, legal education, legal profession Law tainted by association with authoritarianism (reinforced cultural aversion) But, lawyers not all collaborators

19 BREAK Questions?

20 History Refresher Japanese Colonization ( ) US Occupation ( ) Syngman Rhee Government ( ) Rhee falls Spring, 1960 Chang Myon Government Park, Chung-Hee coup 1961

21 History (cont.) Park assassinated 1979 (18 years later) Chun, Doo-hwan Constitution, Elections Roh (Noh), Tae-woo President Kim, Yong-sam Kim, Dae-jung Noh, Moo-hyun

22 Part III: Law in the Developmental State ( ) Readings: Choi (1980); Yoon (1990) Authoritarian, military governments throughout (Park, Chun) Cold War, North Korea, security relationship with U.S. dominate Massive U.S. aid early on Import-substitution > export-oriented light > heavy Rise of the Chaebol Industrial Policy

23 Private Law Formal law localized, evolved with U.S., German, Japanese influences

24 Public Law Constitutional law suppressed (individual rights; Weimar, social welfare aspects) Administrative law minimized Executive Decrees predominate over legislation Economic regulation (antitrust, labor, environmental, foreign investment, IPR, etc.) subservient to Chaebol-led, export-oriented industrialization

25 Law in Society Highly elite legal profession, but Very, very few lawyers (even defined broadly to include scriveners, tax advisers) Judicial exam as numerical control on profession, autonomy of law, NOT for minimal competency Systematic disincentives to litigation (legal fees, court costs, weak discovery, prolonged trials )

26 Law in Society (cont.) Judiciary under control of Executive Judiciary not in control of Prosecution Judicial corruption serious Prosecutorial corruption serious

27 Implications for Law & Development? Questions? Weber s Formal Rationality? Rights-based society? Rule of Law? Human rights? Comprehensive development?

28 Part IV: Post-1987 (Towards Liberal Legality?) Reading: Kim (2000) Executive branch loosing dominance vis-àvis Congress, prosecutors, courts Constitutional Court, established 1987, actively asserting itself Judicial exam passers increased dramatically (relative to existing practice)

29 Towards Liberal Legality? (cont.) Litigation rates rising Rights consciousness up Obedience to law down Respect for legal institutions down

30 Questions/Comments? Good? Bad? Inevitable modernization?

31 Wrap-up Questions? Next week: administrative law in the Developmental State, and after Following week: Chaebol and corporate governance