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Seoul Supreme Court during Japanese rule
Busan District Court, same period
The legal system of South Korea is a civil law system that has its basis in the Constitution of the Republic of Korea. The Court Organization Act, which was passed into law on 26 September 1949, officially created a three-tiered, independent judicial system. The revised Constitution of 1987 codified judicial independence in Article 103, which states that, "Judges rule independently according to their conscience and in conformity with the Constitution and the law." The 1987 rewrite also established the Constitutional Court, the first time that South Korea had an active body for constitutional review. [1]
The Korean judicial system is based on a continental style inquisitorial system, which is markedly different from the English adversarial system. Like Chinese prosecutors and Japanese prosecutors also, Korean prosecutors directly or indirectly conduct criminal investigations. Another departure from the British/American system is the admissibility of suspect interrogation records produced by the prosecutors without defense counsel being present. A confession made without assistance of legal counsel is admissible if the suspect confirms the authenticity of the record at a preparatory hearing or during the trial. If the suspect denies its authenticity, the record could still be admissible if there is a circumstantial guarantee of trustworthiness. However, a record made by a police officer is inadmissible if the suspect denies authenticity later in the process.
Both the Constitution and the Penal Code contain provisions that prohibit ex post facto laws and violations of due process. In addition, the Constitution requires judicial warrants for arrest, detention, search, or seizure, except where a person suspected of a crime is caught in flagrante delicto or where a person suspected of a sufficiently serious crime is a flight risk or might destroy evidence, in which cases an ex post facto warrant may be issued. Additionally, no criminal suspect may be tortured or compelled to testify against himself. The Constitution also requires that a person arrested for a crime be given assistance of counsel and have the right to petition the court for habeas corpus .
Citizens of the Republic of Korea are guaranteed various civil rights and protections by Chapter II of the Constitution, which also imposes the duties of military service and taxes. These rights can be suspended however, for the purposes of social order and national security. The National Security Act prohibits "anti-government activities", which effectively criminalizes activities such as promoting anti-government ideologies (especially communism) and joining anti-government organizations.
In Korea, many disputes were settled by de facto , informal mediators like elder members of the community or family without making their way to the court. [2] However, as Korea modernized, lawsuits increased dramatically. The total number of civil cases filed in 2002 was 1,015,894 which went up to 1,288,987 in 2006. [3] The South Korean legal system effectively dates from the introduction of the original Constitution of the Republic of Korea and the organization of South Korea as an independent state. During the existence of the Republic of Korea, the Constitution has been revised or rewritten several times, the most recent of which was in 1987 at the beginning of the Sixth Republic.
The Court Organization Act, which was passed into law on 26 September 1949, officially created a three-tiered, independent judicial system in the Republic of Korea.
The revised Constitution of 1987 guaranteed that judges would not be removed from office for any reason other than impeachment, criminal acts, or incapacity. Additionally, the 1987 Constitution officially codified judicial independence in Article 103, which states that, "Judges rule independently according to their conscience and in conformity with the Constitution and the law." In addition to the new guarantees of judicial independence, the 1987 rewrite of the Constitution established the Constitutional Court, marking the first time that South Korea had an active body for constitutional review. [1]
The judicial system of the Republic of Korea is composed of the Supreme Court of Korea, the Constitutional Court of Korea, six High Courts, 13 District Courts, and several courts of specialized jurisdiction, such as the Family Court and Administrative Court. In addition, branches of District Courts may be established, as well as Municipal Courts. South Korean courts are organized and empowered in chapters V and VI of the Constitution of the Republic of Korea.
There is no system of juries in the judicial system of South Korea, although since February 2, 2008 a limited provision for advisory juries has been introduced for criminal cases and environmental cases, and all questions of law and fact are decided by judges.
Citizens of the Republic of Korea are guaranteed several basic rights(fundamental rights) by Chapter II of the Constitution. These rights include (but are not limited to):
In addition to the rights granted in this section of the Constitution, two duties are imposed upon citizens of the Republic of Korea: the duty to pay taxes and the duty to enter into military service. In addition, Article 37(2) provides that the "freedoms and rights of citizens may be restricted by law only when necessary for national security, the maintenance of law and order, or for public welfare".
One limitation placed on civil rights in South Korea is the National Security Act, which limits "anti-government activities". In particular, the National Security Act criminalizes activities such as promoting anti-government ideologies (especially communism) or joining anti-government organizations. [4] The Constitutional Court has narrowed the applicational scope of the National Security Act over the years.
Nevertheless, Korean activist lawyers have managed to become a formidable institution within Korea's legal system, in part due to the election of Roh Moo-hyun as president. [5]
Criminal law in South Korea is largely codified in the Penal Code, which was originally enacted in 1953, and has undergone little revision since. In addition to the Penal Code, several 'special acts' have been enacted that create criminal offenses not found in the Penal Code or else modify the penalties of crimes found in the Penal Code. In cases where provisions in a special act create an apparent conflict with the Penal Code, the special act is usually given preference. [6]
Both the Constitution and the Penal Code contain provisions that prohibit ex post facto laws and violations of due process. In addition, the Constitution requires judicial warrants for arrest, detention, search, or seizure, except where a person suspected of a crime is caught in flagrante delicto or where a person suspected of a sufficiently serious crime is a flight risk or might destroy evidence, in which cases an ex post facto warrant may be issued.
Additionally, no criminal suspect may be tortured or compelled to testify against himself. The Constitution also requires that a person arrested for a crime be given assistance of counsel (selected or appointed), be informed of the charges against him and of his right to counsel, and have the right to petition the court for habeas corpus . A person arrested for a crime also has the right to have his family or other close kin promptly notified as to the reason, time, and place of his detention. [7]
The Korean Penal Code is organized into 372 articles, further organized into 4 chapters of general provisions and 42 chapters of specific provisions. Abortion is restricted under the Korean Penal Code; however, the Constitutional Court of South Korea has ruled the criminalization of abortion as unconstitutional, causing the provision to lose effect by the end of 2020. [8]
The Korean rules of evidence confer a high probative value to so-called suspect interrogation records produced by the prosecutors, which is "a protocol containing a statement of a suspect or of any other person, prepared by a public prosecutor or a judicial police". [9] However, this document is technically hearsay under the English American legal system and contains a record of a confession made without assistance of legal counsel. While either the police officer or prosecutor can produce a suspect interrogation record, one made by a prosecutor is admissible if the suspect confirms the authenticity of the record at a preparatory hearing or during the trial. If the suspect denies its authenticity, the record could still be admissible if there is a circumstantial guarantee of trustworthiness. However, a record made by a police officer is inadmissible if the suspect denies authenticity later in the process. [10]
The suspect can confirm authenticity by signing the record at the end, at which time it is then presumed to be confirmed. Another way to confirm is by substantial acknowledgment where the defendant verifies the content of the record. A police-produced record is required to have substantial acknowledgment.
The Korean legal system belongs to the continental inquisitorial system, which is markedly different from the English adversarial system. It was modeled after European continental systems such as German and French judicial structure. Like Chinese prosecutors and European and Japanese prosecutors, Korean prosecutors directly or indirectly conduct criminal investigations. They involve themselves in judicial procedure by conducting investigations, determining indictable cases, and the prosecution process.
Korean prosecutors have contributed to successful prosecution of many highly ranked officials and renowned conglomerate business leaders, including two former presidents (1995) and sons of incumbent presidents (1997 and 2002 respectively). Especially in 1997, the South Korean prosecution service contributed to the imprisonment of the son of the incumbent president, Kim Hyeon Chul, which happened for the first time in world judicial history. As the result of successful, even relentlessly fair probings and prosecutions of corporate crimes, they often face criticism from corrupt[ fact or opinion? ] politicians and business leaders as to whether prosecutors' application on laws may be too severe and harsh.
Two scandal cases right before the presidential election in 2012 gave huge blows to the reputation of Korean prosecutors, and this brought in the abolition of the "grand central investigation team" in the prosecution service, which was replaced by "anti-corruption team" in Seoul central district of the prosecution service (in 2013). This was a downsized format of the grand central investigation team in overall structure, i.e. personnel and scale. Also, the Korean government introduced a specially-appointed prosecutors organization (in 2014) for when it comes to handling large corporate-bureaucrat scandals requiring a supreme level of transparency and objectivity. Specially-appointed prosecutors will be chosen by votes of national assembly members.
However, it has been controversial whether the abolition of the grand central investigation team was inevitable, as it had accomplished substantial achievements in effective prosecution of huge corruption-corporate crimes (during the period 1981–2013). In addition, there are doubts whether or not the objectivity of specially-appointed prosecutors would be guaranteed when the appointment is being made by members of national assembly. If the majority of national assembly members do not want the criminal case investigated, then it is likely that the case will not be handled at all.
During the Lee Myung Bak government, Korean prosecutors often faced criticism over seemingly lenient prosecution of several cases, which was known to be related to President Lee's national project and his relatives. Plus, they are sometimes blamed for suspicious leniency in investigating prosecutors themselves. However, since the election of President Park, the Korean prosecution service has been making efforts on self-purification process in eliminating corruptions. They also are making endeavours in succession to the past Korean prosecution service's effective and objective processing of criminal investigations. [11]
Currently, defense lawyers play a minimal role in the interrogation process. Defense counsel can be present during interrogation and can only object when the method of interrogation is unjust, and counsel can give opinions only after the interrogators approve.
In January 2009, Korea began experimenting with a limited form of lay jury system. [12]
Civil law(Private law) issues in Korea are regulated by the Civil Code (민법,民法) and the Commercial Code (상법,商法). The Civil Code was enacted in 1960 and is based upon the Japanese civil code which was used in Korea prior to the enactment.
Korean Civil Code Article 750 defines torts by stating "Any person who causes losses to or inflicts injuries on another person by an unlawful act, willfully or negligently, shall make compensation for damages."
Until recently there was little English literature written about Korean civil procedure. [13] The primary body of law on civil procedure is the Korean Civil Procedure Act and the Korean Rules of Civil Procedure (KRCP). Another important area is the Civil Execution Act first enacted in 2002 as a separate act. For special cases, there is the Family Litigation Act for family law matters and the Bankruptcy and Rehabilitation Act for bankruptcy and restructuring proceedings.
After independence, the Japanese civil procedure law remained in force until the Korean Civil Procedure Act (KCPA) was enacted on July 1, 1960. The KCPA has been amended 14 times with the most drastic change occurring in 2002. The 2002 KCPA emphasized the pretrial phase and the concentration of the trial for the sake of efficiency as well as separating civil execution from the KCPA.
Article 1 of the KCPA stipulates that the court should strive to enhance fairness, speed, and efficiency in civil proceedings.
Under the Civil Act, a natural or a juristic person has a party standing. An association and a foundation other than a juristic person can have standing as a party if additional requirements are met. [14] They are (1) there is a decision making body, (2) representing organ that acts thereby creating and exercising and fulfilling the rights and duties of the organization, (3) assets separate from the assets of its members.
The district courts along with their branch courts have original jurisdiction over civil cases. A single judge presides over a case in controversies not exceeding 50 million won. Above that amount, a panel of three judges hears the case. Cases that are complex and difficult for a single judge to handle are handled by a three-judge panel as well. The specific rules are prescribed in the Regulation on the Subject Matter Jurisdiction in Civil and Family Litigations.
The parties can also establish jurisdiction of a particular court by agreement in writing unless another court has an exclusive jurisdiction over the matter. If the defendant fails to raise a timely jurisdictional challenge in its pleading during the pre-trial on the merits of the case, the defendant is deemed to have consented to the jurisdiction. [15]
For cases of international character, Korean private international law, also known as conflict of laws, determines the jurisdiction. A Korean court has jurisdiction when a party or a case in controversy has substantial relationship with Korea. [16] In determining jurisdiction, the unique nature of international jurisdiction and the relevant clauses in Korean law are considered as well. [17]
There are general and special venues under Korean civil procedure. The court at the defendant's domicile can hear the claims. [18] If the defendant's domicile is not known or does not exist, the court at the defendant's residence can hear the claim. The KCPA also lists special venues in addition to general venues such as the workplace, where the obligation is performed, where the subject matter is located, or where the tort occurred. If there are multiple venues, the plaintiff can choose one of them to bring an action.
A civil action begins when a plaintiff files a complaint, which sets out the alleged facts and remedy sought, with the court. [19] A complaint must state the parties, legal representative if any, the remedy sought, and cause of actions. [20] The plaintiff can seek remedy such as damages, specific performance and injunctions. The three types of actions are performance, declaratory judgment, and formation claims.
The action is to compel the defendant to perform or refrain from certain acts.
The action is to have the court declare existence or absence of the legal relationship in controversy.
The action is to create or change a legal relationship by a court order.
When a complaint is properly received by the court, the court serves the defendant with a duplicate of the complaint, [21] usually by certified mail but also by court officials or a marshall. If the defendant's address cannot be found, the court can order a public notice instead. [22]
The plaintiff can dismiss the case at any time before the defendant makes his pleading on the merit. [23] In such case, the defendant is deemed to have consented to dismissal if he makes no objection within two weeks after the plaintiff moves to do so.
The pretrial period is to clarify disputed facts and legal issues. The parties exchange briefs and supporting documents through answers and counterclaims under the court supervision. The defendant is required to file a written answer within 30 days after the complaint is served. [24] In response, the defendant can accept, dispute, or remain silent about the allegations.
If the defendant accepts the claim or admits all the facts, the court can render a judgment without a trial. When the defendant fails to contest the complaints in a timely manner or remains silent, the court can regard it as acceptance or admission as well.
When the pre-trial period is over, the judge sets a date for the trial. The trial is public and done orally. As there is no jury in civil litigation, all trials are bench trials. The parties can represent pro se and the court can appoint a public defender for in forma pauperis .
The contested facts need to be proven by evidence, while facts admitted by the opponent do not require evidence. The judge can only rule based on the evidence presented and cannot use any of their personal knowledge to rule on the case. The court has very wide discretion in assessing relevance and materiality of evidence, and virtually any type of evidence can be admitted to the court. Typically, documentary evidence tends to have higher probative value than oral testimony.
Unlike other countries, the party to the litigation cannot be a witness. Witnesses have the privilege not to testify if they have a justification. KCPA Article 315(1) lists attorneys, patent attorneys, notaries public, certified public accountants, doctors, pharmacists, and priests to have such privilege.
The witness is first examined by one party and then cross-examined by the opposing party, followed by re-direct and re-cross. The judge can also ask questions of the witnesses during the examination. Leading questions are permitted only on cross-examination and not others. [25]
After the conclusion of the trial, the judge renders a judgment based on the evidence presented and law. The opinion of the court follows a highly structured format of (1) parties and legal representatives, cause of action, date when the pleadings were done, the court. Unlike the opinions of the common law jurisdictions, the Korean judicial opinions tend to be brief and often lack detailed reasoning for the conclusion.
When the decision is given, the losing party can appeal to the court above within 14 days after the judgment is served to that party or else the judgment becomes final. The other party can cross appeal as well. The court of appeals can examine the facts as well as law and the parties can submit new allegations and pieces of evidence.
After the appellate court makes a decision, the parties can appeal to the Supreme Court. The Supreme Court hears a large number of appeal cases (about 8,859 in 2006) and sometimes rules on factual issues as well.
After the appeal process is over, the judgment is finalized and is binding.
The enforcement of civil judgments is dictated by the Civil Execution Act. Judgments rendered by a foreign court can be enforced. [26]
Treaties ratified by the Republic of Korea have the same effect as domestic law, as stated in Article 6 of the Constitution. The Constitution gives the power to make treaties to the President, while the National Assembly has the right to consent to treaties made by the President. South Korea is currently party to several international agreements and organizations. Most notably, South Korea joined the Hague convention on International Child Abduction in 2012, but was criticized for its repetitive pattern of non-compliance [27] [28] [29] [30] [31] , earning the title, the "Haven for child abductors". [32]
The adversarial system or adversary system or accusatorial system or accusatory system is a legal system used in the common law countries where two advocates represent their parties' case or position before an impartial person or group of people, usually a judge or jury, who attempt to determine the truth and pass judgment accordingly. It is in contrast to the inquisitorial system used in some civil law systems where a judge investigates the case.
In jurisprudence, double jeopardy is a procedural defence that prevents an accused person from being tried again on the same charges following an acquittal or conviction and in rare cases prosecutorial and/or judge misconduct in the same jurisdiction. Double jeopardy is a common concept in criminal law – in civil law, a similar concept is that of res judicata. The double jeopardy protection in criminal prosecutions bars only an identical prosecution for the same offence except when the defendant is a servicemember as the courts have ruled that the military courts are a separate sovereign therefore servicemembers can be held in two separate trials for the exact same charges; however, a different offence may be charged on identical evidence at a second trial. Res judicata protection is stronger – it precludes any causes of action or claims that arise from a previously litigated subject matter.
A plea bargain, also known as a plea agreement or plea deal, is a legal arrangement in criminal law where the defendant agrees to plead guilty or no contest to a charge in exchange for concessions from the prosecutor. These concessions can include a reduction in the severity of the charges, the dismissal of some charges, or a more lenient sentencing recommendation. Plea bargaining serves as a mechanism to expedite the resolution of criminal cases, allowing both the prosecution and the defense to avoid the time, expense, and uncertainty of a trial. It is a prevalent practice in the United States, where it resolves the vast majority of criminal cases, and has been adopted in various forms in other legal systems worldwide.
A statute of limitations, known in civil law systems as a prescriptive period, is a law passed by a legislative body to set the maximum time after an event within which legal proceedings may be initiated. In most jurisdictions, such periods exist for both criminal law and civil law such as contract law and property law, though often under different names and with varying details.
An inquisitorial system is a legal system in which the court, or a part of the court, is actively involved in investigating the facts of the case. This is distinct from an adversarial system, in which the role of the court is primarily that of an impartial referee between the prosecution and the defense.
The presumption of innocence is a legal principle that every person accused of any crime is considered innocent until proven guilty. Under the presumption of innocence, the legal burden of proof is thus on the prosecution, which must present compelling evidence to the trier of fact. If the prosecution does not prove the charges true, then the person is acquitted of the charges. The prosecution must in most cases prove that the accused is guilty beyond a reasonable doubt. If reasonable doubt remains, the accused must be acquitted. The opposite system is a presumption of guilt.
A prosecutor is a legal representative of the prosecution in states with either the adversarial system, which is adopted in common law, or inquisitorial system, which is adopted in civil law. The prosecution is the legal party responsible for presenting the case in a criminal trial against the defendant, an individual accused of breaking the law. Typically, the prosecutor represents the state or the government in the case brought against the accused person.
The law of Japan refers to the legal system in Japan, which is primarily based on legal codes and statutes, with precedents also playing an important role. Japan has a civil law legal system with six legal codes, which were greatly influenced by Germany, to a lesser extent by France, and also adapted to Japanese circumstances. The Japanese Constitution enacted after World War II is the supreme law in Japan. An independent judiciary has the power to review laws and government acts for constitutionality.
Under the Constitution of Finland, everyone is entitled to have their case heard by a court or an authority appropriately and without undue delay. This is achieved through the judicial system of Finland.
Within the criminal justice system of Japan, there exist three basic features that characterize its operations. First, the institutions—police, government prosecutors' offices, courts, and correctional organs—maintain close and cooperative relations with each other, consulting frequently on how best to accomplish the shared goals of limiting and controlling crime. Second, citizens are encouraged to assist in maintaining public order, and they participate extensively in crime prevention campaigns, apprehension of suspects, and offender rehabilitation programs. Finally, officials who administer criminal justice are allowed considerable discretion in dealing with offenders.
The judicial system of Turkey is defined by Articles 138 to 160 of the Constitution of Turkey.
The judicial system of Israel consists of secular courts and religious courts. The law courts constitute a separate and independent unit of Israel's Ministry of Justice. The system is headed by the President of the Supreme Court and the Minister of Justice.
The High Court of Singapore is the lower division of the Supreme Court of Singapore, the upper division being the Court of Appeal. The High Court consists of the chief justice and the judges of the High Court. Judicial Commissioners are often appointed to assist with the Court's caseload. There are two specialist commercial courts, the Admiralty Court and the Intellectual Property Court, and a number of judges are designated to hear arbitration-related matters. In 2015, the Singapore International Commercial Court was established as part of the Supreme Court of Singapore, and is a division of the High Court. The other divisions of the high court are the General Division, the Appellate Division, and the Family Division. The seat of the High Court is the Supreme Court Building.
The law of the Republic of China as applied in Taiwan, Penghu, Kinmen, and Matsu is based on civil law with its origins in the modern Japanese and German legal systems. The main body of laws are codified into the Six Codes:
The judicial system of Bhutan is the purview of the Royal Court of Justice, the judicial branch of the government of Bhutan under the Constitution of 2008. The judicial system comprises the Judicial Commission, the courts, the police, the penal code, and regulations on jabmi (attorneys).
The judiciary of Italy is composed of courts and public prosecutor offices responsible for the administration of justice in the Italian Republic. These offices are occupied by judges and prosecutors respectively, who are known as magistrates. Magistrates belong to the magistracy, that is to say a branch of the State that may only be accessed by Italian citizens who hold an Italian Juris Doctor and successfully partake in one of the relevant competitive public examinations organised by the Ministry of justice.
Indonesia is a civil law country with five major codes. Its criminal procedure code, the Kitab Undang-Undang Hukum Acara Pidana ("KUHAP"), determines the procedures and rights of individuals at different stages of the trial process.
The Judiciary of Kosovo is the collection of the central Kosovo institutions that exercises judicial authority in Kosovo. According to the 2008 Constitution of Kosovo, the judicial system is composed of the Supreme Court and subordinate courts, a Constitutional Court, and an independent prosecutorial institution. The courts are administered by the Kosovo Judicial Council.
In France, the correctional court is the court of first instance that has jurisdiction in criminal matters regarding offenses classified as délits committed by an adult. In 2013, French correctional courts rendered 576,859 judgments and pronounced 501,171 verdicts.
French criminal procedure focuses on how individuals accused of crimes are dealt with in the French criminal justice system: how people are investigated, prosecuted, tried, and punished for an infraction defined in the penal code. These procedural issues are codified in the French code of criminal procedure. It is the procedural arm of French criminal law.
