Expat Expertise: The Korean legal system

Words by Nathan McMurray, illustrations by Pat Volz

For most people, exposure to the court system is limited to a couple of episodes of Judge Judy, or something of the sort. If you know much more than that, your body may be covered in self-inflicted tattoos or you may be wearing an ill-fitting suit and have a bad hair cut like me. Law is just not that interesting to most people, unless you are in trouble or it is your job. But today, I want to try and make the basics of the Korean legal system interesting, or at least somewhat easy to understand.

Before I go any further, I need to offer up a disclaimer. Volumes have been written about the Korean legal system. I too would like to sit down and write an elegant tome that I would cover in leather and study with a quill pen in front of a raging fireplace. But alas, 10 has asked me cover the subject in the equivalent of a series of very long tweets. With this piece, I only hope to cover the basics—setting the stage for an understanding that will provide just a little more insight into current events, social issues, and perhaps your work or business.

How are the courts organized and what do they do?

The Korean courts have three primary levels: 18 local District Courts, 5 High Courts, and the Supreme Court. Generally, you can appeal cases from the lower courts to the higher courts. In addition, there are other courts that specialize on certain areas, such as the Family Court and the Administrative Court. Outside of this three-level hierarchy of courts is the Constitutional Court, which deals with important Constitutional issues when they arise.

Prior to the 1988 Olympics there was massive pro-democracy movement. Many people—from kids in school uniforms to wobbly grandmothers—took to the streets asking for change. Remarkably, they got what they wanted and several new laws and measures were instituted by the Korean government, including the establishment of the Constitutional Court to prevent the infringement of constitutional rights by the government.

The constitutional court is the really the people’s forum. Any citizen can directly file a claim with the Constitutional Court if they feel their basic rights under the Constitution have been infringed (though they should first seek redress through other means). Also, a judge can refer a constitutional issue to the Constitutional Court for resolution.

Constitutional Court rulings are final and binding upon all branches of the Korean government. Some recent notable rulings include the 2008 case brought by actress Ok So-ri challenging the law making adultery criminally punishable as unconstitutional, which she lost. In 2012, the court made international headlines by ruling that the Korean government must immediately seek redress on behalf of victims of Japanese war crimes (specifically, victims of sexual slavery).

What’s the point of lawyers?

Historically, the legal profession was considered the most elite profession in Korea. This may stem from Korea’s past where scholars who devoted their life to studying the works of learned men acted as the leaders of Korean society—with farmers, industrialists, and merchants considered much less favorably in the Confucian hierarchy of occupations. As Korea developed, legal professionals adopted the mantle of the scholarly class.

Another reason for the elevated status of lawyers was that becoming a lawyer in Korea was extremely difficult. Previously, as few as 16 people per year passed the Korean bar examination, which required the memorization of thousands of laws and the mastery of traditional Chinese characters. In 2012, there were less than 10,000 registered lawyers in all of Korea.

Previously, if a candidate passed the bar exam, he automatically became a lawyer. A law degree was not a prerequisite for taking the bar exam. Notably, this was the path of former President Roh Moo-hyun. After passing the bar, prospective lawyers were required to enroll in a two-year course at the government-run Judicial Research and Training Institute (where I have the privilege to teach U.S. law on a part-time basis). Those who completed the two-year course could choose to become a judge, a lawyer, or a prosecutor.

Because it was so hard to become a Korean lawyer, the public had limited access to legal services. To address this problem, the legal education system was remodeled in 2009. Among the many changes, the bar exam was made much easier. The passage rate in 2012 increased to around 75%. Further, legal education was modeled after the United States. Specifically, prospective lawyers now attend a three-year post graduate course before taking the bar examination. Now Korea has a different set of problems—namely, a large number of new lawyers and a lack of job opportunities.

 

Who enforces the law?

Prosecutors are the primary law enforcement arm of the Korean government. They oversee all criminal investigations and proceedings. Like the courts, there are three levels of prosecutors: the Supreme Prosecutor’s Office, the High Prosecutor’s Office, and the district or branch offices. Within the Supreme Prosecutor’s Office lies the Central Investigation Department (CID), which handles corruption cases involving politicians, high-ranking officials, and private sector elites.

Recently, there has been discussion about the abolishment of the CID as part of an overall reform of the criminal prosecutorial system. You see, in the past, prosecutors (and in particular the CID) have been accused of political bias because they control who gets investigated, and when. Among the suggested reforms has been the idea to institute a grand jury-type system to take the almost complete discretion to investigate and prosecute away from the prosecutors.


Can I safely tell my Korean lawyer about the fact that I illegally downloaded my entire collection of K-pop power ballads?

Anyone who has ever watched an episode of Law and Order knows that you can tell your lawyer something and they are required to keep it secret. Right? Come on, John Grisham made a career writing about essentially this one legal principle.

Well, in Korea, it works a little differently. The Korean Attorneys Act does prevent attorneys from disclosing confidential information obtained during the course of their professional duties. Further, the Korea Criminal Procedure Act allows attorneys to refuse seizure of, or testimony with respect to, confidential information they receive during the course of their practice. Korean law does not, however, explicitly create a privilege that protects attorney-client communications from discovery in court.

On May 17, 2012, the Korean Supreme Court handed down its first judgment regarding the attorney-client privilege. The case followed an earlier Seoul High Court finding that legal opinions prepared for a client, which were seized during a police search, were inadmissible as evidence because of the attorney-client privilege. The Seoul High Court decision relied on the Korean constitution, which provides the right to assistance of counsel.

 The Supreme Court, however, overruled the Seoul High Court’s decision, ruling that no clear statutory grounds for the attorney-client privilege exist under Korean law. Hence, even though Korean attorneys have an obligation to not disclose confidential attorney-client communications, it is at least possible for these communications (emails, etc.) to be disclosed in a court room.

So, did I convince you that this stuff can be interesting?

Did I go too fast? Was it still about as fun as watching C-Span reruns? What can I say? I tried. Writing it sort of felt like performing a quick wardrobe change at fashion show and then stumbling onto the cat walk half dazed, but earnestly trying to look composed and beautiful. In future articles, I will delve into more details—especially as they relate to current events. But before I go, I must add that if you need actual legal advice in Korea, ignore this and contact a licensed professional—preferably one from my firm. Just kidding, sort of.

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Nathan McMurray has a lengthy background in Korea and China as both a scholar and a legal professional working with global companies on corporate advisory and dispute resolution matters. He currently works for Barun Law and writes a blog about law and politics (and whatever other matters he may be interested in at the moment) at korealawtoday.com.


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