South Korean law
Encyclopedia
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 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. http://www.ccourt.go.kr/english/history.htm
The judicial system of South Korea is composed of the Supreme Court of South Korea
, the Constitutional Court of South 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 feb 2nd 2008 a limited system of juries
has been adopted for criminal cases and environmental cases, and all questions of law
and fact
are decided by judges.
over minor cases, such as small claims cases where the amount in controversy does not exceed 20 million won
or misdemeanor trials in which the maximum possible sentence is 30 days in jail or a fine not exceeding 200,000 won. There are currently 103 municipal courts in South Korea.
In the System of Justice in South Korea,
over cases in which a single District Court or Branch Court judge has rendered the decision. In most cases, a single judge hears the case and renders a verdict, although in particularly important or serious cases, a trial panel of three judges may hear the case and render a decision. An appellate panel is also composed of three District Court judges.
, Busan
, Daegu
, Daejon, and Gwangju
. Additionally, a special panel of the Gwangju High Court has been established in the Jeju
District Court.
and subsequently confirmed by the Supreme Court Justices Council (a council composed of the Justices of the Supreme Court). Judges serve terms of 10 years, and may be re-appointed to their positions. The Constitution states that judges may not be removed from their offices except through impeachment, conviction of a crime and sentencing to imprisonment, or should they be unable to discharge their duties due to serious mental or physical impairment.
The nomination process and terms of service above do not apply to Justices of the Supreme Court or to Justices of the Constitutional court, each of which has its own nomination process and term of service. See Supreme Court of South Korea
and Constitutional Court of South Korea for the regulations for each.
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.. The Constitutional Court has narrowed the applicational scope of the National Security Act over the years.
Nevertheless, Korean activist lawyers had managed to become a formidable institution within Korea's legal system, in part due to the election of Roh Moo-hyun as president.
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 poses a risk of escape or destruction of 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 must 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.
is organized into 372 articles, further organized into 4 chapters of general provisions and 42 chapters of specific provisions. Adultery
and abortion
are both punishable by the Korean Penal Code.
(민법,民法) and the commerce code (상법,商法). The civil code
of Korea was enacted in 1960 and is based upon the Japanese civil code
which was the used in Korea prior to the enactment.
South Korea
The Republic of Korea , , is a sovereign state in East Asia, located on the southern portion of the Korean Peninsula. It is neighbored by the People's Republic of China to the west, Japan to the east, North Korea to the north, and the East China Sea and Republic of China to the south...
is a civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
system that has its basis in the Constitution of the Republic of Korea
Constitution of the Republic of Korea
The Constitution of the Republic of Korea is its basic law. It was promulgated on July 17, 1948, and last revised in 1987.- History :...
.
History
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 RepublicSixth Republic of South Korea
The Sixth Republic of South Korea is the country's present-day government. It began in 1987, with the transfer of power from the authoritarian Fifth Republic of Chun Doo-hwan....
.
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. http://www.ccourt.go.kr/english/history.htm
Judicial System
Korea was a feudal society and had King's official supreme powers until after the Korean War, when elements of a legal system were introduced by the United States, as they did in Japan by influencing the writing of the Constitution.The judicial system of South Korea is composed of the Supreme Court of South Korea
Supreme Court of South Korea
The Supreme Court of Korea is the highest court in South Korea. It is located in Seoul.Articles 101-110 of the Constitution of the Republic of Korea establish the Supreme Court and enumerates its powers and responsibilities.-Composition:...
, the Constitutional Court of South 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
Constitution of the Republic of Korea
The Constitution of the Republic of Korea is its basic law. It was promulgated on July 17, 1948, and last revised in 1987.- History :...
.
There is no system of juries
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
in the judicial system of South Korea, although since feb 2nd 2008 a limited system of juries
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
has been adopted for criminal cases and environmental cases, and all questions of law
Question of law
In jurisprudence, a question of law is a question which must be answered by applying relevant legal principles, by an interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence, and inferences arising from those facts...
and fact
Question of fact
In law, a question of fact is a question which must be answered by reference to facts and evidence, and inferences arising from those facts. Such a question is distinct from a question of law, which must be answered by applying relevant legal principles...
are decided by judges.
Municipal Courts
The Municipal Courts only exercise original jurisdictionOriginal jurisdiction
The original jurisdiction of a court is the power to hear a case for the first time, as opposed to appellate jurisdiction, when a court has the power to review a lower court's decision.-France:...
over minor cases, such as small claims cases where the amount in controversy does not exceed 20 million won
South Korean won
The won is the currency of South Korea. A single won is divided into 100 jeon, the monetary subunit. The jeon is no longer used for everyday transactions, and appears only in foreign exchange rates...
or misdemeanor trials in which the maximum possible sentence is 30 days in jail or a fine not exceeding 200,000 won. There are currently 103 municipal courts in South Korea.
In the System of Justice in South Korea,
District Courts
The 18 District Courts have original jurisdiction over most civil and criminal cases. Additionally, the District Court appellate panel may exercise appellate jurisdictionAppellate jurisdiction
Appellate jurisdiction is the power of the Supreme Court to review decisions and change outcomes of decisions of lower courts. Most appellate jurisdiction is legislatively created, and may consist of appeals by leave of the appellate court or by right...
over cases in which a single District Court or Branch Court judge has rendered the decision. In most cases, a single judge hears the case and renders a verdict, although in particularly important or serious cases, a trial panel of three judges may hear the case and render a decision. An appellate panel is also composed of three District Court judges.
Branch Courts
Branch Courts are organized under and considered a part of the District Courts. The Branch Courts function much as the District Courts do, but lack any appellate function. There are currently 40 Branch Courts in South Korea.High Courts
The six High Courts have appellate jurisdiction over cases decided by a trial panel of three judges in a District Court or Family Court, decisions of the Administrative Court, and civil cases heard before the District Court in which one judge decided and where the amount in controversy exceeds 50,000,000 won. Appeals to the High Court are heard by a panel of three High Court judges. High Courts are located in SeoulSeoul
Seoul , officially the Seoul Special City, is the capital and largest metropolis of South Korea. A megacity with a population of over 10 million, it is the largest city proper in the OECD developed world...
, Busan
Busan
Busan , formerly spelled Pusan is South Korea's second largest metropolis after Seoul, with a population of around 3.6 million. The Metropolitan area population is 4,399,515 as of 2010. It is the largest port city in South Korea and the fifth largest port in the world...
, Daegu
Daegu
Daegu , also known as Taegu, and officially the Daegu Metropolitan City, is a city in South Korea, the fourth largest after Seoul, Busan, and Incheon, and the third largest metropolitan area in the country with over 2.5 million residents. The city is the capital and principal city of the...
, Daejon, and Gwangju
Gwangju
Gwangju is the sixth largest city in South Korea. It is a designated metropolitan city under the direct control of the central government's Home Minister...
. Additionally, a special panel of the Gwangju High Court has been established in the Jeju
Jeju-do
Jeju-do is the only special autonomous province of South Korea, situated on and coterminous with the country's largest island. Jeju-do lies in the Korea Strait, southwest of Jeollanam-do Province, of which it was a part before it became a separate province in 1946...
District Court.
Judges
Judges in South Korea are nominated for their position by the Chief Justice of the Republic of KoreaChief Justice of the Republic of Korea
The Chief Justice of the Republic of Korea is the Chief Justice of the Supreme Court of Korea. The Chief Justice is considered the head of the judicial branch of the South Korean government.The current Chief Justice of the Republic of Korea is Lee Yong-hun....
and subsequently confirmed by the Supreme Court Justices Council (a council composed of the Justices of the Supreme Court). Judges serve terms of 10 years, and may be re-appointed to their positions. The Constitution states that judges may not be removed from their offices except through impeachment, conviction of a crime and sentencing to imprisonment, or should they be unable to discharge their duties due to serious mental or physical impairment.
The nomination process and terms of service above do not apply to Justices of the Supreme Court or to Justices of the Constitutional court, each of which has its own nomination process and term of service. See Supreme Court of South Korea
Supreme Court of South Korea
The Supreme Court of Korea is the highest court in South Korea. It is located in Seoul.Articles 101-110 of the Constitution of the Republic of Korea establish the Supreme Court and enumerates its powers and responsibilities.-Composition:...
and Constitutional Court of South Korea for the regulations for each.
Civil Rights
Citizens of the Republic of Korea are guaranteed several rights by Chapter II of the Constitution. These rights include (but are not limited to):- freedom of speech, religion, assembly, and the press;
- the rights to vote, hold public office, and petition the government;
- protections against double jeopardyDouble jeopardyDouble jeopardy is a procedural defense that forbids a defendant from being tried again on the same, or similar charges following a legitimate acquittal or conviction...
, involuntary labor, ex post facto lawEx post facto lawAn ex post facto law or retroactive law is a law that retroactively changes the legal consequences of actions committed or relationships that existed prior to the enactment of the law...
s, and warrantless searches of residences; and - the rights of education, work, marriage, and health
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
National Security Act (South Korea)
The National Security Law is a South Korean law which has the avowed purpose "to restrict anti-state acts that endanger national security and to protect [the] nation's safety and its people's life and freedom."...
, 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.. The Constitutional Court has narrowed the applicational scope of the National Security Act over the years.
Nevertheless, Korean activist lawyers had managed to become a formidable institution within Korea's legal system, in part due to the election of Roh Moo-hyun as president.
Criminal Law
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 which 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.Due process
Both the Constitution and the Penal code contain provisions which prohibit ex post facto lawsEx post facto law
An ex post facto law or retroactive law is a law that retroactively changes the legal consequences of actions committed or relationships that existed prior to the enactment of the law...
and violations of due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
. 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
In flagrante delicto
In flagrante delicto or sometimes simply in flagrante is a legal term used to indicate that a criminal has been caught in the act of committing an offence...
, or where a person suspected of a sufficiently serious crime poses a risk of escape or destruction of 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 must 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
Right to petition
The right to petition government for redress of grievances is the right to make a complaint to, or seek the assistance of, one's government, without fear of punishment or reprisals.-United States:...
the court for habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
. 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.
The Korean Penal Code
The Korean Penal codePenal code of Korea
Penal code of Korea is composed with two parts, a general regulation and each crime.In general regulations, there are four parts, 1. Application scope of Criminal law, 2. Crime, 3. Punishment, 4...
is organized into 372 articles, further organized into 4 chapters of general provisions and 42 chapters of specific provisions. Adultery
Adultery
Adultery is sexual infidelity to one's spouse, and is a form of extramarital sex. It originally referred only to sex between a woman who was married and a person other than her spouse. Even in cases of separation from one's spouse, an extramarital affair is still considered adultery.Adultery is...
and abortion
Abortion
Abortion is defined as the termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually called a miscarriage, or it can be purposely induced...
are both punishable by the Korean Penal Code.
Private Law
Private Law issues in Korea are regulated by the civil codeCivil code of Korea
The Civil Code of the Republic of Korea was passed in 1958 as Law No. 471 and is known in South Korea as one of the three fundamental laws, the other two being Criminal law and constitution...
(민법,民法) and the commerce code (상법,商法). The civil code
Civil code
A civil code is a systematic collection of laws designed to comprehensively deal with the core areas of private law. A jurisdiction that has a civil code generally also has a code of civil procedure...
of Korea was enacted in 1960 and is based upon the Japanese civil code
Civil code
A civil code is a systematic collection of laws designed to comprehensively deal with the core areas of private law. A jurisdiction that has a civil code generally also has a code of civil procedure...
which was the used in Korea prior to the enactment.
International Laws and Treaties
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.See also
- List of Korea-related topics
- Constitution of the Republic of KoreaConstitution of the Republic of KoreaThe Constitution of the Republic of Korea is its basic law. It was promulgated on July 17, 1948, and last revised in 1987.- History :...
- Constitutional Court of KoreaConstitutional Court of KoreaThe Constitutional Court of Korea is an independent and specialised court in South Korea, whose primarily role is the reviewing constitutionality under the Constitution of the Republic of Korea...
- Supreme Court of South KoreaSupreme Court of South KoreaThe Supreme Court of Korea is the highest court in South Korea. It is located in Seoul.Articles 101-110 of the Constitution of the Republic of Korea establish the Supreme Court and enumerates its powers and responsibilities.-Composition:...
- Politics of South KoreaPolitics of South KoreaPolitics of the Republic of Korea takes place in the framework of a semi-presidential representative democratic republic, whereby the President is the head of state, and of a multi-party system. Executive power is exercised by the government. Legislative power is vested in both the government and...