THE JUDICIAL SYSTEM
Foreign laws have repeatedly influenced Korea. Korea
assimilated the codes of various Chinese dynasties through the
close of the Chosn Dynasty and Western law (Continental Law)
during the Japanese occupation (1910-45). Although Confucian
legal culture exerts strong influence on North Korea's legal
attitudes, the modern legal system initially was patterned after
the Soviet model imposed during the period of Soviet occupation
Neo-Confucian thought does not distinguish among politics,
morality, and law. Law in traditional Korea was concerned with
the control and punishment of deviance by the centralized
bureaucratic political system rather than by private
relationships or contracts. The elite viewed law as a last resort
against a morally intractable person. The rule of law was little
understood by the general population, which often saw it
manifested only as an autocratic decree or as a tool of rigid
political regimentation. These notions persist as part of the
legal culture of North Korea.
No concepts in the Chosn Dynasty corresponded to the Western
concept of right. Although in principle all classes were
guaranteed property rights and the rights to act and initiate
legal proceedings, the class nature of society meant that those
rights were virtually meaningless for all but the elite. Social
stratification was paralleled by de facto legal stratification.
Noblemen, or yangban, had full exercise of their "rights."
The theoretical rights of the middle class and lesser bureaucrats
had practical limits, and the commoners and the lowest classes
basically had no legal rights.
Morality and politics were reflected in the administration of
justice; and structural differentiation among adjudicative,
legislative, and administrative functions was contrary to
Confucian substantive justice. The magistrate, a generalist
scholar-official, was charged with both governing and
adjudicating. Legal specialists, who were not from the
yangban class, never developed into a professional group.
Korea's traditional legal system outwardly disappeared with
the incorporation of modern Western law beginning with the Kabo
Reforms of 1894 and ending with the imposition of Japanese legal
concepts during the Japanese colonial period
(see The Legacy of Japanese Colonialism
, ch. 1). Traditional legal thought, however,
continued to influence North Korean attitudes toward the purpose
and function of legal institutions.
With the end of the Chosn Dynasty in 1910, decisive changes
occurred in Korean law. Traditional Korean institutions suddenly
were replaced. The imposition of institutions by the Japanese and
their post-1910 use for repressive colonial control constituted a
sharp break with the past. Because of the nature of Japanese
colonial rule, there was no constitutional law, guarantee of
rights, or judicial review of the exercise of political power.
The legal system of Korea under Japanese rule was composed
essentially of rules, duties, and obligations. However, there was
no institutional or procedural separation of powers. The Japanese
governor-general had unrestrained executive and legislative
power, the latter exercised by decree.
With the end of World War II came Soviet occupation. During
this period, Soviet legal concepts and codes, as well as the
court and procurator structure, were embraced. Soviet legal
concepts were the basis for the Court Organization Law of March
1, 1950, and the Criminal Code and Code of Criminal Procedure,
both issued on March 3, 1950. In December 1974, a new Criminal
Code (five parts, 215 articles) was issued, but few details were
revealed to the general public, and its promulgation was not
known to outside sources until the late 1980s. The Penal Code
(eight chapters, 161 articles) was adopted by the Supreme
People's Assembly on February 5, 1987.
Data as of June 1993