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South Korea CRIMINAL JUSTICE
Throughout Korea's history, the assimilation of foreign laws
has taken place in waves. Korea assimilated the codes of the
Chinese Qin, Wei, and Tang dynasties in the early Three Kingdoms
period, the codes of the Tang, Song, and Yuan dynasties in the
Koryo period (918-1392), the Ming Code in the Choson Dynasty
(1392-1910) period, Western civil law at the close of the Choson
Dynasty and during the Japanese occupation, and both Continental
Law and Anglo-American law after liberation in 1945. The Choson
Dynasty also produced numerous codifications of Korean law and
created new laws as necessary to deal with economic, social, and
other public policy issues. Confucian values exerted strong
influence on Korea's traditional law.
With the end of the Choson Dynasty in 1910, decisive changes
occurred in Korean law. Traditional Korean institutions were
suddenly replaced. Reform measures, characterized by the
introduction of Western institutions, began with the Kabo Reforms
(1894-95) forced on Korea by Japan and modeled on the Japanese
reforms of the Meiji Restoration (1868). These hasty reforms
produced many laws translated from Japanese codes, which in turn
had their origins in Roman and Germanic laws. The imposition of
institutions by the Japanese and their post-1910 use for
repressive colonial control constituted a sharp break with the
Korean past.
The Westernized legal system's key features included its
origin in the European civil law tradition; prominent roles for
legal scholars, university professors, and legislators, rather
than judges; codified law rather than precedent as the major
source of law; and an inquisitorial rather than adversarial court
procedure. In other respects, however, Japanese colonial rule
continued several features of the traditional Korean legal order.
Under Japanese colonial rule, for example, there was no
constitutional law, no guarantee of rights, and no judicial
review of the exercise of political power. The legal system of
Korea under Japanese rule was composed essentially of rules,
duties, and obligations. Further, there was little institutional
or procedural separation of powers. The Japanese governor general
had even greater executive and legislative power than traditional
Korean kings and ruled through a large, efficient, and modern
bureaucracy.
After independence, revulsion over the Japanese occupation
motivated Korean officials to devise a new codification designed
to replace all Japanese laws, decrees, and orders, as well as the
regulations and decrees of the United States Army Military
Government in Korea (1945-48) with Korean codes. The process took
ten years. Eventually, the Criminal Code (1953), the Code of
Criminal Procedure (1954), the Civil Code (1958), the Civil
Procedure Law (1960), and the Commercial Code (1962), as well as
other codes--deliberately distinguished from previous Japanese
codes--were adopted. In most substantive areas, however, South
Korean law retained the most fundamental principles and
procedures of continental jurisprudence as originally received
through Japan.
The Code of Criminal Procedure (1954) governed most aspects
of the enforcement of criminal justice. The code retained the
basic characteristics of the European continental legal system
and had some features of Anglo-American law. Among the features
adapted from the United States legal system were a requirement
for judicial warrants; modification of preliminary examination;
strengthening of the system of state-appointed counsel; rejection
of hearsay evidence as a matter of rule; and a requirement for
corroborating evidence obtained in confessions.
The first exclusionary ruling on a confession in a South
Korean court based on the constitutional guarantee of the right
to legal counsel occurred in late 1989. Law enforcement and
security agency officials, however, did not consider themselves
compelled to adhere to legal precedents or court rulings when
subsequently investigating other cases. Police and prosecutors,
especially in political or espionage cases, still limited the
frequency and length of defendants' meetings with counsel, except
when taking written statements. Legislative action was needed for
the South Korean system to proceed beyond court redress of
specific violations in specific cases to the establishment of
general guidelines.
Data as of June 1990
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