Korean Law

This is the first book on Korean legal history in English written by a group of leading scholars from around the world. The chapters set forth the developments of Korean law from the Chosŏn to colonial and modern periods through the examination of codified laws, legal theories and practices, and jurisprudence. The contributors' shared premise is that the evolution of Korean law can be best understood when viewed in terms of its interactions with outside laws. Each chapter integrates literature in Korean, Japanese, Chinese, and Western languages into comprehensive analyses to make up-to-date research available to readers both inside and outside Korea. This volume provides a solid framework from which to approach Korean legal history in the perspective of comparative legal traditions.

The Republic of Korea has a long history with a tumultuous period of struggles between the Joseon Dynasty and Japanese Imperial colonization to the subsequent Civil War. Throughout this period the religious movement of Jehovah"s Witnesses consistently suffered from a range of human rights abuses due to their refusal to bear arms. This paper will consider the historical context and consistency of Jehovah"s Witness" non-violent theology across several countries both during and after the World War II period which has extended through various regimes. It will further discuss the unique perspective in relation to the 70 years of legal and physical persecution perpetrated by several regimes as well as the social stigmas and economic hardships faced by conscientious objectors. It will discuss the development recognition of the need for alternative service on constitutional grounds and the benefit to society as a whole for the adoption of such a program along with criteria that would ensure a fair national system of alternative service for those who qualify. Legal developments in the recognition of the responsibilities of the Republic of Korea as a member state of the United Nations and need for compliance with "freedom of conscience" and "freedom of religion" in accord with the Universal Declaration of Human rights will also be examined.

This Chapter sets forth the spread of law from a comparative perspective, with emphasis on customary law in Europe and East Asia. The concept of custom as a source of law played the role of important machinery in the process of adopting a new legal system from outside. Traditional view has been that custom was the universal origin of law, emerging spontaneously in social existence, but history has shown, from medieval France through Meiji Japan, that heightened attention to custom took place in the contexts of external stimulus of alien law and conscious state effort to unify legal sources and centralize the realm. Custom as an instrument for precipitating change saw a dramatic revival in colonial law in the late nineteenth and early twentieth centuries. Diffusion of civil law through the medium of custom has a long and deep history.

Recent colonial compensation lawsuits reflect the metamorphosis of historical grievances in collective public memory into tort claims in private law. This article provides a synthetic view of the nexus of colonial law and
history in South Korea–Japan relations, focusing on cross-border litigation brought by former forced laborers and victims of sexual servitude known as “comfort women” during World War II. The concept of public policy (ordre public) in Korea, which has colonial origins, has long served law courts as the standard for deciding the validity of a juristic act. But of late heavy reliance on the general clauses of law in legal proceedings has risked turning history and law into handmaids of national spirit, muddling historical accountability and legal liability. Improvement of South Korea–Japan ties should start from a more accurate understanding of colonial laws and a rounded appreciation of their shared legal history.

The Korean Constitutional Court (KCC) recently ruled in 27-1(A) KCCR 20, 2009HunBa17· 205 (Consolidated), February 26, 2015 (hereinafter the “2015Decision”), that Article 241 of the Criminal Act related to adultery is unconstitutional due to its abuse of sexual autonomy and the freedom and privacy of personal life. It was a change of stance from the previous constitutional interpretations upheld in over four judicial rulings. In Korea, the legislature and executive are often criticized for their lack of contribution to decriminalization. They are in fact responsible for an increase in the criminal law. Therefore, the significance of this recent additional ‘decriminalizing’ decision by the Constitutional Court must be highlighted, providing a crucial step towards decriminalization. This 2015Decision on unconstitutionality reflects the trend of the rest of the world where many countries are banning the criminal regulation of adultery and the fact that some doubts are cast on whether t...

Both the Netherlands and South Korea have statutory severance pay that is similar in form(ula) but differs in purpose. Dutch severance pay originated as compensation for unfair dismissal calculated by a judge on a case-by-case basis.
This became more standardized, resulting in a formula that is nearly identical to Korea’s, although the reason for termination is still a factor in Dutch severance pay. While the Netherlands has been standardizing severance pay, Korea has been trying to replace it with a retirement pension plan system. The reason why one jurisdiction tries to abolish an institution that another jurisdiction is developing lies in severance pay’s perceived purpose. Dutch severance pay has originally been conceptualized as dismissal protection. Korean severance pay has been instituted in the 1960s as a substitute for retirement benefits. This research argues that instead of its social function the perceived purpose of severance pay – what it ought to do – has been leading in the reform debate.
The central question this research tries to answer is, therefore, how severance pay’s perceived purpose has influenced its development in the Netherlands and South Korea. This is an important question because the initial choice for a certain policy (change) causes intellectual path dependence. After giving a functional definition of severance pay, this paper compares severance pay law in Korea and the Netherlands based on an analysis of its historical development.
It concludes that the perceived purpose was one major factor limiting the way legal scholars and policymakers approached the reform debate, especially when it came to the choice for alternatives to consider and legal systems to compare.

Are legal traditions incommensurable? Professor H. Patrick Glenn argued that the idea that legal traditions were not suitable for comparison was a result of the reification of cultures. This chapter discusses Glenn’s insights of tradition and commensurability by examining the variants of the concepts and practices of lineage property in historical Confucianism. In the Confucian sphere of influence, marked by the shared precept of ancestral worship and primacy of ritual obligation, legal developments concerning lineage organization and property converged and diverged, revealing the complexity in humanity’s efforts to respond to the various challenges it faced. This examination illustrates Glenn’s central idea that legal traditions of the world are not only comparable and translatable but also transplantable. Transformation and transmission of law in East Asia underscore the need to compare legal traditions, both within and without in all its independence and interdependence, and further to understand the past in its own terms in all the interconnectedness of autonomous dimensions of life at a given time.

This Article sets forth a historical overview of the evolution of lineage property and succession law in Korea from the premodern through contemporary times. The desire to continue the family and safeguard patrimonial integrity is arguably a universal phenomenon, but the primacy of Confucian ancestral rituals during the Chosŏn dynasty (1392-1910), combined with the indigenous kinship structure, created a distinct lineage organization and culture. The strict primogenitary order and postmortem adoption practices ensured agnatic succession through ritual heir, which rendered the concepts of vacant succession and succession in abeyance theoretically irrelevant, if not inconceivable. Korea did not see the rise of joint property-holding corporate clan estates as in China. Under Japanese rule (1910-1945), ritual-based succession and property relations underwent major reconfigurations in law. The evolving colonial jurisprudence on lineage assets and also on the property of the houses that went extinct illustrated the effort of the courts to negotiate between traditional normativity and modern civil law. In modern Korean law, a lineage group is construed as an unincorporated association and disputes over its assets continue to arise. Investigation of lineage property offers an opportunity to explore how Confucian ideology and its precepts have influenced Korean law and history over centuries. It demonstrates that East Asian legal tradition needs to be assessed through comparison of cultural and social realities in different countries, in all their independence and interdependence.

Cet article examine l’évolution du droit et de la pratique de la propriété lignagère et de la succession en Corée, depuis la dynastie Chosŏn jusqu’à la période coloniale japonaise et aux temps modernes. La primauté du culte des ancêtres, combinée à la structure sociale basée sur la parenté, ont débouché, pour la Corée prémoderne, sur la constitution d’une structure institutionnelle lignagère unique en son genre. Le strict respect de la primogéniture la distinguait des domaines corporatifs de la Chine, structurés autour d’une lignée d’ancêtres. La succession agnatique et les pratiques d’adoption de l’héritier rituel rendaient les notions de succession vacante et jacente non pertinentes, voire inconcevables, pendant la période du Chosŏn. L’abolition de la succession rituelle par la cour coloniale japonaise a ensuite marqué une ingérence de l’État dans un domaine auparavant laissé à l’autonomie de la communauté. La jurisprudence coloniale sur les propriétés de lignage montre comment les juges ont négocié entre les usages traditionnels et les exigences du droit civil. Le Code civil coréen, promulgué en 1958, contient encore de nombreux éléments issus de la tradition confucéenne. La redéfinition en cours du statut des groupes lignagers et de leurs biens dans le droit moderne témoigne des mutations de la frontière entre rites et droits dans la tradition juridique du pays. La question de la propriété des lignages ouvre des perspectives significatives sur la culture, l’histoire et le droit de la Corée.