Dispute Resolution System in Korea

Dispute Resolution System in Korea

I. The courts

1. Constitutional Court

The power to determine the constitutionality of laws is vested in the Constitutional Court. A judgment by the Court that a law is unconstitutional binds the ordinary courts, other state organizations, and local governments. When laws or provisions thereof are declared unconstitutional by the Court, they lose effect from the date of adjudication, but laws relating to criminal penalties lose effect retroactively.

A. Judgment on Impeachment

The Constitutional Court has jurisdiction over impeachment brought against certain high-ranking public officlas, including the President of the Republic, the Prime Minister and the members of the State Council or Ministers of Executive Ministers.

Such a motion for impeachment must be proposed by one-third or more of the total members of the National Assembly, and passed by a concurrent vote of a majority of the total members of the National Assembly. However, a motion to impeach the President of the Republic must be proposed by a majority of all the members of the National Assembly and approved by at least two-thirds of all the members of the National Assembly.

B. Judgment on Dissolution of a Political Party

The Constitutional Court has jurisdiction over the dissolution of political parties. This jurisdiction is assigned to the Constitutional Court for the purpose of protecting fundamental democratic order from a political party.

C. Judgment on competence Dispute

The Constitutional Court has jurisdiction over Competence or Jurisdictional Disputes between governmental entities. If any controversy regarding the existence of jurisdiction occurs between organs of the State and a local government, or between local governments, an organ of the State or local government may request in writing a judgment of the Constitutional Court as to respective competence

D. Judgment on Constitutional Complaint

Under the Constitutional Court Act, anyone whose fundamental rights guaranteed by the Constitution have been infringed through the exercise or nonexercise of governmental powers may petiton the Constitutional court for relief. If a legislative act, presidential decree, ordinance or other law directly infringes upon an individual’s fundamental or basic rights, the individual may file a Constitutional Complaint against the law itself.

Constitutional Complaints must be filed within ninety days from the day the cause was known or within one year days from the day the cause occurred. However, when prior remedy procedures were requested, a Constitutional Complaint must be made within thirty days from the day the notice of the decision of final procedure was received.

Uncommon to other Constitutional Courts which allow Constitutional Complaints, another kind of Constitutional Complaint is prescribed in Article 68(2) of the Constitutional Court Act. Any party to an ordinary court proceeding, whose motion for referral to the Constitutional Court for a judgment on the constitutionality of a law was rejected by the court of original jurisdiction. This avenue is available in case the ordinary courts do not request a judgment of the constitutionality of a law by the Constitutional Court even though the law is suspected to be unconstitutional. A Constitutional Complaint according to the Article 68(2) must be requested within thirty days from the day the refusal of the court was decided.

Currently in Korea, as in most countries which have Constitutional Courts, the proportion of Constitutional Complaint cases in comparison to the total number of all cases has been the highest. Therefore, the Court has created a prior examination bench, the “Small Bench”, to determine whether a Constitutional Complaint will be accepted to be heard by the Court. A Small Bench is composed of a Constitutional Complaint. To determine and invalidated a Constitutional Court and the Bench takes charge of prior examinations of a Constitutional Complaint. To determine and invalidate a Constitutional Complaint, the Small Bench needs a unanimous vote of all the participating Justices.

A judgment accepting a Constitutional Complaint by the Full Bench of the Constitutional Court to accept a Constitutional Complaint binds all organs of the State and local governments.

2. Civil courts

In civil cases, the court deals with civil disputes surrounding the rights of property or legal relations.

A. Trial Proceedings

Civil proceedings begin when a plaintiff or his/her attorney files a complaint with a District Court, a Branch Court, or a Municipal Court. When the complaint is filed, the court serves the defendant with a duplicate and requires him/her to file a written answer within 30days. If the defendant fails to file a written answer within such limit, the court may render a judgment without hearings. If the defendant submits a written answer, the court holds the pleading process (proceeding whereby both parties, in writing, enter into offense and defense on allegations and evidence) and the hearings (proceeding whereby both parties appear before the court to clarify their respective positions on disputed issues as well as to examine witnesses), and then renders a judgment.

B. Appeal Proceedings

The losing party who is dissatisfied with the findings of facts or conclusions of law by the trial court can appeal the judgment rendered by the trial court within two weeks from the date the judgment is served. In general, the High Courts hear appeals with the exception that the appellate panels of the District Courts hear appeals when the amount in controversy does not exceed 50 million Korean won. The appeal proceedings are similar to the trial proceedings, and the party is granted an opportunity to make new allegations and to produce new evidence.

The party who is dissatisfied with the judgment of the court of appeals may appeal to the Supreme Court, the court of last resort, within two weeks from the date the judgment is served. As the Supreme Court hears only matters of law, appeals cannot be lodged with the Supreme Court unless the judgment of the court of appeals erred in conclusion of law or appeal proceedings were in grave contravention of law.

C. Trial Proceedings on a small Claim Case

A small claim case is a case in which the plaintiff claims payment of money, fungibles, or securities not exceeding 20 million Korean won. A District Court, a Branch Court, and a Municipal Court take charge of small claim suits, which amount to over 70 percent of all civil suits. The trial proceedings on a small claim adopt various procedures to expedite the resolution of the cases.

The trial proceedings on a small claim, which feature expeditious and convenient processes for resolving disputes, contribute to the protection of the rights of the public. Only about two percent of the judgment rendered by the trial courts on small claim cases are appealed.

D. Civil Execution of Claims Procedure

A civil execution of claims procedure includes a procedure of compulsory execution as well as a procedure of foreclosure.

Compulsory execution is the procedure whereby the creditor obtains a satisfaction of his/her claim with the assistance of the state, from the property of the debtor who does not voluntarily perform his/her obligation even though the judgment has been rendered against him/her. Authorities other than the judgment, such as a payment order, or notarial deed can also be a basis for execution. The property of the debtor, which is subject to execution, includes real property, ships, automobiles, construction equipment, aircraft, movable property, and bonds. It is the court that enforces the compulsory execution on most property. However, in case of movable property, the marshal enforces the compulsory execution.

The most frequently used compulsory execution is execution sale of real property whereby the court seizes and sells real property of the debtor by an open tender. The proceeds are distributed among creditors.

Foreclosure is a legal proceeding instituted by the lender (the mortgagee) to force a sale of the mortgaged property in order to satisfy the unpaid debt secured by the property. The procedure of foreclosure is similar to that of execution sale of real property.

E. Statement of Property, Debt Defaulter Roster, and Property Inquiry

These methods are devised to secure the effectiveness of compulsory execution as well as to enable the judgment creditor to easily obtain satisfaction of his/her claim.

In the event that a debtor does not discharge a pecuniary obligation and it is difficult to ascertain the property of the debtor, the creditor who is entitled to make a request for compulsory execution, may request the court to order the debtor to tender a list of property which clearly specifies property in his/her possession. If the debtor fails to comply with the court’s order or tenders a false list of property, he/she is subject to imprisonment, fine or confinement.

If the debtor does not discharge his/her obligation within 6 months after a money judgment becomes final and conclusive, fails to comply with the court’s order to tender a list of property, or tenders a false list of property, the creditor may request the court to enter him/her in a debt defaulter roster. When the debtor is listed in the debt defaulter roster, such information is provided to financial institutions and the debtor may face difficulty in carrying on future credit transactions.

The Civil Execution Act introduces a new method through which inquiries about the debtor’s property can be made. If the debtor fails to comply with the court’s order to tender a list of property, or tenders a false list of property, the creditor may request the court to make inquiries about the debtor’s property. The court, pursuant to the creditor’s request, makes inquiries at the institutions which keep information on the debtor’s real property or financial assets in the form of electronic data, and orders them to submit such information. The creditor, then, can make use of information submitted by the institutions and move to the execution stage.

F. Provisional Attachment and Provisional Disposition Procedure

If the debtor hides or disposes his/her property before the compulsory execution procedure is commenced, the creditor is obstructed from obtaining satisfaction of the claim. To prevent such attempts and to secure the debtor’s property, the court may order provisional attachment or provisional disposition, pursuant to the creditor’s request. If it is necessary to preserve the execution of the monetary claim, the court may order the debtor’s property to be put under provisional attachment. Provisional disposition may be granted for the purpose of setting the temporary state of affairs in regard to disputed legal relations or preserving the execution in regard to the claim for delivery of specific immovable or movable property.

3. Criminal courts

In criminal cases, the court determines guilt or innocence of the accused and imposes a sentence when the accused is found guilty

A. Investigation and Accusation

The public prosecutors and police officers take charge of investigation of crimes. As a general rule, the suspect is put under investigation without being arrested or detained. Under certain circumstances, however, the investigative authorities can arrest or detain the suspect after they have obtained a warrant from a judge. If the suspect is caught in the act of committing a crime or exigent circumstances exist, the warrant may be obtained after arrest. The judge issues a warrant only if the suspect has no fixed dwelling or there are reasonable grounds to believe that the suspect may attempt to escape or to destroy evidence.

Criminal proceedings begin when a criminal action is instituted by a public prosecutor unless otherwise provided by law. Unlike the U.S. or U.K., neither a grand jury system nor private prosecution is available in Korea. The public prosecutor may bring a case before the court by summary proceedings when it is deemed that the offense is punishable by fine. In such a case, the judge usually issues the summary order without holding a trial, he/she can refer the case to regular trial proceedings. The accused may also request regular trial proceedings within 7 days from the date of the notification of the summary order.

B. Hearing

The hearing is held at the courtroom on the hearing date and is open to the public. It starts with the presiding judge asking the accused personal identification such as name and date of birth. Then follow a statement by the public prosecutor of the essentials of the accusation, direct questioning of the accused by the public prosecutor, cross-examination of the accused by the defense counsel, examination of evidence, statement of opinion by the public prosecutor, closing argument by defense counsel, and final statement by the accused.

After the conclusion of the aforementioned, the court closes the hearing and renders a judgment.

C. Right to Counsel

The accused is entitled to receive the assistance of counsel for his/her defense in the course of investigation as well as trial proceedings. Trial proceedings cannot proceed in the absence of defense counsel when the accused is charged with an offense punishable by death penalty, life imprisonment, or imprisonment for a minimum of three years. In such a case, if no defense counsel has been appointed by the accused, the court should assign a defense counsel ex officio.

Moreover, the court should also assign a defense counsel ex officio in the following circumstances: where the accused is a minor; where the accused is 70 years of age or over; where the accused is deaf-and-dumb; where the accused is suspected of mental and physical unsoundness; and where there is a request by an indigent defendant. The defense counsel assigned by the court is called “assigned counsel” or “public defender”.

D. Request for Warrant of Detention and Examination of the Suspect

In the event that the investigative authorities, after arrest of the suspect, seek a warrant of detention, the suspect, his/her defense counsel, legal representative, spouse, lineal relative, brother or sister, head of a household, member of a family, cohabitant, or employer may request the judge to examine the suspect before deciding on whether to issue a warrant of detention. The public prosecutor or police officer should inform the suspect of the right to request examination and indicate on the record whether the suspect has requested examination or not.

When the investigative authorities seek a warrant of detention for suspect who is not under arrest, the judge if it is deemed necessary, may examine him/her ex officio before deciding on whether to issue a warrant of detention.

Examination of the suspect is presided over by the judge. The suspect and his/her defense counsel are granted the opportunity to fully state the opinion concerning the offense he/she is suspected of and the grounds for detention. Taking into account the result of examination as well as the records submitted by the investigative authorities, the judge decides on whether the grounds for detention exist and whether the circumstances justify the detention.

E. Review of Legality of Arrest and Detention, and Release on Bail

The suspect or any of the concerned persons mentioned above may request the competent court to review the legality of arrest or detention before the public prosecutor institutes a criminal action, when the warrant of arrest or detention has been issued against law or when circumstances have substantially changed after the detention. The court, promptly reviewing the legality of arrest or detention, orders release of the accused where there is a valid ground for the request.

The court may permit release of the accused upon request of the accused or the like, or ex officio under the condition of payment of bail money. This is called release on bail. A written undertaking accompanied by surety insurance policy may be substituted for bail money. When release on bail is granted, the court usually orders the defendant to remain within the physical boundaries of his/her immediate neighborhood or home.

F. Principle of Free Evaluation of Evidence and Confession of the Accused

In criminal proceedings, it lies upon the public prosecutor to prove guilt of the accused. The court determines guilt or innocence of the accused on the basis of evidence produced by the public prosecutor and in conformity with the Constitution and law. When confession of the accused is the only evidence against him/her, he/she shall not be judged guilty. Corroborating evidence in support of confession is indispensable for conviction. Confession of the accused extracted by torture, violence, threat or after unjust prolonged detention, or suspected to have been made involuntarily, shall not be admitted as evidence of guilt.

The accused has the right to remain silent. He/She may refuse to answer any of the questions.

G. Judgment

If guilt has not been proved beyond a reasonable doubt, the court declares the accused not guilty. In such a case, the accused who has been placed under detention is entitled to claim compensation as provided by law. The court finds the accused guilty if the charge against the accused constitutes a crime and evidence is sufficient for conviction. Once the accused is found guilty, the court imposes punishment such as death penalty, imprisonment with labor, imprisonment without labor, deprivation of qualifications, suspension of qualifications, fine, penal detention, minor fine, and confiscation. Imprisonment with or without labor can be either for life or for a specified term. The specified term is usually from on month to 15 years, but it may be extended to 25 years in light of aggravating certain circumstances.

H. Appeal Proceedings

Not only the accused but also the public prosecutor can bring an appeal against the judgment rendered by the trial court within 7 days from the date the judgment is rendered. There is little difference between the appeal and the trial proceedings. In case an appeal has been lodged by the accused, the punishment cannot be severer than the original judgment. Appeal from the judgment of court of appeals may be filed with the Supreme Court within seven days from the date the judgment is rendered. Appeal to the Supreme Court must contain one or more of the grounds specifically prescribed in the Criminal Procedure Act.

I. Summary Trial Proceedings for Minor Offenses

The judge of a District Court, a Branch Court, or a Municipal Court may impose a fine not exceeding 200,000 Korean Won or penal detention for less than 30 days under summary trial proceedings in misdemeanor cases such as violation of Road Traffic Act, or Punishment of Minor Offense Act, etc. The chief of the competent police station, nto the public prosecutor, is entitled to bring a case before the judge under summary trial proceedings.

If the judge deems that the case is inadequate for summary trial proceedings, he/she should dismiss the case. The chief of the police station should then take the case to the District Public Prosecutor’s Office without delay.

Either the accused or the chief of the police station, if dissatisfied with the judgment, may apply for regular trial proceedings within 7 days from the date the judgment is rendered. When judgment under summary trial proceedings becomes final and conclusive, it has the same effect as the final and conclusive judgment under regular trial proceedings.

4. Administrative Court

In administrative cases, the court decides on whether feasance or nonfeasance of administrative entities is illegal and resolves disputes surrounding legal relationships in public law.

Most administrative cases relate to revocation or affirmation of nullity of dispositions or decisions of administrative entities. Dispositions include levy of taxes, suspension or revocation of driver’s license, refusal to pay industrial accident compensation insurance money, disciplinary measure against civil servants, suspension or revocation of business license, refusal to accept an application, etc. Decisions include decision of eminent domain by Central Land Tribunal, review decision by National Labor Relations Commission, decision of reparation by the Board of Audit and Inspection, etc.

Acting for affirmation of status as a civil servant and action regarding a contract in public law are examples of actions which concern legal relationships in public law. Moreover, action for affirmation of illegal nonfeasance is allowed if the administrative entity fails to respond to the application by the public.

A. Standing and Limitation Period

Only a person who holds a direct and concrete legal interest from revocation of a disposition in question may bring an action before the court. If interest to be restored is indirect or abstract, then action is not allowed.

In general, an action may be instituted without first resorting to a remedy arranged by an administrative entity. However, in regard to levy of taxes, suspension or revocation of driver’s license, etc., exhaustion of administrative remedy is a prerequisite to filing an action with the court.

Legal relationships in administrative law need to be stabilized promptly since there are far-reaching consequences of these influences. In this regard, actions challenging legality of a disposition must be filed within the period prescribed by Administrative Litigation Act or other applicable laws.

B. Hearing and Judgment

In principle, administrative proceedings and civil proceedings have similarities in the way they are held. However, as administrative proceedings are more deeply related to the public interest, there is a greater need for the court to intervene ex officio in administrative proceedings rather than in civil proceedings. In administrative proceedings, the court may examine evidence ex officio and consider the facts not averred by the parties though the parties also bear the responsibility to make allegations and to produce evidence.

When disposition is deemed gruoundless, or excessively harsh and severe with all circumstances taken into account, if it has any ground, the court is to revoke disposition in favor of the plaintiff. However, even where a demand of the plaintiff is deemed reasonable, if revocation of disposition is deemed remarkably inappropriate to the public welfare, the court may reject the demand of the plaintiff.

The losing party, like in other proceedings, may appeal against the judgment rendered by the trial court to the High Court and then likewise to the Supreme Court.

C. Suspension of Execution in the Administrative Disposition

As institution of an administrative action does not preclude the effect or execution of disposition, the judgment in favor of the plaintiff may turn out to be useless if it takes a long time to obtain such judgment.

In this regard, Administrative Litigation Act empowers the court to provisionally suspend, upon a request from the plaintiff or ex officio, the effect or execution of disposition under certain circumstances. However, suspension of execution is not permitted if it is feared to have a seriously negative effect on the public welfare.

5. Patent Court

In patent cases, the court decides on whether the decision of the Intellectual Property Tribunal(IPT) on the rights of patent, utility model, design, or trademark is illegal and should be revoked. The IPT makes decisions on legality of refusal to accept an application for patent registration, on invalidation of patent registration, and on affirmation of the scope of a patent right. The party who is dissatisfied with the decision of the IPT may file a suit seeking to revoke the decision with the Patent Court within 30 days from the date the decision is served. When decision on legality of refusal is challenged , the defendant of a suit shall be the opposite party in the decision process. On the principle of separation of powers, the Patent Court can only revoke the decision of the IPT and neither permit patent registration of any invention nor invalidate a patent right.

In Korea, the Patent Court exercises exclusive jurisdiction over patent issues. Under the three-tier system, the Patent Court is situated on the High Court level and has territorial jurisdiction over the entire nation. At the Patent Court, a panel of three judges hears cases. As in civil proceedings, the pleading process and hearings are held. As a patent case is a kind of administrative case, the court may examine evidence ex officio if it is deemed necessary.

In addition to lawyers, patent attorneys are also permitted to represent the parties in the proceedings at the Patent Court. When the case relates to patent rights or utility model rights, the court normally holds pre-trial hearings where the parties, or their attorneys, are granted the opportunity to fully state their positions and to produce evidence. The Patent Court has technical examiners to assist judges in highly technical matters. They have degrees in various fields such as chemistry, mechanics, metal engineering, life science, electrical engineering, electronics, etc. They may participate in pre-trial and trial proceedings with the presiding judge’s approval. To precisely understand the technical aspects of patent-or utility model-related disputes, the Patent Court may hold explanatory sessions where parties or relevant experts can make presentations using drawings, real objects, models, computer graphics, or video devices.

When the case relates to design rights or trademark rights, the court does not hold pre-trial hearings because the issues have become evident during IPT decision process.

A party who is dissatisfied with the judgment of the Patent Court may appeal to the Supreme Court.

6. Insolvency Case

In case a debtor is unable to pay matured debts due to financial distress, the creditors can file a bankruptcy petition with the District Court. Insolvency proceedings have taken a new shape after the enactment, on April 1 2006, of the Act on the Reorganization and Liquidation of a debtor.

A. Reorganization Proceedings for Business Entities

The purpose of reorganization proceedings is to seek maintenance and rehabilitation of business entities under the supervision of the court, by adjusting the claims and equities of the entities concerned, such as creditors and equity holders. The court, upon a request from a debtor, creditor, or equity holder, renders an order for relief, and appoints a trustee. In principle, the debtor is appointed as a trustee. Debtor-in-Possession System, in which the Court does not appoint any trustee but leave the right of administration and disposal of the estate to the debtor, is allowed under certain circumstances, such as when a debtor is an individual, a medium sized business entity, or a public company with sound corporate governance. The trustee is required to submit, within the period fixed by the court, a reorganization plan which contains a detailed program for administration and disposal of the estate as well as a plan for adjustment of debts. If the plan is accepted by creditors or equity holders, and confirmed by the court, the rights of the creditors or equity holders are altered according to the plan. In the event that a reorganization plan begins to be implemented by the debtor, the court shall close the case unless a debtor is likely to fail in carrying out the plan in the future.

B. Liquidation Proceedings

The liquidation proceedings are proceedings whereby the court-appointed trustee collects the property of the debtor, converts that property to cash, and distributes the cash to the creditors. The court, upon a request from the creditor or debtor, declares bankruptcy if the debtor is deemed unable to make payments. When the debtor has no or little property, the distribution proceedings may be omitted. Debtors, who are individuals, can be discharged from remaining debts. The granting of a discharge may not be given if it is deemed that bankruptcy, in whole or in part, was caused by extravagance or fraudulent practices. In practice, the court tends to be lenient in granting a discharge of debts.

C. Reorganization Proceedings for individuals

Individuals with debts below a statutory threshold and with likelihood of sufficiently stable and regular income in the future, are entitled to reorganization proceedings for individuals, by which debtors may adjust debts and make installment payments to creditors pursuant to a court-confirmed plan. Once the debtor repays a certain amount of debt within a planned period not exceeding 5 years, he/she may be discharged from the remainder of the debt. The debtor should submit a list of the creditors and file a plan for payment. A Court-appointed standing trustee will investigate on the estate and income of the debtor, and advise on the plan for payment. After the plan is confirmed by the Court, the debtor should repay the debt according to the plan. After full implementation of the plan, the debtor can be discharged from the remaining debt.

II. Alternative dispute resolution

As international trade and commerce increases among the nations of the world, it is an inevitable fact that disputes rise as well. As these transactions grow more complex, it becomes increasingly important to resolve disputes and conflicts as quickly, efficiently and formatively as possible. And in Korea, the Korean Commercial Arbitration Board(KCAB) is well established to assist those international parties who may find themselves in a conflict during the performance of their commercial business. Among the three resolution systems offered by KCAB, arbitration is the most commonly used. Although the history of arbitration in Korea dates bact to Joseon Dynasty(1392-1910), the practice of commercial arbitration as applies in contemporary international trade is a recent phenomenon. Arbitration first appeared in modern commercial treaties such as Treaty of Friendship, Commerce and Navigation between the Republic of Korea and the United States in 1957. Korea has also acceded to special international conventions on dispute settlement such as the United Nationa Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10,1958(the New York Convention) and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States(the Washington Convention) of August 27, 1965.

Overview of Korean Legal & Court System

Because Japan occupied Korea from 1910 to 1945, the Korean legal system resembles the Japanese system. After after the occupation however, there were attempts to adopt many aspects of the American legal system. It must be remembered that the first civilian government commenced only in 1993, and thereafter, increasingly more democratic reforms have taken place.

Constitution: Adopted on July 17, 1948 after emancipation from Japan. Korea has three (3) governmental branches: legislative, executive and judicial.

Legal system: Based on Civil (codified) Law, while court precedents are not granted official status as law. However, in practice the decisions of the Supreme Court of Korea have strong precedent value. International treaties in which Korea is a party have essentially the same impact as Korean domestic statutes. There are statutes or Acts, which are legislations enacted by the National Assembly. When a law is passed by the National Assembly and sent to the Executive Branch, the government promulgates it, upon approval of the President, by printing the text in the Official Gazette of the Government. A serial number is assigned to each Act in the order of printing it in the Gazette. For example, the Civil Code, Law No. 471 of May 22, 1958, as last amended by Law No. 4199 of Jan. 13, 1990. Below statutes, there are "Presidential Enforcement Decrees", which are subordinate legislations made by the Cabinet or the State Council composed of the ministers to implement an Act. Below those are "Regulations" or "Rules", which are regulations written by each Ministry to implement practical details, such as how to fill out certain forms, in accordance with a law and a presidential decree thereunder. For example, for "The Foreign Investment Promotion Act", there is "The Enforcement Decree of the Foreign Investment Promotion Act" and then "The Enforcement Regulation of the Foreign Investment Promotion Act".

Six Basic Codes and Other Laws

The Six basic codes in Korea are: the Constitution, the Civil Code, the Commercial Code, the Code of Civil Procedure, the Criminal Code and the Code of Criminal Procedure. Other forms of written law are: 1) the statutes passed by the National Assembly; 2) the Presidential (or Enforcement) Decrees; and 3) Ministerial Ordinances which supplement general statutes with details concerning implementation; 4) the directives, notices, and rules promulgated by the Government Ministries or Offices which are technically not law, but in fact regulate activities of the public servants to whom they are issued; 5) the rules made by the National Assembly and governing their respective operations, pursuant to Article 64(1) of the Constitution; 6) the rules made by the Supreme Court in its administration of the entire Korean court system pursuant to Article 108 of the Constitution; and 7) the treaties, under Article 6(1) of the Constititution.

1) Constitution

First promulgated on July 17, 1948 and frequently amended thereafter, indicating the past, turbulent political history of Korea.

2) The Civil Code

The Civil Code is divided into five books covering the following topics of law: the general part, real property rights, obligations, family law and succession.

3) The Commercial Code

Was promulgated to meet the needs of new, socio-economic constraints, particularly in the field of economic regulations. Contains laws regarding corporations and partnerships.

4) The Code of Civil Procedure

Divided into seven books

5) The Criminal Code

Enacted in 1953 and divided into two Books. Book One sets out rules of general nature, which apply to all crimes. Book Two deals with individual crimes.

6) The Code of Criminal Procedure

Promulgated on September 23, 1954 and is divided into five Books.

Court System

Court System: Supreme Court, high courts, district courts, family courts, patent courts and administrative courts.
Supreme Court: consists of a Chief Justice and 13 Associate Justices who are appointed by the President for 6-year terms. Only the Chief Justice cannot be re-appointed. Appeals from decision by second level of district courts or appeals from decision of High Courts are heard by the Supreme Court.
Appeals from decisions by single judge of district courts fall under jurisdiction of collegial department of district court paneled by three judges. Appeals from decisions by first level of collegial department of district courts are heard by three judges of the High Courts. High Courts function as court of first appellate court as well as those cases designated by law.
District courts hear both criminal and civil cases, and there is no right to jury in any Korean court. District courts are primarily courts of general original jurisdiction.

The highest court is the Supreme Court, and immediately under the Supreme Court are the High Courts, which act as intermediate appellate courts. Below the High Courts are the District Courts which are the courts of general original jurisdiction.

The Constitution of South Korea (Republic of Korea)

The Constitution of South Korea (Republic of Korea)

As you can see, the Constitution of South Korea is much longer than the U.S. Constitution, again reflecting the codified law tradition.

The translation could be better, but here it is. Note we at KoreaLaw.com did not translate this.

Oct. 29, 1987

PREAMBLE

We, the people of Korea, proud of a resplendent history and traditions dating from time immemorial, upholding the cause of the Provisional Government of the Republic of Korea born of the March First Independence Movement of 1919 and the democratic ideals of the April Nineteenth Uprising of 1960 against injustice, having assumed the mission of democratic reform and peaceful unification of our homeland and having determined to consolidate national unity with justice, humanitarianism and brotherly love, and

To destroy all social vices and injustice, and

To afford equal opportunities to every person and provide for the fullest development of individual capabilities in all fields, including political, economic, social and cultural life by further strengthening the free and democratic basic order conducive to private initiative and public harmony, and

To help each person discharge those duties and responsibilities concomitant to freedoms and rights, and

To elevate the quality of life for all citizens and contribute to lasting world peace and the common prosperity of mankind and thereby to ensure security, liberty and happiness for ourselves and our posterity forever, Do hereby amend, through national referendum following a resolution by the National Assembly, the Constitution, ordained and established on the Twelfth Day of July anno Domini Nineteen hundred and forty-eight, and amended eight times subsequently.

Oct. 29, 1987

CHAPTER I GENERAL PROVISIONS

Article 1

(1) The Republic of Korea shall be a democratic republic.

(2) The sovereignty of the Republic of Korea shall reside in the people, and all state authority shall emanate from the people.

Article 2

(1) Nationality in the Republic of Korea shall be prescribed by Act.

(2) The State shall protect its citizens abroad as provided by Act.

Article 3

The territory of the Republic of Korea shall consist of the Korean peninsula and its adjacent islands.

Article 4

The Republic of Korea shall seek national unification, and shall formulate and carry out peaceful unification policy based on the free and democratic basic order.

Article 5

(1) The Republic of Korea shall endeavor to maintain international peace and shall renounce any war of aggression.

(2) The national Armed Forces shall be charged with the sacred mission of national security and the defense of the land and their political neutrality shall be observed.

Article 6

(1) Treaties duly concluded and promulgated under the Constitution and generally recognized rules of international law shall have the same force and effect of law as domestic laws of the Republic of Korea.

(2) Status of aliens shall be guaranteed in accordance with international laws and treaties.

Article 7

(1) Public officials shall be servants of the people and shall be responsible to the people.

(2) Status and political neutrality of public officials shall be guaranteed as prescribed by Act.

Article 8

(1) Establishment of political parties shall be free and the plural party system shall be guaranteed.

(2) Political parties shall be democratic in their objectives, organization and activities, and shall have necessary organizational arrangements to participate in the formation of political will of the people.

(3) Political parties shall be protected by the State as provided by statute and may receive subsidy for operation from the State as prescribed by Act.

(4) If the purposes or activities of a political party are contrary to the democratic basic order, the Government may bring an action for its dissolution in the Constitutional Court, and the political party may be dissolved by decision of the Constitutional Court.

Article 9

The State shall strive to sustain and develop cultural heritages and to enhance national culture.

CHAPTER II RIGHTS AND DUTIES OF CITIZENS

Article 10

All citizens shall be assured of human dignity and worth and have the right to pursue happiness. It is the duty of the State to confirm and guarantee the fundamental and inviolable human rights of individuals.

Article 11

(1) All citizens shall be equal before the law, and there shall be no discrimination in political, economic, social or cultural life on account of sex, religion or social status.

(2) No privileged caste shall be recognized or ever established in any form.

(3) Awarding of decorations or distinctions of honor in any form shall be effective only for recipients, and no privileges shall ensue therefrom.

Article 12

(1) All citizens shall enjoy personal liberty. No person shall be arrested, detained, searched, seized or interrogated unless it is so authorized pursuant to statute. No person shall be punished, subject to preventive restrictions or to forced labor unless it is so authorized by an Act or without due process of law.

(2) No citizen shall be tortured or be compelled to testify against himself in criminal cases.

(3) For arrest, detention, seizure or search a warrant issued by a judge in due process of law upon request of a prosecutor shall be presented: Provided, That in a case where a criminal suspect is an apprehended flagrante delicto, or where there is danger that a person suspected of committing a crime punishable by imprisonment of three years or more may escape or destroy evidence, investigation authorities may request an ex post facto warrant.

(4) Any person who is arrested or detained shall have the right to prompt assistance of counsel. When a criminal defendant is unable to secure counsel by his own efforts, the State shall assign counsel for the defendant as prescribed by Act.

(5) No person shall be arrested or detained without being informed of the reason therefor and of his right to assistance of counsel. The family of a person arrested or detained and others as designated by statute shall be notified without delay of the reason for and the time and place of the arrest or detention.

(6) Any person who is arrested or detained shall have the right to request the court to review the legality of the arrest or detention.

(7) In a case where a confession is deemed to have been made against a defendant's will due to torture, violence, intimidation, unduly prolonged arrest, deceit, etc. or in a case where a confession is the only evidence against a defendant in a formal trial, such a confession shall not be admitted as evidence of guilt, nor shall a defendant be punished by reason of such a confession.

Article 13

(1) No citizen shall be prosecuted for an act which does not constitute a crime under the statute in force at the time when it was committed, nor shall he/she be punished over again for the criminal act for which he/she has been once punished.

(2) No citizen shall be restricted in his/her political rights, nor be deprived of property rights by means of retroactive legislation.

(3) No citizen shall suffer unfavorable treatment on account of an act not of his own doing but committed by a relative.

Article 14

All citizens shall enjoy freedom of residence and movement.

Article 15

All citizens shall enjoy freedom of occupation.

Article 16

All citizens shall be free from intrusion into their place of residence. For search or seizure in a residence shall be presented a warrant issued by a judge upon request of a prosecutor.

Article 17

All citizens shall enjoy inviolable right to privacy of life.

Article 18

All citizens shall enjoy inviolable privacy of correspondence.

Article 19

All citizens shall enjoy freedom of conscience.

Article 20

(1) All citizens shall enjoy freedom of religion.

(2) No state religion shall be recognized, and church and state shall be separated.

Article 21

(1) All citizens shall enjoy freedom of speech and the press and enjoy freedom of assembly and association.

(2) Licensing or censorship of speech and the press, and licensing of assembly and association shall not be recognized.

(3) Facility standards of news services and broadcasts, and matters necessary to ensure the functions of newspapers shall be determined by Act.

(4) Neither speech nor the press shall violate the honor or rights of other persons nor undermine public morals or social ethics. Should speech or the press violate the honor or rights of other persons, claims may be made for the damage resulting therefrom.

Article 22

(1) All citizens shall enjoy freedom of science and the arts.

(2) The rights of authors, inventors, scientists, engineers and artists shall be protected by Act.

Article 23

(1) Right of property shall be guaranteed for any citizen. Contents and limitations thereof shall be determined by Act.

(2) Exercise of property rights shall conform to the public welfare.

(3) Expropriation, use or restriction of private property for public necessity and compensation therefor shall be governed by statute: Provided, That in such a case, just compensation shall be paid.

Article 24

All citizens shall have the right to vote under the conditions as prescribed by Act.

Article 25

All citizens shall have the right to hold public office under the conditions as prescribed by Act.

Article 26

(1) All citizens shall have the right to petition in writing to any governmental agency under the conditions as prescribed by Act.

(2) The State shall have the obligation to examine such petitions.

Article 27

(1) All citizens shall have the right to trial according to law by judges qualified and appointed under the Constitution and Act.

(2) Citizens who are not on active military service or employees of the military forces shall not be tried by a court martial within the territory of the Republic of Korea, except in case of crimes as prescribed by Act involving important classified military information, sentinels, sentry posts, the supply of harmful food and beverages, prisoners of war and military articles and facilities and in the case of the proclamation of extraordinary martial law.

(3) All citizens shall have the right to a speedy trial. The accused shall have the right to a public trial without delay in the absence of justifiable reasons to the contrary.

(4) The accused shall be presumed innocent until a judgment of guilt has been pronounced.

(5) A victim of a crime shall be entitled to make a statement during the proceedings of the trial of the case involved as under the conditions prescribed by Act.

Article 28

In a case where a criminal suspect or an accused person who has been placed under detention is not indicted as provided by Act or is acquitted by a court, he/she shall be entitled to claim just compensation from the State under the conditions as prescribed by Act.

Article 29

(1) If any citizen is injured by unlawful act committed by a public official in the excercise of public office, he/she may claim just reparation against the State or public organization under the conditions as prescribed by Act. In this case, the public official concerned shall not be immune from liabilities.

(2) If any person on active military service or an employee of the military forces, a police official or others as prescribed by Act is injured in conjunction with performing official duties such as combat action, drill and so forth, he/she shall not be entitled to a claim against the State or public organization on the grounds of unlawful acts committed by public officials during those official duties, but shall be entitled only to compensations as prescribed by Act.

Article 30

Any citizen who has suffered physical injury or death due to criminal acts of others may receive aid from the State under the conditions as prescribed by Act.

Article 31

(1) All citizens shall have an equal right to receive education corresponding to their abilities.

(2) All citizens who have children to support shall be responsible at least for their elementary education and other education as provided by Act.

(3) Compulsory education shall be free of charge.

(4) Independence, professionalism and political impartiality of education and the autonomy of university shall be guaranteed under the conditions as prescribed by Act.

(5) The State shall promote lifelong education.

(6) Fundamental matters pertaining to the educational system, including in-school and lifelong education, administration, finance, and status of teachers shall be determined by Act.

Article 32

(1) All citizens shall have the right to work. The State shall endeavor to promote employment of workers and to guarantee optimum wages through social and economic means and shall enforce a minimum wage system under the conditions as prescribed by Act.

(2) All citizens shall have the duty to work. The State shall prescribe by Act the extent and conditions of the duty to work in conformity with democratic principles.

(3) Standards of working conditions shall be determined by Act in such a way as to guarantee human dignity.

(4) Special protection shall be accorded to working women, and they shall not be subjected to unjust discrimination in terms of employment, wages and working conditions.

(5) Special protection shall be accorded to working children.

(6) The opportunity to work shall be accorded preferentially, under the conditions as prescribed by Act, to those who have given distinguished service to the State, wounded veterans and policemen, and members of the bereaved families of military servicemen and policemen killed in action.

Article 33

(1) To enhance working conditions, workers shall have the right to independent association, collective bargaining and collective action.

(2) Only those public officials who are designated by Act shall have the right to association, collective bargaining and collective action.

(3) The right to collective action of workers employed by major important defense industries may be either restricted or denied under the conditions as prescribed by Act.

Article 34

(1) All citizens shall be entitled to a life worthy of human being.

(2) The State shall have the duty to endeavor to promote social security and welfare.

(3) The State shall endeavor to promote welfare and rights of women.

(4) The State shall have the duty to implement policies for enhancing welfare of senior citizens and the young.

(5) Citizens who are incapable of earning a livelihood due to a physical disability, disease, old age or other reasons shall be protected by the State under the conditions as prescribed by Act.

(6) The State shall endeavor to prevent disasters and to protect citizens from harm therefrom.

Article 35

(1) All citizens shall have the right to a healthy and agreeable environment. The State and all citizens shall endeavor to protect the environment.

(2) Substance of the right to environment shall be determined by Act.

(3) The State shall endeavor to ensure comfortable housing for all citizens through housing development policies and the like.

Article 36

(1) Marriage and family life shall be entered into and sustained on the basis of individual dignity and equality of the sexes, and the State shall do everything in its power to achieve that goal.

(2) The State shall endeavor to protect mothers.

(3) The health of all citizens shall be protected by the State.

Article 37

(1) Freedoms and rights of citizens shall not be neglected on the grounds that they are not enumerated in the Constitution.

(2) Freedoms and rights of citizens may be restricted by Act only when necessary for national security, maintenance of law and order or for public welfare. Even when such restriction is imposed, essential aspects of the freedom or right shall not be violated.

Article 38

All citizens shall have the duty to pay taxes under the conditions as prescribed by Act.

Article 39

(1) All citizens shall have the duty of national defense under the conditions as prescribed by Act.

(2) No citizen shall be treated unfavorably on account of the fulfillment of his obligation of military service.

CHAPTER III THE NATIONAL ASSEMBLY

Article 40

The legislative power shall be vested in the National Assembly.

Article 41

(1) The National Assembly shall be composed of members elected by universal, equal, direct and secret ballot by the citizens.

(2) Number of members of the National Assembly shall be determined by Act, but the number shall not be less than 200.

(3) Constituencies of members of the National Assembly, proportional representation and other matters pertaining to National Assembly elections shall be determined by Act.

Article 42

The term of office of members of the National Assembly shall be four years.

Article 43

Members of the National Assembly shall not concurrently hold any other office prescribed by Act.

Article 44

(1) During the session of the National Assembly, no member of the National Assembly shall be arrested or detained without consent of the National Assembly except in case of flagrante delicto.

(2) If any member of the National Assembly is apprehended or detained prior to the opening of a session, such member shall be released during the session upon request of the National Assembly, except in case of flagrante delicto.

Article 45

No member of the National Assembly shall be held responsible outside the National Assembly for opinions officially expressed or for votes cast in the National Assembly.

Article 46

(1) Members of the National Assembly shall have the duty to maintain high standards of integrity.

(2) Members of the National Assembly shall give preference to national interests and shall perform their duties according to the dictates of their conscience.

(3) Any member of the National Assembly shall neither acquire rights and benefits in property or other positions, nor assist other persons to acquire the same things, by means of contracts with or dispositions by the State, public organizations or industries in abusive exercise of his/her status as a member of the National Assembly.

Article 47

(1) A regular session of the National Assembly shall be convened once every year under the conditions as prescribed by Act, and extraordinary sessions of the National Assembly shall be convened upon request of the President or one fourth or more of its total members.

(2) The period of regular session shall not exceed a hundred days, and that of extraordinary session, thirty days.

(3) If the President requests convening of an extraordinary session, period of the session and reasons for the request shall be clearly specified.

Article 48

The National Assembly shall elect one Speaker and two Vice-Speakers.

Article 49

Except as otherwise provided in the Constitution or Act, the attendance of a majority of the total members, and the concurrence of a majority of the members present shall be necessary for decisions of the National Assembly. In case of a tie vote, the matter shall be regarded as rejected.

Article 50

(1) The sessions of the National Assembly shall be open to the public: Provided, That when it is decided so by a majority of the members present, or when the Speaker deems it necessary to do so for the sake of national security, they may be closed to the public.

(2) Public disclosure of the proceedings of sessions which were not open to the public shall be determined by Act.

Article 51

Bills and other matters submitted to the National Assembly for deliberation shall not be abrogated on the ground that they were not acted upon during the session in which they were introduced, except in a case where the term of the members of the National Assembly has expired.

Article 52

Bills may be introduced by members of the National Assembly or by the Executive.

Article 53

(1) Each bill passed by the National Assembly shall be sent to the Executive, and the President shall promulgate it within fifteen days.

(2) In case of objection to the bill, the President may, within the period referred to in paragraph (1), return it to the National Assembly with written explanation of his objection, and request it be reconsidered. The President may do the same during adjournment of the National Assembly.

(3) The President shall not request the National Assembly to reconsider the bill in part, or with proposed amendments.

(4) If the President returns a bill together with a request for reconsideration to the National Assembly, this shall reconsider it. If the National Assembly repasses the bill in the original form with the attendance of more than one half of the total members, and with the concurrence of two-thirds or more of the members present, it shall become Act.

(5) If the President neither promulgates the bill, nor request the National Assembly to reconsider it within the period referred to in paragraph (1), it shall become Act.

(6) The President shall promulgate without delay the Act as finalized under paragraphs (4) and (5). If the President does not promulgate an Act within five days after it has become Act under paragraph (5), or after it has been returned to the Executive under paragraph (4), the Speaker shall promulgate it.

(7) Except as provided otherwise, an Act shall take effect twenty days after the date of promulgation.

Article 54

(1) The National Assembly shall deliberate and decide upon the national budget bill.

(2) The Executive shall formulate the budget bill for each fiscal year and submit it to the National Assembly within ninety days before the beginning of a fiscal year. The National Assembly shall decide upon it within thirty days before the beginning of the fiscal year.

(3) If the budget bill is not passed by the beginning of the fiscal year, the Executive may, in conformity with the budget of the previous fiscal year, disburse funds for the following purposes until the budget bill is passed by the National Assembly:

1. The maintenance and operation of agencies and facilities established by the Constitution or Act;

2. Execution of the obligatory expenditures as prescribed by Act; and

3. Continuation of projects previously approved in the budget.

Article 55

(1) In a case where it is necessary to make continuing disbursements for a period longer than one fiscal year, the Executive shall obtain the approval of the National Assembly for a specified period of time.

(2) A reserve fund shall be approved by the National Assembly in total. The disbursement of the reserve fund shall be approved during the next session of the National Assembly.

Article 56

When it is necessary to amend the budget, the Executive may formulate a supplementary revised budget bill and submit it to the National Assembly.

Article 57

The National Assembly shall, without the consent of the Executive, neither increase the sum of any item of expenditure nor create any new items of expenditure in the budget submitted by the Executive.

Article 58

When the Executive plans to issue national bonds or to conclude contracts which may incur financial burden on the State outside the budget, it shall have the prior concurrence of the National Assembly.

Article 59

Types and rates of taxes shall be determined by Act.

Article 60

(1) The National Assembly shall have the right to consent to conclusion and ratification of treaties pertaining to mutual assistance or mutual security; treaties concerning important international organizations; treaties of friendship, trade and navigation; treaties pertaining to any restriction in sovereignty; peace treaties; treaties which will incur grave financial burden on the State or people; or treaties related to legislative matters.

(2) The National Assembly shall also have the right to consent to declaration of war, dispatch of armed forces to foreign states, or stationing of alien forces in the territory of the Republic of Korea.

Article 61

(1) The National Assembly may inspect affairs of state or investigate specific matters of state affairs, and may demand production of documents directly related thereto, appearance of a witness in person and furnishing of testimony or statements of opinion.

(2) Procedures and other necessary matters concerning inspection and investigation of state administration shall be determined by Act.

Article 62

(1) The Prime Minister, members of the State Council or Government Delegates may attend meetings of the National Assembly or its committees and report on state administration or deliver opinions and answer questions.

(2) When requested by the National Assembly or its committees, the Prime Minister, members of the State Council or Government Delegates shall attend any meeting of the National Assembly and answer questions. If the Prime Minister or State Council members are requested to attend, the Prime Minister or State Council members may have State Council members or Government Delegates attend any meeting of the National Assembly and answer questions.

Article 63

(1) The National Assembly may pass a recommendation for removal of the Prime Minister or a State Council member from office.

(2) A recommendation for removal as referred to in paragraph (1) may be introduced by one third or more of the total members of the National Assembly and shall be passed with the concurrence of a majority of the total members of the National Assembly.

Article 64

(1) The National Assembly may establish rules of its proceedings and internal regulations: Provided, That they are not in conflict with Act.

(2) The National Assembly may review qualifications of its members and may take disciplinary actions against them.

(3) The concurrent vote of two thirds or more of the total members of the National Assembly shall be required for expulsion of any member.

(4) No action shall be brought to court with regard to decisions taken under paragraphs (2) and (3).

Article 65

(1) In case the President, the Prime Minister, members of the State Council, heads of Executive Ministries, Justices of the Constitutional Court, judges, members of the National Election Commission, the Chairman and members of the Board of Audit and Inspection, and other public officials designated by Act have violated the Constitution or other Acts in the performance of the official duties, the National Assembly may pass motions for their impeachment.

(2) A motion for impeachment prescribed in paragraph (1) may be proposed by one third or more of the total members of the National Assembly, and shall require a concurrence of a majority of the total members of the National Assembly for passage: Provided, That a motion for the impeachment of the President shall be proposed by a majority of the total members of the National Assembly and approved by two thirds or more of the total members of the National Assembly.

(3) Any person against whom a motion for impeachment has been passed shall be suspended from exercising his power until the impeachment has been adjudicated.

(4) A decision on impeachment shall not extend further than removal from public office: Provided, That it shall not exempt the person impeached from civil or criminal liability.

CHAPTER IV THE EXECUTIVE

SECTION 1 The President

Article 66

(1) The President shall be the Head of State and represent the State vis-a-vis foreign states.

(2) The President shall have the responsibility and duty to safeguard the independence, territorial integrity and continuity of the State and the Constitution.

(3) The President shall have the duty to pursue sincerely the peaceful unification of the homeland.

(4) Executive power shall be vested in the Executive Branch headed by the President.

Article 67

(1) The President shall be elected by universal, equal, direct and secret ballot by the people.

(2) In case two or more persons receive the same greatest number of votes in the election as referred to in paragraph (1), the person who receives the greatest number of votes in an open session of the National Assembly attended by a majority of the total members of the National Assembly shall be elected.

(3) If and when there is only one presidential candidate, he/she shall not be elected President unless he/she receives at least one third votes of the total number of the electorate.

(4) Citizens who are eligible for election to the National Assembly, and who have attained to the age of forty years or more on the date of the presidential election, shall be eligible to be elected to the presidency.

(5) Matters pertaining to presidential elections shall be determined by Act.

Article 68

(1) The successor to the incumbent President shall be elected seventy to forty days before his/her term expires.

(2) In case a vacancy occurs in the office of the President or the President-elect dies, or is disqualified by a court ruling or for any other reason, a successor shall be elected within sixty days.

Article 69

The President, at the time of his inauguration, shall take the following oath: "I do solemnly swear before the people that I will faithfully execute the Office of President by observing the Constitution, defending the State, pursuing the peaceful unification of the homeland, promoting the freedom and welfare of the people and endeavoring to develop national culture."

Article 70

The term of Office of President shall be five years, and the President shall not be reelected.

Article 71

If the Office of President is vacant or the President is unable to discharge the powers and duties for any reason, the Prime Minister or the members of the State Council in the order of priority as determined by Act shall act for him/her.

Article 72

The President may submit important policies relating to diplomacy, national defense, unification and other matters relating to the national destiny to a national referendum if he/she deems it necessary.

Article 73

The President shall conclude and ratify treaties; accredit, receive or dispatch diplomatic envoys; and declare war and conclude peace.

Article 74

(1) The President shall be Commander-in-Chief of the Armed Forces under the conditions as prescribed by the Constitution and Act.

(2) The organization and formation of the Armed Forces shall be determined by Act.

Article 75

The President may issue presidential decrees concerning matters delegated to him/her by Act with the scope specifically defined and also matters necessary to enforce Acts.

Article 76

(1) In case of internal turmoil, external menace, natural calamity or a grave financial or economic crisis, the President may take minimum necessary financial and economic actions or issue, in this regard, orders having the effect of Act, only when it is required to take urgent measures for maintenance of national security or public peace and order, and there is no time to await convening of the National Assembly.

(2) In case of grave state of hostilities affecting national security, the President may issue orders having the effect of Act, only when it is required to preserve the integrity of the nation, and it is impossible to convene the National Assembly.

(3) If the President has taken any action or issues any order pursuant to paragraphs (1) and (2), he/she shall promptly notify it to the National Assembly and obtain its approval.

(4) If the President failed to obtain the approval as referred to in paragraph (3), the action or the order shall lose effect forthwith. In such case, the Acts which were amended or abolished by the order in question shall automatically regain their original effect at the moment the order failed to obtain approval.

(5) The President shall, without delay, put the developments under paragraphs (3) and (4) on public notice.

Article 77

(1) When it is required to cope with a military necessity or to maintain the public safety and order by mobilizing the armed forces in time of war, armed conflict or similar national emergency, the President may proclaim martial law under the conditions as prescribed by Act.

(2) Martial law shall be of two types: extraordinary martial law and precautionary martial law.

(3) Under extraordinary martial law, special measures may be taken with respect to the necessity for warrants, freedom of speech, the press, assembly and association, or the powers of the Executive and the Judiciary under the conditions as prescribed by Act.

(4) When the President has proclaimed martial law, he/she shall notify it to the National Assembly without delay.

(5) When the National Assembly requests the lifting of martial law with the concurrence of a majority of the total members of the National Assembly, the President shall comply.

Article 78

The President shall appoint and dismiss public officials under the conditions as prescribed by the Constitution and Act.

Article 79

(1) The President may grant amnesty, commutation and restoration of rights under the conditions as prescribed by Act.

(2) No general amnesty shall be granted without the consent of the National Assembly.

(3) Matters pertaining to amnesty, commutation and restoration of rights shall be determined by Act.

Article 80

The President shall award decorations and other honors under the conditions as prescribed by Act.

Article 81

The President may attend and address the National Assembly or express his views by written message.

Article 82

The acts of the President under state law shall be executed in writing, and such documents shall be countersigned by the Prime Minister and the members of the State Council concerned. The same shall apply to military affairs.

Article 83

The President shall not concurrently hold the office of Prime Minister, a member of the State Council, the head of any Executive Ministry, nor other public or private posts as prescribed by Act.

Article 84

The President shall not be charged with a criminal offense during his tenure of office except for insurrection or treason.

Article 85

Matters pertaining to the status and courteous treatment of former Presidents shall be determined by Act.

SECTION 2 The Executive Branch

Sub-Section 1 The Prime Minister and Members of the State Council

Article 86

(1) The Prime Minister shall be appointed by the President with the consent of the National Assembly.

(2) The Prime Minister shall assist the President and shall direct the Ministries of the Executive Branch under order of the President.

(3) No member of the military shall be appointed Prime Minister unless he/she is discharged from active duty.

Article 87

(1) The members of the State Council shall be appointed by the President on the recommendation of the Prime Minister.

(2) The members of the State Council shall assist the President in the conduct of state affairs and, as constituents of the State Council, shall deliberate on state affairs.

(3) The Prime Minister may recommend to the President the removal of a member of the State Council from office.

(4) No member of the military shall be appointed a member of the State Council unless he/she is discharged from active duty.

Sub-Section 2 The State Council

Article 88

(1) The State Council shall deliberate on important policies that fall within the power of the Executive.

(2) The State Council shall be composed of the President, the Prime Minister, and other members whose number shall be no more than thirty and no less than fifteen.

(3) The President shall be the Chairman of the State Council, and the Prime Minister shall be the Vice-Chairman.

Article 89

The following matters shall be referred to the State Council for deliberation:

1. Basic plans for state affairs, and general policies of the Executive;

2. Declaration of war, conclusion of peace and other important matters pertaining to foreign policy;

3. Draft amendments to the Constitution, proposals for national referenda, proposed treaties, legislative bills, and proposed presidential decrees;

4. Budgets, settlement of accounts, basic plans for disposal of state properties, contracts incurring financial burden on the State, and other important financial matters;

5. Emergency orders and emergency financial and economic actions or orders by the President, and declaration and termination of martial law;

6. Important military affairs;

7. Requests for convening an extraordinary session of the National Assembly;

8. Awarding of honors;

9. Granting of amnesty, commutation and restoration of rights;

10. Demarcation of jurisdiction among the Ministries of the Executive;

11. Basic plans concerning delegation or allocation of powers within the Executive;

12. Evaluation and analysis of the administration of state affairs;

13. Formulation and coordination of important policies of each Executive Ministry;

14. Action for the dissolution of a political party;

15. Examination of petitions pertaining to executive policies submitted or referred to the Executive;

16. Appointment of the Prosecutor General, the Chairman of the Joint Chiefs of Staff, the Chief of Staff of each armed service, the presidents of national universities, ambassadors, and such other public officials and managers of important state-run enterprises as designated by Act; and

17. Other matters presented by the President, the Prime Minister or a member of the State Council.

Article 90

(1) An Advisory Council of Elder Statesmen, composed of elder statesmen, may be established to advise the President on important affairs of state.

(2) The immediate former President shall become the Chairman of the Advisory Council of Elder Statesmen: Provided, That if there is no immediate former President, the President shall appoint the Chairman.

(3) The organization, function and other necessary matters pertaining to the Advisory Council of Elder Statesmen shall be determined by Act.

Article 91

(1) A National Security Council shall be established to advise the President on formulation of foreign, military and domestic policies related to national security prior to their deliberation by the State Council.

(2) The meetings of the National Security Council shall be presided over by the President.

(3) The organization, function and other necessary matters pertaining to the National Security Council shall be determined by Act.

Article 92

(1) An Advisory Council on Democratic and Peaceful Unification may be established to advise the President on formulation of peaceful unification policy.

(2) The organization, function and other necessary matters pertaining to the Advisory Council on Democratic and Peaceful Unification shall be determined by Act.

Article 93

(1) A National Economic Advisory Council may be established to advise the President on formulation of important policies for developing the national economy.

(2) The organization, function and other necessary matters pertaining to the National Economic Advisory Council shall be determined by Act.

Sub-Section 3 The Ministries of the Executive

Article 94

Heads of the Ministries of the Executive shall be appointed by the President from among members of the State Council on the recommendation of the Prime Minister.

Article 95

The Prime Minister or the head of each Ministry of the Executive may, under the powers delegated by Act or Presidential Decree, or ex officio, issue ordinances of the Prime Minister or the Ministry of the Executive concerning matters that are within their jurisdiction.

Article 96

The establishment, organization and competence of each Ministry of the Executive shall be determined by Act.

Sub-Section 4 The Board of Audit and Inspection

Article 97

The Board of Audit and Inspection shall be established under the direct jurisdiction of the President to inspect and examine settlement of the revenues and expenditures of the state, the accounts of the state and other organizations specified by Act and the job performances of the executive agencies and public officials.

Article 98

(1) The Board of Audit and Inspection shall be composed of no less than five and no more than eleven members, including the Chairman.

(2) The Chairman of the Board shall be appointed by the President with the consent of the National Assembly. The term of office of the Chairman shall be four years, and he/she may be reappointed only once.

(3) The members of the Board shall be appointed by the President on the recommendation of the Chairman. The term of office of the members shall be four years, and they may be reappointed only once.

Article 99

The Board of Audit and Inspection shall inspect the closing of accounts of revenues and expenditures each year, and report the results to the President and the National Assembly in the following year.

Article 100

The organization and competence of the Board of Audit and Inspection, the qualifications of its members, the range of the public officials subject to inspection and other necessary matters shall be determined by Act.

CHAPTER V THE COURTS

Article 101

(1) Judicial power shall be vested in courts composed of judges.

(2) The courts shall be composed of the Supreme Court, which is the highest court of the state, and other courts at specified levels.

(3) Qualifications for judges shall be determined by Act.

Article 102

(1) Departments may be established in the Supreme Court.

(2) There shall be Supreme Court Justices at the Supreme Court: Provided, That judges other than Supreme Court Justices may be assigned to the Supreme Court under the conditions as prescribed by Act.

(3) The organization of the Supreme Court and lower courts shall be determined by Act.

Article 103

Judges shall rule independently according to their conscience and in conformity with the Constitution and laws.

Article 104

(1) The Chief Justice of the Supreme Court shall be appointed by the President with the consent of the National Assembly.

(2) The Supreme Court Justices shall be appointed by the President on the recommendation of the Chief Justice and with the consent of the National Assembly.

(3) Judges other than the Chief Justice and the Supreme Court Justices shall be appointed by the Chief Justice with the consent of the Conference of Supreme Court Justices.

Article 105

(1) The term of office of the Chief Justice shall be six years and he/she shall not be reappointed.

(2) The term of office of the Justices of the Supreme Court shall be six years and they may be reappointed as prescribed by Act.

(3) The term of office of judges other than the Chief Justice and Justices of the Supreme Court shall be ten years, and they may be reappointed under the conditions as prescribed by Act.

(4) The retirement age of judges shall be determined by Act.

Article 106

(1) No judge shall be removed from office except by impeachment or a sentence of imprisonment without prison labor or heavier punishment, nor shall he/she be suspended from office, have his/her salary reduced or suffer any other unfavorable treatment except by disciplinary action.

(2) In the event a judge is unable to discharge his/her official duties because of serious mental or physical impairment, he/she may be retired from office under the conditions as prescribed by Act.

Article 107

(1) When the constitutionality of a law is at issue in a trial, the court shall request a decision of the Constitutional Court, and shall judge according to the decision thereof.

(2) The Supreme Court shall have the power to make a final review of the constitutionality or legality of administrative decrees, regulations or actions, when their constitutionality or legality is at issue in a trial.

(3) Administrative appeals may be conducted as a procedure prior to a judicial trial. The procedure of administrative appeals shall be determined by Act and shall be in conformity with the principles of judicial procedures.

Article 108

The Supreme Court may establish, within the scope of Act, regulations pertaining to judicial proceedings and internal discipline and regulations on administrative matters of the court.

Article 109

Trials and decisions of the courts shall be open to the public: Provided, That when there is a danger that such trials may undermine the national security or disturb public safety and order, or be harmful to public morals, trials may be closed to the public by court decision.

Article 110

(1) Courts-martial may be established as special courts to exercise jurisdiction over military trials.

(2) The Supreme Court shall have the final appellate jurisdiction over courts-martial.

(3) The organization and authority of courts-martial, and the qualifications of their judges shall be determined by Act.

(4) Military trials under an extraordinary martial law may not be appealed in case of crimes of soldiers and employees of the military; military espionage; and crimes as defined by Act in regard to sentinels, sentry posts, supply of harmful foods and beverages, and prisoners of war, except in the case of a death sentence.

CHAPTER VI THE CONSTITUTIONAL COURT

Article 111

(1) The Constitutional Court shall have jurisdiction over the following matters:

1. The constitutionality of Acts upon the request of the courts;

2. Impeachment;

3. Dissolution of a political party;

4. Competence disputes between state agencies, between state agencies and local governments, and between local governments; and

5. Constitutional petition as prescribed by Act.

(2) The Constitutional Court shall be composed of nine Justices having qualification for court judges, and they shall be appointed by the President.

(3) Among the Justices referred to in paragraph (2), three shall be appointed from candidates selected by the National Assembly, and three appointed from candidates nominated by the Chief Justice of the Supreme Court.

(4) The president of the Constitutional Court shall be appointed by the President among the Justices with the consent of the National Assembly.

Article 112

(1) The term of office of the Justices of the Constitutional Court shall be six years and they may be reappointed under the conditions as prescribed by Act.

(2) The Justices of the Constitutional Court shall not join any political party, nor shall they participate in political activities.

(3) No Justice of the Constitutional Court shall be expelled from office except by impeachment or a sentence of imprisonment without prison labor or heavier punishment.

Article 113

(1) When the Constitutional Court makes a decision of unconstitutionality of an Act, a decision of impeachment, a decision of dissolution of a political party or a decision accepting constitutional petition, the concurrence of six Justices or more shall be required.

(2) The Constitutional Court may issue rules and regulations relating to its proceedings and internal discipline and regulations on administrative matters within the limits of Act.

(3) The organization, administration and other necessary matters of the Constitutional Court shall be determined by Act.

CHAPTER VII ELECTION MANAGEMENT

Article 114

(1) The Election Commissions shall be established for the purpose of fair management of elections and national referenda, and dealing with administrative affairs concerning political parties.

(2) The National Election Commission shall be composed of three members appointed by the President, three members selected by the National Assembly, and three members designated by the Chief Justice of the Supreme Court. The Chairman of the Commission shall be elected from among the members.

(3) The term of office of the members of the Commission shall be six years.

(4) The members of the Commission shall not join political parties, nor shall they participate in political activities.

(5) No member of the Commission shall be expelled from office except by impeachment or a sentence of imprisonment without prison labor or heavier punishment.

(6) The National Election Commission may issue, within the limit of Acts and decrees, regulations relating to the management of elections, national referenda, and administrative affairs concerning political parties and may also establish regulations relating to internal discipline that are compatible with Act.

(7) The organization, function and other necessary matters of the Election Commissions at each level shall be determined by Act.

Article 115

(1) Election Commissions at each level may issue necessary instructions to administrative agencies concerned with respect to administrative affairs pertaining to elections and national referenda such as the preparation of the pollbooks.

(2) Administrative agencies concerned, upon receipt of such instructions, shall comply.

Article 116

(1) Election campaigns shall be conducted under the management of the Election Commissions at each level within the limit set by Act. Equal opportunity shall be guaranteed.

(2) Except as otherwise prescribed by Act, expenditures for elections shall not be imposed on political parties or candidates.

CHAPTER VIII LOCAL AUTONOMY

Article 117

(1) Local governments shall deal with administrative matters pertaining to the welfare of local residents, manage properties, and may enact provisions relating to local autonomy, within the limit of laws and regulations.

(2) The types of local governments shall be determined by Act.

Article 118

(1) The local government shall have a council.

(2) The organization and powers of local councils, and the election of their members; election procedures for heads of local governments; and other matters pertaining to the organization and operation of local governments shall be determined by Act.

CHAPTER IX THE ECONOMY

Article 119

(1) The economic order of the Republic of Korea shall be based on respect for the freedom and creative initiative of enterprises and individuals in economic affairs.

(2) The state may regulate and coordinate economic affairs in order to maintain a balanced growth and stability of the national economy, to ensure proper distribution of income, to prevent domination of the market and abuse of economic power and to democratize the national economy through harmony among the economic agents.

Article 120

(1) Licenses to exploit, develop or utilize minerals and all other important underground resources, marine resources, water power, and natural powers available for economic use may be granted for a period of time under the conditions as prescribed by Act.

(2) The land and natural resources shall be protected by the state, and the state shall establish a plan necessary for their balanced development and utilization.

Article 121

(1) The state shall endeavor to realize the land-to-the-tillers principle with respect to agricultural land. Tenant farming shall be prohibited.

(2) Leasing of agricultural land and consignment management of agricultural land to increase agricultural productivity and to ensure rational utilization of agricultural land or due to unavoidable circumstances, shall be recognized under the conditions as prescribed by Act.

Article 122

The state may impose, under the conditions as prescribed by Act, restrictions or obligations necessary for efficient and balanced utilization, development and preservation of the land of the nation that is the basis for the productive activities and daily lives of all citizens.

Article 123

(1) The state shall establish and implement a plan to comprehensively develop and support the farm and fishing communities in order to protect and foster agriculture and fisheries.

(2) The state shall have the duty to foster regional economies to ensure the balanced development of all regions.

(3) The state shall protect and foster small and medium enterprises.

(4) In order to protect the interests of farmers and fishermen, the state shall endeavor to stabilize the price of agricultural and fishery products by maintaining an equilibrium between demand and supply of such products and improving their marketing and distribution systems.

(5) The state shall foster organizations founded on the spirit of self-help among farmers, fishermen and businessmen engaged in small and medium industry and shall guarantee their independent activities and development.

Article 124

The state shall guarantee consumer protection movements intended to encourage sound consumption activities and improvement in the quality of products under the conditions as prescribed by Act.

Article 125

The state shall foster foreign trade, and may regulate and coordinate it.

Article 126

Private enterprises shall not be nationalized nor transferred to ownership by a local government, nor shall their management be controlled or administered by the state, except in cases as prescribed by Act to meet urgent necessities of national defense or the national economy.

Article 127

(1) The state shall strive to develop the national economy by developing science and technology, information and human resources and encouraging innovation.

(2) The state shall establish a system of national standards.

(3) The President may establish advisory organizations necessary to achieve the purpose referred to in paragraph (1).

CHAPTER X AMENDMENTS TO THE CONSTITUTION

Article 128

(1) A proposal to amend the Constitution shall be introduced either by a majority of the total members of the National Assembly or by the President.

(2) Amendments to the Constitution for the extension of the term of office of the President or for a change allowing for the reelection of the President shall not be effective for the President in office at the time of the proposal for such amendments to the Constitution.

Article 129

Proposed amendments to the Constitution shall be put before the public by the President for twenty days or more.

Article 130

(1) The National Assembly shall decide upon the proposed amendments within sixty days of the public announcement, and passage by the National Assembly shall require the concurrence of two thirds or more of the total members of the National Assembly.

(2) The proposed amendments to the Constitution shall be submitted to a national referendum not later than thirty days after passage by the National Assembly, and shall be determined by more than one half of all votes cast by more than one half of voters eligible to vote in elections for members of the National Assembly.

(3) When the proposed amendments to the Constitution receive the concurrence referred to in paragraph (2), the amendments to the Constitution shall be finalized, and the President shall promulgate it without delay.

ADDENDA

Article 1

This Constitution shall enter into force on the twenty-fifth day of February, anno Domini Nineteen hundred and eighty-eight: Provided, That the enactment or amendment of Acts necessary to implement this Constitution, the elections of the President and the National Assembly under this Constitution and other preparations to implement this Constitution may be carried out prior to the entry into force of this Constitution.

Article 2

(1) The first presidential election under this Constitution shall be held not later than forty days before this Constitution enters into force.

(2) The term of office of the first President under this Constitution shall commence on the date of its enforcement.

Article 3

(1) The first elections of the National Assembly under this Constitution shall be held within six months from the promulgation of this Constitution. The term of office of the members of the first National Assembly elected under this Constitution shall commence on the date of the first convening of the National Assembly under this Constitution.

(2) The term of office of the members of the National Assembly incumbent at the time this Constitution is promulgated shall terminate the day prior to the first convening of the National Assembly under paragraph (1).

Article 4

(1) Public officials and officers of enterprises appointed by the Government, who are in office at the time of the enforcement of this Constitution, shall be considered as having been appointed under this Constitution: Provided, That public officials whose election procedures or appointing authorities are changed under this Constitution, the Chief Justice of the Supreme Court and the Chairman of the Board of Audit and Inspection shall remain in office until such time as their successors are chosen under this Constitution, and their terms of office shall terminate the day before the installation of their successors.

(2) Judges attached to the Supreme Court who are not the Chief Justice or Justices of the Supreme Court and who are in office at the time of the enforcement of this Constitution shall be considered as having been appointed under this Constitution notwithstanding the proviso of paragraph (1).

(3) Those provisions of this Constitution which prescribe the terms of office of public officials or which restrict the number of terms that public officials may serve, shall take effect upon the dates of the first elections or the first appointments of such public officials under this Constitution.

Article 5

Acts, decrees, ordinances and treaties in force at the time this Constitution enters into force, shall remain valid unless they are contrary to this Constitution.

Article 6

Those organizations existing at the time of the enforcement of this Constitution which have been performing the functions falling within the authority of new organizations to be created under this Constitution, shall continue to exist and perform such functions until such time as the new organizations are created under this Constitution.

The Korean Executive System

The Executive office is made up of the President, Prime Minister, and members of the State Council (similar to the Cabinet under U.S. system). The President is elected by citizens to a SINGLE, five-year term. There is no re-election. The Prime Minister is appointed by the President with the consent of the National Assembly. The members of the State Council are appointed by the President with the recommendation of the Prime Minister. The State Council is composed of the President, the Prime Minister, and other members. The number cannot exceed thirty but must be no less than fifteen.

From what said writer has observed, the Prime Minister rarely appears on television and appears to yield even less power than the position of Vice-President under the U.S. system.

The Korean Judiciary System

The Korean Judiciary System

The Korean Judiciary System . . . July 20, 2003

There are three levels of courts. The District Court, which included a specialized Family court, is the court of original jurisdiction -- akin to trial court. Next up is the High Court, which is the intermediate appellate court. High Court is the court where an appeal from a District Court case is heard. Finally, there is the Supreme Court, the highest court in Korea.

District Courts and High Courts are divided into geographic districts. The Chief Justice of the Supreme Court is appointed by the President with the consent of the National Assembly, and this term lasts for 6 years. The remaining Supreme Court Justices are apponted by the President upon the recommendation of the Chief Justice with the consent of the National Assembly. All other judges are appointed by the Chief Justice with the consent of the Conference of Supreme Court Justices. This means the judges tend to stick together and protect their turf. The terms of judges last for 10 years. Both the Supreme Court Justices and other judges may be reappointed.

There is a separate Constitutional Court system which is NOT part of the regular judicial system. This system has jurisdiction over the following issues: 1) the constitutionality of a law upon the request of the courts; 2) impeachment; 3) dissolution of a political party; 4) competence disputes between state agencies, between state agencies and local governments, and between local governments; and 5) constitutional complaints as prescribed by law.

No system of precedent court cases

It is very important to note that the Korean judicial system emphasizes statutory interpretations instead of the judicial decisions following the civil law tradition. This means that there is no similar American judicial system of court precedents, and lower courts are free to interpret certain stututory provisions differently than higher courts. Furthermore, a decision of the Korean Supreme Court does not have the binding force of precedent in future cases of a similar nature. It merely has a persuasive effect, just like decisions of the High Courts on District Courts. However, the interpretation of a law rendered in a particular case by the Korean Supreme Court DOES have a binding effect on a lower court when the case is remanded to the lower court. In practice, however, the decisions of higher courts are followed diligently by lower courts.

Said writer believes that in order for the Korean judiciary to develop into a more meaningful and useful system, the American-style of a court precedent system should be effected, particularly because Korean statutes are even more vague than American statutes. Often times, many of the Korean court decisions, which said writer has read, do not make any sense while judges appear to have too much discretion and reach different conclusions on the same issues. Said writer also believes that the precedent cases system will force Korean judges to be more clear and rational in their decisions.

The Korean Legislative System

The Korean Constitution vests the following entities with the authority to enact laws: the National Assembly, the President, the Prime Minister, Ministries, the Supreme Court, the Constitutional Court, Administrative Agencies, and the local governments. These bodies are responsible for proposing, enacting, promulgating, implementing, or amending the laws.

Bills may be introduced by members of the National Assembly or by the Executive. To pass a bill, a majority of the members of of the National Assembly must be present, and also a majority of those present must vote for the bill. Each bill passed by the National Assembly must be sent to the Executive, and the President, if he chooses not to object to the bill, must promulgate the bill within fifteen days.

The President can object to a bill that comes before him by returning the bill to the National Assembly with a written explanation of his objection and suggestion for reconsidering the bill. In this case, the bill can still become a law in the original form if the National Assembly passes the bill again after reconsideration with a majority of the members in attendance and two-thirds of those present voting for passage of the bill.

The President has power to both submit bills to the National Assembly and also to issue laws. Pursuant to Chapter IV, Article 75 of the Constitution, the President can issue presidential decrees that describe in more detail the laws passed.

The members of the National Assembly are elected by citizens for four-year terms and the number cannot be less than 200.