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Recent colonial compensation lawsuits reflect the metamorphosis of historical grievances in collective public memory into tort claims in private law. This article provides a synthetic view of the nexus of colonial law and history in South Korea–Japan relations, focusing on cross-border litigation brought by former forced laborers and victims of sexual servitude known as “comfort women” during World War II. The concept of public policy (ordre public) in Korea, which has colonial origins, has long served law courts as the standard for deciding the validity of a juristic act. But of late heavy reliance on the general clauses of law in legal proceedings has risked turning history and law into handmaids of national spirit, muddling historical accountability and legal liability. Improvement of South Korea–Japan ties should start from a more accurate understanding of colonial laws and a rounded appreciation of their shared legal history.
Are legal traditions incommensurable? Professor H. Patrick Glenn argued that the idea that legal traditions were not suitable for comparison was a result of the reification of cultures. This chapter discusses Glenn’s insights of tradition and commensurability by examining the variants of the concepts and practices of lineage property in historical Confucianism. In the Confucian sphere of influence, marked by the shared precept of ancestral worship and primacy of ritual obligation, legal developments concerning lineage organization and property converged and diverged, revealing the complexity in humanity’s efforts to respond to the various challenges it faced. This examination illustrates Glenn’s central idea that legal traditions of the world are not only comparable and translatable but also transplantable. Transformation and transmission of law in East Asia underscore the need to compare legal traditions, both within and without in all its independence and interdependence, and further to understand the past in its own terms in all the interconnectedness of autonomous dimensions of life at a given time.
This chapter examines jurisprudential evolution during the Third Republic under President Park Chung Hee, from 1962 to 1972. The record of the Supreme Court during this period shows that strong deference to the legislature and the executive branch prevailed in constitutional interpretation. Political questions were largely shielded from judicial interference. National security issues continued to play an important role, as seen in the Minbiyon and the Tongbaengnim (East Berlin) cases in the late 1960s. The State Tort Claims Act case of 1971 marked the first and the only time before 1987 that the Supreme Court declared the unconstitutionality of a statute on substantive grounds and refused to enforce it. After this monumental decision, the Court returned to its traditional position of refraining from rendering a constitutional ruling on sensitive political matters. The judicial strike in 1971 reveals the uneasy relationship between judges and prosecutors.
This chapter introduces the main themes and arguments of the book. Each of the nine chapters provides a historical account of the courts that were entrusted with the dual duties of implementing the laws and promoting justice at a time of particular challenges of constitutional transition. An open, evolutionary interpretation of the judiciary, cutting through the country’s constitutional and political thickets, illumines the way Korea addresses the relationship between legality and substantive justice.
The conclusion argues that the democratic rule of law emerged in the late 1980s on the foundation of the constitutional order that had been maintained throughout the Korean Republic’s history, as the courts continued in their basic function of interpreting the law faithfully and consistently. Through a candid and well-rounded understanding of the past, one can aspire to mend the chasm in Korean society and preserve the hard-fought ideal of judicial independence.
This chapter examines the courts and jurisprudence under the Yusin Constitution. In his book on the “dual state” in Nazi Germany, Fraenkel showed how the prerogative state in the public law realm could coexist with the normative state in the private law realm. Fraenkel’s dual state theory offers important insight for the judicial process in Yusin Korea. Even with the existence of the emergency military courts, the regular justice system, criminal and civil, continued to function. In this situation, it was critical for the courts to maintain the ordinary business of the law, especially as long as the regime’s concern for legitimacy still committed it to at least a semblance of legality and judicial independence. The first part of the chapter discusses security cases, and the second part nonsecurity cases. In the height of the institutionalized arbitrariness of emergency rule, there were flourishing and sound jurisprudential activities taking place.
This chapter surveys the evolution of the courts and the constitutional system during the First and the Second Republics between 1948 and 1962. The promulgation of the Constitution of 1948 was an embodiment of the popular aspirations for liberal democracy, distilled during the three years of the US military occupation following independence from Japanese colonial rule in 1945. Three main elements that influenced the nature and direction of the nascent Korean judiciary were legal tradition, colonial memory, and national security. An important facet of Korea’s legal culture, dating from the Choson dynasty and continuing in the colonial period, was faithful adherence to the law texts and judicial deference to the political branches. The Kyonghyang Sinmun case of 1959–1960 deals with the relationship among various sources of law in the nascent republic and the development of judicial review.
This chapter examines the unfolding of politics between 1980 and 1987. President Park’s assassination by Kim Chae-Kyu in 1979 was followed by a military coup by General Chun Doo Hwan. Chun, as president of the Fifth Republic, continued authoritarian rule, albeit under the democratic 1980 Constitution. This makes the question of authoritarian legality during the Fifth Republic different from that in the Fourth Republic under the Yusin Constitution. Park’s murder trial in 1980 was one of the most pivotal political cases in modern Korea. This chapter focuses its discussion on the legal analysis of the case and its implications for the judiciary, in particular how the Supreme Court dealt with the legal and political consequences of Kim’s crime and what its decisions, both the majority and dissenting opinions, meant for the role of the court in Korea. The judicial process is examined in the contexts of the rule of law, judicial independence, and judicial activism and restraint.
The promulgation of the Constitution in 1987 has been hailed as a defining moment in Korean history, putting to an end the long authoritarian rule and the moribund streak of constitutional justice. Constitutional adjudication became the primary means through which to enforce fundamental norms. There was a massive call from civil society for transitional justice, and a number of cases decided during the authoritarian period have come to retrial. The most notable turnabout in jurisprudence concerned cases involving the emergency decrees from the Yusin period. In 2010 and 2013, the Supreme Court and the Constitutional Court each declared that the emergency decrees were unconstitutional. This has given rise to the question of an unconstitutional constitution. Recent jurisprudence reflects the global trend of the constitutionalization of law, in which the constitution becomes a legal instrument applicable in all aspects of law and judicial administration.
This chapter discusses the predicaments of judges under constitutional authoritarianism in terms of the recurrent problems in legal theory of the judicial dilemma of unjust laws and conflict between legal positivism and natural law theory. Like antislavery judges in antebellum America, Korean judges under the Yusin Constitution faced an intellectual quagmire between judicial duty and conscience. The dispositional issue was, however, less the morality of the law or the conscience of judges as individuals than the command of the law that imposed limitations on basic rights in the name of state necessity. The Myongdong Democracy Declaration case (1976) reveals the arbitrariness of the emergency decree system in force and showed that the judges faced an uphill battle. The assassination of President Park Chung Hee in 1979 brought the Yusin period to a hasty end.
This chapter examines the constitutional and legal changes brought on by the promulgation of the 1972 Constitution, commonly known as the Yusin Constitution. The new Constitution upended Korea’s political order by practically dismantling checks and balances. The president held complete control over state affairs, and the judiciary lost the power to review legislative enactment. Under the resulting constitutional authoritarianism, the Constitution served as a practical working principle of government power monopolized by the regime. Article 53 of the Constitution granted the president power to issue emergency measures, and between 1974 and 1979 President Park imposed a total of nine such decrees. These executive orders, constitutionally excluded from judicial review, served as the main instrument for the government in suppressing political opposition and sidelining the judiciary.