Cecily Zamora
The legal system of South Korea is a civil law system based on the Constitution of the Republic of Korea. Citizens of South Korea are guaranteed various civil rights and protections by Chapter II of the Constitution, including freedom of speech, religion, assembly, and the press, as well as the right to vote, hold public office, and petition the government. The Constitution also imposes duties on citizens, such as military service and taxes. While there is no jury system in South Korea, citizens play a crucial role in the legislative process through their elected representatives in the National Assembly, which has the power of legislation. This process involves drafting bills, consultations with relevant ministries, and cooperation with the ruling party or opposition parties. International treaties and customary international law are also considered in the legal framework, with the Constitution stipulating their observance and enforcement. South Korea's legal system has evolved over time, influenced by traditional community mediation, Buddhism, Confucianism, Christianity, and civil law practices imposed during Japanese occupation.
| Characteristics | Values |
|---|---|
| Legal system | Civil law system |
| Basis of the legal system | Constitution of the Republic of Korea |
| Judicial system | Three-tiered, independent |
| Constitution | Guarantees fundamental rights, including freedom of speech, religion, assembly, and the press |
| Right to vote, hold public office, and petition the government | |
| Protections against double jeopardy, involuntary labor, ex post facto laws, and warrantless searches | |
| Right to education, work, marriage, and health | |
| Duties imposed on citizens | Paying taxes and performing military service |
| Nationality law | Details the conditions for being a national of the Republic of Korea |
| Naturalization | Foreign nationals may naturalize after living in the country for at least five years and showing proficiency in Korean |
| Citizenship | Granted to qualifying individuals under the South Korean Nationality Act and its amendments |
| Amendments to Nationality Law | Addressed gender inequality, allowing non-gendered citizenship inheritance from parents |
| Legislative procedures | Range from drafting of Bills to their promulgation |
| Power of legislation | Granted to the National Assembly and the Executive branch for subordinate statutes |
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What You'll Learn
South Korea's legislative system
The legislative system of South Korea is a civil law system that has its basis in the Constitution of the Republic of Korea. The Constitution is the paramount law and stipulates fundamental matters pertaining to the rights and obligations of the people, fundamental structures of the Government, economic order, management of elections, and so on. It also guarantees citizens several basic rights, including freedom of speech, religion, assembly, and the press; the right to vote, hold public office, and petition the government; protections against double jeopardy, involuntary labour, and warrantless searches of residences; and the right to education, work, marriage, and health.
The Court Organization Act, passed into law on 26 September 1949, officially created a three-tiered, independent judicial system in the Republic of Korea. The revised Constitution of 1987 guaranteed that judges would not be removed from office for any reason other than impeachment, criminal acts, or incapacity. It also established the Constitutional Court, marking the first time South Korea had an active body for constitutional review. The judicial system of the Republic of Korea is composed of the Supreme Court of Korea, the Constitutional Court of Korea, six High Courts, 13 District Courts, and several courts of specialised jurisdiction, such as the Family Court.
The Korean legislative system consists of the Constitution, Acts to realise constitutional notions, and administrative legislation, including Presidential Decrees, Ordinances of the Prime Minister, and Ordinances of Ministries, to effectively implement the Acts. Legislative procedures refer to a series of procedures ranging from the drafting of Bills to their promulgations. A central administrative agency drafts Bills on affairs under its jurisdiction. In cases of administrative affairs under the jurisdiction of more than two Ministries, such Ministries jointly draft a bill. After the drafting of any Bill is completed, consultations on the details of such a Bill with relevant Ministries are required. If necessary, consultations between the Government and the Ruling Party or cooperation from opposition parties are sought.
The South Korean legal system effectively dates from the introduction of the original Constitution of the Republic of Korea and the organisation of South Korea as an independent state. The Constitution can be amended through a national referendum following a resolution by the National Assembly.
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The Constitution of the Republic of Korea
The 1948 Constitution, drafted by Dr. Chin-O Yu, established an assembly-independent republic with a president as the head of state. The president was to be elected indirectly by the National Assembly and would share executive power with the cabinet. This constitution was amended in 1952, introducing direct presidential elections and a bicameral legislature.
The 1987 revision of the constitution further codified judicial independence, guaranteeing that judges could not be removed from office except in cases of impeachment, criminal acts, or incapacity. This version also established the Constitutional Court, marking the first time South Korea had an active body for constitutional review.
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Rights and freedoms of citizens
The rights and freedoms of citizens in South Korea are codified in the Constitution of the Republic of Korea. This Constitution compiles the legal rights of its citizens and protects them. These rights include freedom of speech, freedom of the press, freedom of assembly, and freedom of petition. The Constitution also guarantees freedom of residence, the right to move at will, and freedom of occupation. Citizens also have the right to be free from intrusion into their place of residence, and no citizen shall be subject to double jeopardy.
However, these rights are not without limitations. The National Security Law makes it a crime to express sympathies with North Korea, and the National Security Act prohibits "anti-government activities", including promoting anti-government ideologies (especially communism) and joining anti-government organizations. The National Security Law and Act are unevenly enforced, but there are still annual cases brought against citizens. The government also maintains unreasonable restrictions on freedom of expression, association, and assembly.
South Korea has a high human rights record in the category of human freedom in civil and political rights. The country has a free press and a lively civil society. However, successive South Korean governments and large corporations have used defamation laws, the national security law, and restrictive interpretations of other laws to limit critical scrutiny. The country also struggles with discrimination against at-risk groups, including women, LGBT individuals, and racial and ethnic minorities.
The Constitution of the Republic of Korea grants the National Assembly the power of legislation and permits the Executive branch and other agencies to exercise lawmaking powers on subordinate statutes other than Acts. Acts are the forms of legal norms stipulated by the legislative principles of the National Assembly. All of the rights and freedoms of the people may be restricted by Acts in cases where it is deemed necessary for safeguarding national security and maintaining public order or public welfare.
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The judicial system
The Citizen Participation in Criminal Trials system, implemented in 2008, combines elements of the American jury trial system and the German citizen-judge system. Citizens can participate as jurors in specific cases, rendering verdicts independently of the judge. However, if the jury cannot reach a unanimous decision, they must consider the judge's opinion on the evidence before rendering a verdict again. If the jury still cannot reach a unanimous decision, the verdict will be based on a majority decision.
Prosecutors play a crucial role in the criminal law system, as they determine whether to proceed with a case and whether to request a detention warrant to keep a suspect in custody during the investigation. South Korean criminal law applies to both citizens and foreigners who commit crimes within the country's territory, and all suspects are presumed innocent until proven guilty.
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Creating and amending laws
The legal system of South Korea is a civil law system that has its basis in the Constitution of the Republic of Korea. The Constitution, as the paramount law, stipulates fundamental matters pertaining to the rights and obligations of the people, fundamental structures of the government, economic order, and management of elections, among other things. Citizens of the Republic of Korea are guaranteed several fundamental rights by Chapter II of the Constitution. These rights include freedom of speech, religion, assembly, and the press; the right to vote, hold public office, and petition the government; protections against double jeopardy, involuntary labour, ex post facto laws, and warrantless searches of residences; and the right to education, work, marriage, and health.
The Constitution is the standard for the legislation and amendment of Acts and subordinate statutes of the Republic of Korea. Acts are the forms of legal norms stipulated by the legislative principles of the National Assembly and prescribe the principle of legality, principle of legislated taxation, requirements for the acquisition of Korean nationality, expropriation and indemnity of property rights, and the establishment of Ministries and categories of local governments. Legislative procedures refer to a series of procedures ranging from the drafting of Bills to their promulgations. A central administrative agency drafts Bills on affairs under its jurisdiction. In cases of administrative affairs under the jurisdiction of more than two Ministries, such Ministries jointly draft a bill. After the drafting of any Bill is completed, consultations on the details of such a Bill with relevant Ministries are required. If necessary, consultations between the Government and the Ruling Party or cooperation from opposition parties are sought.
The Court Organization Act, passed into law on 26 September 1949, officially created a three-tiered, independent judicial system in the Republic of Korea. The revised Constitution of 1987 guaranteed that judges would not be removed from office for any reason other than impeachment, criminal acts, or incapacity. It also established the Constitutional Court, marking the first time that South Korea had an active body for constitutional review. The judicial system of the Republic of Korea is composed of the Supreme Court of Korea, the Constitutional Court of Korea, six High Courts, 13 District Courts, and several courts of specialized jurisdiction, such as the Family Court.
The traditional Korean legal system relied heavily on community elders as mediators. However, as Korea modernized, lawsuits increased dramatically. The South Korean legal system effectively dates from the introduction of the original Constitution of the Republic of Korea and the organization of South Korea as an independent state.
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Frequently asked questions
The South Korean legal system is a civil law system based on the Constitution of the Republic of Korea.
The legislative process involves a series of procedures, from drafting Bills to their promulgations. The National Assembly has the power of legislation and can permit the Executive branch and other agencies to exercise lawmaking powers on subordinate statutes.
Citizens of South Korea are guaranteed fundamental rights by the Constitution, including freedom of speech, religion, assembly, and the press, as well as the right to vote, hold public office, and petition the government. They can use these rights to influence law-making by electing representatives who share their values and advocating for their preferred policies.
The Constitutional Court was established by the 1987 Constitution and is responsible for reviewing the constitutionality of Acts, Presidential Decrees, and other laws. It ensures that laws do not violate the fundamental rights and freedoms guaranteed by the Constitution.
