Gavin Howe
South Korea's legal system is a civil law system with a written constitution. The country's judicial system is based on a continental-style inquisitorial system, which is notably different from the common law adversarial system. Common law systems are generally based on past decisions in similar cases by judges, with common law being the most widespread legal system in the world in terms of the number of people employing it. South Korea's legal system has been influenced by both European civil law and American legal concepts, with the former having a greater influence.
| Characteristics | Values |
|---|---|
| Jury system | Limited provision for advisory juries in criminal and environmental cases since 2008 |
| Judicial system | Supreme Court of Korea, the Constitutional Court of Korea, six High Courts, 13 District Courts, and several specialized courts |
| Judicial independence | Codified in the 1987 Constitution in Article 103 |
| Judicial tradition | Dates back to 2333 B.C. with the first state established in Korea, Kojoseon |
| First modern written constitution | Introduced in 1894 during the Joseon Dynasty |
| Common law marriage | Referred to as De Facto Marriage, a limited exception to the "legal marriage" concept |
| Legal representation | Foreigners are entitled to an interpreter throughout a trial |
| Arrest procedures | Can be made by the Korean National Police Agency, a prosecutor's office, or other government agencies |
| Bail | Rare, especially for serious crimes or foreigners charged with felonies |
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What You'll Learn
South Korea's judicial system
The 1987 Constitution also codified judicial independence in Article 103, stating that "judges rule independently according to their conscience and in conformity with the Constitution and the law." This amendment established the Constitutional Court, marking the first time South Korea had a body for constitutional review. The National Security Act, a limitation on civil rights, restricts "anti-government activities" and criminalises activities such as promoting anti-government ideologies or joining certain organisations.
South Korea's criminal law system has some unique features. There is no traditional jury system, although a limited advisory jury provision was introduced in 2008 for criminal and environmental cases. Trials are conducted orally and in writing, with witnesses providing testimony during a trial session or in writing to the court. The lawyers for both sides present their arguments orally and in writing through legal briefs. Foreigners on trial are entitled to an interpreter. Bail is not common and is rarely granted to foreigners or those accused of serious crimes.
South Korea's legal system guarantees its citizens fundamental rights, including freedom of speech, religion, assembly, and press, as well as protection against double jeopardy, involuntary labour, and warrantless searches. These rights are outlined in Chapter II of the Constitution, which also imposes duties on citizens, such as paying taxes and participating in military service.
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The 1987 Constitution
South Korea is not a common law country. It has a civil law system based on its constitution. The country's legal system was influenced by both European civil law and American legal concepts, with the majority of influence coming from the former.
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Civil rights and restrictions
South Korea has a civil law system based on the Constitution of the Republic of Korea. The country's legal system was formalised after liberation from Japanese rule in 1945, with influences from European civil law and American legal concepts. The Court Organization Act of 1949 established a three-tiered, independent judicial system, and the 1987 Constitution codified judicial independence.
South Korean democracy provides legally protected rights for political, civil, and socio-economic individuals, as outlined in the Constitution of the Republic of Korea. Citizens are guaranteed freedom of speech, press, petition, and assembly. However, the National Security Act criminalises speech in support of communism or North Korea, and cases are brought annually despite a decline in prosecutions.
South Korea has a high human rights record, scoring 83 out of 100 points in the Freedom in the World index in 2024. The country has made progress in certain areas, such as the Supreme Court ruling that granted same-sex couples health insurance benefits, and the Central Military Commission's decision to recognise Sergeant Byun Hui-su's gender reassignment as valid, overturning a previous decision that deemed it a "disability".
However, there are still limitations and discrimination against certain groups, particularly women, LGBT individuals, and racial and ethnic minorities such as refugees and migrants. For example, women's rights organisations have raised concerns about the treatment of Filipino domestic workers, who were paid below the minimum wage and subjected to a nighttime curfew. Additionally, there has been insufficient action taken to address technology-facilitated gender-based violence.
South Korea also faces challenges in protecting the rights of its citizens to a healthy environment. In 2024, the Constitutional Court ruled that the 2021 Carbon Neutrality Act did not adequately protect future generations from the harms of climate change.
In terms of labour laws, South Korea mandates certain protections for employees, such as working hours and annual leave, and these protections extend to South Korean employees working abroad.
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Criminal law
South Korea's legal system is based on civil law, which is underpinned by the Constitution of the Republic of Korea. This means that the country's criminal law system is markedly different from those of common law countries, such as Canada, the United States, and the United Kingdom.
The South Korean criminal law system is based on a continental-style inquisitorial system. In this system, prosecutors directly or indirectly conduct criminal investigations. This is in contrast to common law systems, where an adversarial approach is taken, with prosecutors and defence lawyers playing more distinct roles.
In South Korea, a person is presumed innocent until proven guilty. An arrest can be made by the Korean National Police Agency, a prosecutor's office, or other government agencies, such as the Korea Customs Office or the Korea Immigration Office. Foreigners who commit crimes within South Korea are subject to South Korean criminal law and are usually kept in detention throughout the investigation and trial process, as they do not typically have a permanent residence in the country. Bail is not commonly granted for foreigners, and they will generally be deported after serving their sentence.
South Korea's criminal procedure includes the right to an interpreter for those who do not understand Korean. During interrogation by the authorities, individuals are entitled to assistance from a certified interpreter and an oral translation of any written statement they may be required to sign. The skills of interpreters can vary, with Korean-English interpreters generally more readily available than Korean-French interpreters.
The South Korean judicial system is composed of the Supreme Court, the Constitutional Court, six High Courts, 13 District Courts, and several specialised courts, such as the Family Court and Administrative Court. The 1987 Constitution established judicial independence, guaranteeing that judges cannot be removed from office except through impeachment, criminal acts, or incapacity.
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Arrest and bail
South Korea is not a common law country. Its legal system is based on civil law, with its foundation being the Constitution of the Republic of Korea. The country's legal system has evolved from informal, Confucian-based dispute resolution during the Joseon Dynasty to a globally-influenced system based on global norms. Under Japanese colonial rule from 1910 to 1945, Korea adopted a civil law system modelled on Japan's, introducing courts and legal codes based on Japanese law. Following liberation in 1945, the country established its own legal system, influenced by European civil law and American legal concepts.
The South Korean legal system has a three-tiered, independent judicial structure, with the Supreme Court of Korea at the top, followed by the Constitutional Court of Korea, six High Courts, 13 District Courts, and several specialised courts, such as the Family Court and Administrative Court.
The arrest process in South Korea can be initiated by the Korean National Police Agency, a prosecutor's office, or other government agencies. An arrest may be made when investigating authorities believe there is sufficient evidence to justify detention and/or criminal charges. The accused can be detained if there are reasonable grounds to suspect that they have committed a crime, and this detention can be up to 48 hours without being officially charged.
Bail in South Korea is not a guaranteed right and is determined by a judge. The opportunity for bail is limited, and a judge may deny bail if the accused:
- Is charged with an offence punishable by death, life imprisonment, or a lengthy prison sentence.
- Has a history of committing crimes or is considered a habitual offender.
- Is suspected of destroying or likely to destroy evidence.
- Is suspected of escaping or likely to escape (no fixed dwelling).
- Has an unknown dwelling or residence.
If bail is granted, the court will determine the amount of bail money, taking into account the weight of the evidence against the accused, their previous offences, character, circumstances, and financial ability. The bail amount must not exceed the financial capacity of the accused, and a court may allow a third party to pay the bail money if requested.
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Frequently asked questions
No, South Korea is not a common law country. It is a civil law country with a legal system based on the Constitution of the Republic of Korea.
Common law and civil law are two of the four major legal traditions, the others being customary law and religious law. Civil law, also known as Roman law, is the most widespread by landmass and population, while common law is employed by the most significant number of people compared to any civil law system. Civil law is based on codified statutes that are passed by a legislature, whereas common law is based on the decisions in cases by judges.
The judicial tradition of Korea dates back to 2333 BC when Kojoseon, the first state established in Korea, promulgated the Eight Article Law. During the Joseon Dynasty, disputes were settled through informal, Confucian-based dispute resolution. Under Japanese colonial rule from 1910 to 1945, Korea adopted a civil law system modelled on Japan's, marginalising Korean lawyers in favour of Japanese lawyers. After liberation in 1945, the Republic of Korea was founded in 1948, and the country formalized its legal system with influences from both European civil law and American legal concepts. The Court Organization Act, passed on September 26, 1949, created a three-tiered, independent judicial system. The current Constitution, last amended in 1987, established the separation of powers between the legislature, the executive, and the judiciary.
The South Korean legal system features a hybrid of the European civil legal system and the Anglo-American legal system. It includes elements such as jury trials, the law school system, sentencing guidelines, and amicus curiae briefs. The judiciary is composed of the Supreme Court of Korea, the highest court in the nation, the Constitutional Court of Korea, six High Courts, 13 District Courts, and several specialised courts such as the Family Court and Administrative Court.
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