The Rule of Law in South Korea:
Insights into the Social Evolution during the Two Decades with the New Constitution (1987-2007)
Kyong-Whan Ahn
Professor of Law, Seoul National University
Chairperson, National Human Rights Commission of Korea
October 2007
1. Introduction
The “rule of law”, as amorphous as the concept may be, has been accepted as the most sacred value that every state has to proclaim in its own constitutional order. Following up the footsteps of Albert V. Dicey 1 , many scholars have wrestled with the almost futile task of defining the meaning and components of this elusive term, and a plethora of literature have been produced and stored in the archives of the rule of law. Korean jurists also have wrought to reduce this fleeting concept to manageable categories constructed with the ordered principles and elements.
2 However, the academic works to date have proved only one thing - the inherent impossibility of defining it in this piscatorial expedition. Any definition of the rule of law will not be natural nor immutable, but artificial, arbitrary,
* Note: This paper is revised from the paper presented in the 1 st Annual BESETO Conference: Legal
Approach to Regional Cooperation in East Asia at College of Law and Law Research Institute, Seoul
National University, Seoul, South Korea, 14 September 2007.
1 For his classical insights, see ‘Introduction to the Study of the Law of the Constitution (1885).’
2 See Choi (2007, i-xiii) and Yang (2002, 188). Yang narrowed down the definition of ‘the rule of law’ in terms of ‘practical utilities’. He suggested two elements: first, a legislative act must meet essential prerequisites such as clarity of the meaning and the principle of non-retrospectivity in criminal law; second, the independent judiciary and fair trials must be ensured. He argued that both of these elements are necessary for the prevention of arbitrary use of state power. Practitioners also have dealt with this topic frequently. For further discussions, see Seoul Bar Association (2002, 42-51) and Korean Bar
Association (2004, 17-65).
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cultural, relative, contingent, and evolving.
In this respect, this paper will not attempt to reexamine the contributions of preceding authors. Rather dispensing with rigorous scrutiny, this paper will carry various terminologies commonly used under the broad umbrella of the “rule of law”, and overview salient features of the social changes brought under the 1987 Constitution regime for the last two decades. As one foreign observer put it, “twenty years in Korea could mean a century elsewhere.” The Korean society has been in transition towards democratization and economic development, with dramatic changes in all cross-sections over the last two decades. The law and legal system played significant roles in both political and economic domains.
A few scholars took intellectual expedition to theorize the influence of the Confucian tradition in shaping up the frameworks or working mechanisms of the rule of law, which is supposedly a modern import from the western society. Their efforts have made some noticeable imprints in the garden variety of theoretical discourses, 3 but their arguments remain largely unheeded by the mainstream school. This paper does not deal with this theme under separate heading.
This paper is based on the argument that the rule of law in Korea has been substantially improved in terms of its degree and standards over the period.
2. Legitimacy of the 1987 Constitution
A consensus has been made that 1987 was a watershed year in the course of
Korea’s move toward full democracy. In that year, a new constitutional regime was born as a product of long-standing civil resistance to the authoritarian regime. The new constitution prides itself with the restoration of direct election of the President. Having regained the right to elect a national leader with their “own hands,” Korean people have no reason to question the legitimacy of this savior document. Therefore, any debate for future amendment would relate to its functional efficiency, not the legitimacy of the current constitutional regime.
4 The key aspect of
3 See Yang (2002, 185-202) and Hahm (2004).
4 A caveat may be added that there is a strong argument that the 1987 Constitution was an interim regime
2

amendment was the stipulation of presidency terms.
5 Under the 1987
Constitution, the President is entitled to a single term of five years.
6 On the other hand, general parliamentary elections take place every four years.
7
Many argue that such irregularity is the root cause for inefficiency, disharmony, and malfunctioning of the present governance system, resulting in instability of a coordinated political system. In April 2007, in response to President Roh’s request, all six political parties in the National
Assembly agreed to the adoption of the constitutional amendment as an agenda in the new parliament to be formed in 2008 by the general elections.
8
Civilian candidates with no military background were successful in the last three presidential elections respectively in 1992, 1997 and 2002. All the elections were honored by peaceful transfer of powers. These facts, taken together, may indicate that Korea’s democracy and constitutional order is maturing and stabilized.
3. Liquidation of the Past Wrongs
Since the dawn of a new era with the 1987 Constitution entered into force, the issue of ‘truth and reconciliation’ has been an unresolved national agenda that was inherited from the turbulent modern history. “The
Kwangju Matter” was a primary debt to be liquidated before any step toward full democracy could be made. After a series of political gestures, a legal epoch was made in 1995: that is, two special legislative acts were passed, 9 which enabled the prosecution of former ring leaders of the coup of 1979 and the Kwangju massacre in May 1980. The yearlong controversies quieted down by the enactment of the special statutes that at best since it was the product from the forced compromise with the old regime.
5 Voices for the conversion into “parliamentary cabinet system” have been intermittently raised in the political circles, but they largely remain a little echo.
6 Article 70 provides that the term of office of the President shall be five years, and the President shall not be reelected.
7 Article 42 states that the term of office of members of the National Assembly shall be four years.
8
See the Korea Times (2007a and 2007b).
9 The Special Act concerning May 18 Democratic Movement, Law No.5029, December 21, 1995 and the
Special Application Act concerning the Crimes against Constitutional Order, Law No.5028, December 21,
1995 ushered in the abolishment of the statute of limitations for crime of treason, foreign invasion, military insurrection, and genocide.
3

resolved the legal challenges of the statutes of limitation and the principle of non-retrospectivity. Eventually, by virtue of the Supreme Court decision of April 17, 1997, former heroes were deprived of the glories and relabeled as criminals, 10 while the “rioters” and victims were exonerated from the past shame and newly honored as the champion of the democratic orders.
As a dedicated scholar argued, the Kwangju trials were a state response to the past military atrocities of the 1980s. They unearthed the hidden truth, paid off overdue compensation, restored disgraced honor, and blessed those in pain with new commemorations.
11 The Kwangju trials paved a legal boulevard for the state to promote other reconciliatory efforts. A multiple state agencies were created to redress past injustices committed in various sectors. For instance, special investigation committees were set up to reexamine the “unexplained deaths” that occurred during the military regimes.
12 The establishment of these agencies and their activities were not always welcome or endorsed by the general public. However, by and large, they nurtured the spirit of judicial activism in remedying past wrongs committed by the state. In 2003, a court ordered the government to compensate the bereaved family of a victim wronged by the Korean CIA in late 1980s.
13 Recently, innocent victims, who were executed just 18 hours after the Supreme Court gave them the death penalty in politically motivated trials in 1975, were posthumously acquitted, restored honors and granted compensation.
14
4. Emerging Spirits of the Participatory Democracy
People’s awakening to their rights has permeated into all areas of their civil,
10 Two former Presidents, Chun Doo-Whan and Roh Tae-Woo were sentenced to life imprisonment and seventeen years imprisonment, respectively. (Supreme Court Decision, 96Do3376 Delivered on April 17,
1997)
11 See Han (2005).
12 For cases and examples, see Presidential Truth Commission on Suspicious Deaths of the Republic of
Korea (2004).
13 Seoul District Court Decision, 2002GaHap32467 Delivered on August 14, 2003.
The Court ordered the State to pay 4.2 billion won to the family members of Susie Kim, a 34 year-old who was murdered in Hong Kong in 1987 by her husband, who avoided the criminal charges under the acquiescence of the National Intelligence Agency buying his story that Kim was a North Korean agent, a claim later found to be false.
14 The Seoul District Court awarded the families of the victims with a record high state compensation.
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political, social, economic, and cultural life. The concept of sovereignty has been materialized, and the spirit of ‘participatory democracy’ has widely spread. In all cross-sections of the society, old practices have been reviewed with new standards. Catch phrases such as ‘consumers rights’ and
‘demand-driven policies’ have become a daily terminology.
15 Under such backdrop, the judiciary has become a fair ground for competing interests, including those of political nature.
16 As more and more people tend to resort to legal process to claim their rights and resolve the conflicts, the pursuit of justice through court proceedings has become a rule rather than an exception.
17
The explosive growth of NGOs in the 1990s provided a new driving force for the democratic consolidation and expansion of legalism.
18 As one prominent leader of the Korean NGO movement in 1990s stated, leading
NGOs of 1990s were departing from earlier tradition and clearly inclined to more legalistic approaches.
19 This explains in part the reason for active involvement of young lawyers in the NGO advocacy.
20 In compliance with the new Zeitgeist and law, the Korean Bar Association amended its charter to require its members to render thirty hours of public service pro bono per annum.
21
The NGOs had no official standing in the conventional regime of the rule of law, in a sense that their eminence was somewhat embarrassing to the existing stakeholders. However, their activities have been largely condoned, if not accepted, as a newly fostered universal rule, as epitomized in the practice of the United Nations. Under the principle of participatory democracy, the civil society has taken actions in relation to the legislature, the executive, and the judiciary. For example, in the parliamentary elections
15 See Chang and Lee (2003). This volume covers various topics, beyond typically issues in the areas, including due process, procedural justice in producing social goods (corporate practice, security regulation, distribution of resources, anti-monopoly institutions, labor law), military trials, child law, administrative litigation, tax litigation, and constitutional justice.
16 See Hyung-Sung Kim (2007, 135-139).
17 See generally Sung-Whan Lee (2007); Ki-Choon Song (2007); Joong-Kwon Kim (2007); Jongcheol
Kim (2006); HoKi Kim (2007).
18 See generally Cho (2006); Eun Jong Park (2006); Cha (2002); Chan-Jin Lee (2006).
19 “All the activities of the PSPD are based on the legal reasoning and the aim at achieving legal victory.”
“The civil society in early 1990s was sharply divided into two groups: socialists and libertarians. Taking a centrist position, the PSPD ventured on a third way.” (See Won-Soon Park, 2006, 21 and Cha, 2002, 134-
173).
20 “MinByun” (Lawyers’ Group for Democratic Society) is a collective representative group of these lawyers (See Won-Soon Park, 2007, 360-361).
21 See Youm and Kim (2006).
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in 2000, several NGOs staged negative campaigns against undeserving candidates, relying on the theories of civil disobedience to justify their actions that were restricted by election laws. As voluntary champions for
‘economic justice’, they also levied legal battles against illegal or unfair business practice, particularly against the Chaebol , Korean conglomerates.
Derivative suits by the minority shareholders were the most noted examples.
22 Many of these litigations were brought by “ideological plaintiffs” such as public interest lawyers and shareholder activists like
PSPD (People’s Solidarity for Participatory Democracy).
23 Such monitoring activities of the civil society substantially contributed to enhancing transparency in business sphere.
Diverse activities of NGO groups provide us with a valuable subject to study for in-depth analysis. At a glance, three groups--namely, women, environmentalists, and persons with disabilities--have reaped remarkable achievements. Some of the NGO leaders of 1990s among these groups turned into policy makers in the government. They brought their agenda to the government, gaining a sarcastic nickname, “Next Government
Officers.” At times, conservative wings criticized NGOs with derogative terms such as “red guards of the (left-wing) government.”
The introduction of a jury system may be singled out as the most revolutionary change in the Korean legal history. From 2012, the Korean version of criminal jury will be placed in a portion of major criminal trials.
For decades, the judiciary has been criticized for its bureaucracy and undemocratic administration. Against this backdrop, the implementation of the jury system will be a symbolic victory for those who have advocated the citizen’s right to partake in the administration of the judicial process, not merely as a passive party, but as a sovereign actor.
24 However, practical usage of the new system is yet to be proved.
6. Local Autonomy and the Decentralization Policies
Local autonomy is a constitutional mandate. Elections for local
22 See Joo Young Kim and Joong Go Kim (2001).
23 See Ohnesorge (2005, 115).
24 See Ahn and Han (2005).
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representatives were first carried out in 1989. “Regionally-balanced development” has been a basic policy framework for every President since
1992. However, it was not until the incumbent Roh administration that this skeleton policy has been bloated with blood and flesh. The dramatic event of constitutional battle in 2004 was caused by President Roh’s attempt to move the national capital away from Seoul.
25 This incident epitomizes the gravity of regional balance in contemporary Korea. In reality, however, the principle of local autonomy is substantially curtailed by the low degree of fiscal independency. In 2006, the National Assembly passed a bill that enables local residents to dismiss local administrative chiefs by recall ballot.
26 Under this law, on 1 September 2007, first time in history, a mayor was suspended from duty by petitions for the recall of the mayor signed by local residents.
27 This may be a beacon that foreshadows the advent of a new era, where the community is governed by grass-root citizens at first hand.
7. Constitution as a Working Document
According to a recent media poll, the Constitutional Court was rated the most influential and credible among public institutions.
28 Activities of the
Constitutional Court have been a useful study material for many international scholars as well.
29 Together with the direct election of the
President, the Constitutional Court has been a symbolic feature enshrined in the 1987 Constitution. Now the Court seems to have firmly established its status and dignity in the daily life of Korean people. President Roh
Moo-Hyun, by frequent involvements, substantially contributed to making it a high-profile Court. He became the first President who was subject to impeachment trial by the Court.
30 In addition, Roh administration’s attempt
25 Constitutional Court Decision 2004HonMa1 Delivered on May 14, 2004. Much details in Ki-Choon
Song (2004).
26 Act on Recall of Local Administrative Chiefs by Local Resident Vote, Law No. 9758, May 24, 2006, as amended as Law No. 8423, May 11, 2007.
27 See The Korea Times (2007d).
28 See Joongang Daily (2007).
29 See Ginsburg (2003, 206-246).
30 See supra note 25. (Dismissal on merit 7:2 votes)
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to move the national capital was blocked by the Constitutional Court.
31
Moreover, in his ‘personal’ capacity, he filed a constitutional petition against the warnings of the National Election Committee issued to him for allegedly violating the duty of neutrality as provided by the Act.
32 Despite the enhanced recognition and roles of the Constitutional Court, however, the dignity and commemorative value of the Constitution itself has not been elevated.
33
8. Human Rights
There seems to be a wide consensus that Korea’s efforts for the promotion of civil and political rights deserve a fair credit, 34 although a few issues continue to receive international criticism.
35 Public outcry for reformation of the police and prosecution has led to some concrete measures with institutional changes. For instance, surveillance mechanisms have been reinforced in the investigation and law enforcement processes. A number of detention facilities and military camps are now subject to routine scrutiny.
As a consequence, incidents of blatant abuse of state power including
31 Constitutional Court Decision 2004HonMa554 Delivered on October 21, 2004. Much details in YS
Chang (2006, 9-30).
32 On July 9, 2007, the National Election Commission rejected the request of the Presidential Office asking for a preliminary review of the legality on a planned statement of the President for a potential violation of election laws. In June 2007, the National Election Commission ruled that Roh violated the
Election Law, citing Article 9 of the Civil Service Law which bans pubic officials from being engaged in political activities influencing elections. In strong political overtones, President Roh filed a libel suit against a Presidential candidate for the December election and his aids (See the Korea Times , 2007c and
2007e).
33 For one example, The Constitution Day, July 17, commemorating the birth of the founding 1948
Constitution, is destined to lose its dignity as a national holiday from 2008.
34 This is indirectly supported by the incident that an attempt for a special legislation for anti-terrorism law was blocked, against then prevalent international sentiments following the September 11 bombing of
2001. Inspired by 9.11 and encouraged by follow-up legislations in the U.S., the Korean National
Intelligence Service drafted and submitted to the National Assembly “Anti-Terrorism Bill” on November
21, 2001. In Feb. 2002, National Human Rights Commission issued a public statement opposing to the bill. Advocates for “War against Terrorism” tend to exploit the ambiguity of humanitarian law and the rules of law on the use of force, hardly recognizing human rights as relevant norm (See K. Han Lee, 2004,
129-154).
35 Korea’s human rights records are often discredited due to its retention of death penalty and the
National Security Law, and the denial of conscientious objection. One of the welcoming news is that the
Korean government announced on 18 September 2007 that it will allow conscientious objectors against mandatory military service to conduct alternative services such as caring for the disabled, instead of imprisoning them. Another commendable aspect is that 2008 will mark the 10th year of non-execution, notwithstanding Korea’s retention of the death penalty.
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torture have been remarkably reduced in recent years. In addition, the world witnessed Korea’s economic uprising over the past two decades.
Eventually Korea joined the OECD in late 1990s, and successfully overcame the Asian financial crisis (IMF conditionality) with maintaining the average growth rate.
As is common with the Post-World War II constitutions, the Korean
Constitution also includes a catalogue of social rights.
36 However, until
36 Articles 31-36 of the Constitution:
Article 31
1. All citizens shall have an equal right to receive an 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 institutions of higher learning 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 the 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 the 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 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 beings.
2. The State shall have the duty to endeavor to promote social security and welfare.
3. The State shall endeavor to promote the welfare and rights of women.
4. The State shall have the duty to implement policies for enhancing the 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 pleasant environment. The State and all citizens shall endeavor to protect the environment.
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recently, these rights remained declaratory in nature and lacked enforceable mechanisms. Since 1990s, however, the Constitutional Court has explicitly recognized a few social rights as working norms and mandated the state to provide necessary facilities and resources to realize those rights. In many of these litigations, lawyers played a key role as ideological plaintiffs, supplying an old adage with some warm breadth: “A lawyer is a very valuable piece of property in a poor community.” 37 Such court decisions came out in parallel with the general trend of increasing social welfare budgets. For the last ten years, various policies caring for the underprivileged groups have been newly adopted, implemented or accelerated. The National Human Rights Commission also made a number of policy recommendations to that effect. Frustrated conservatives have countered with a political slogan, shouting for the “restoration of the lost decade.” 38 The ideological and political debates continued to determine to what extent these social rights should be realized and maintained.
Legal powers and dignity of the judiciary have been substantially upgraded, while those of the prosecution have been diminished proportionately in reverse. The principle of judicial independency is firmly rooted down, and thus no administrative power dares to control or influence judges. Now, people begin to worry that the judiciary is “overly independent.” A troubling fact is that the entire judiciary is under the monopolistic internal control of a single person, Chief Justice of the
Supreme Court. Moreover, Chief Justice is empowered with the constitutional or statutory rights to appoint members of many state organs, including three Justices of the Constitutional Court.
39
On all fronts of the Korean society, battles for equality are underway.
2. The substance of the environmental right 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.
37 Stephen Wechsler as cited in Felicia Kornbluh. See Chapter 3 ‘Legal Civil Disobedience’ in Kornbluh
(2007).
38
See the Hankyoreh [Daily News] (2007).
39 Article 111(2) states that the Constitutional Court shall be composed of nine Justices qualified to be court judges, and they shall be appointed by the President.
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As the blatant usurpations of state power have decreased, ‘antidiscrimination’ has emerged as a new issue of public concern. Korea appears to be undergoing a national campaign for the equality war. Under such backdrop, legal grounds prohibiting discriminatory practice and unequal treatment have been widely broadened. The National Human
Rights Commission Act (2001) enumerates 19 grounds on which discriminatory treatment is prohibited.
40 Along with the conventional categories such as race, sex, and social status, included therein are age, medical history and even ‘sexual orientation’. Well-organized activities of women’s groups 41 and disability organizations resulted in remarkable achievement with various protective legislations.
42 As Korean society is passing through a rapid transformation, cultural elements in the Korean people’s perception of equality are also changing.
43 All in all, battles for equality will be a continuing agenda for decades to come, where no Korean is exempted from conscription.
9. Procedural Justice
In parallel with the expansion of the criteria of the substantive rights, public recognition of procedural justice has improved as well. A garden variety of legislations came out to expedite freer flow of information and to safeguard the right to information and informed decision. The Administrative
Procedure Act (1996) 44 and the Information Disclosure Act (1996) 45 are the prime examples. The Administrative Procedure Act seeks to impose
40
Article 2(4) of the National Human Rights Commission Act, Law No. 6481, May 24, 2001, as amended as Law No. 8435, May 17, 2007 provides that the term “discriminatory act violating equal rights” means committing any of the following without any reasonable ground, on the basis of sex, religion, disability, age, social status, region of origin (referring to place of birth, base area of registration, principal area of residence before reaching maturity, etc.), national origin, ethnicity, physical condition including physical features, marital status such as married, single, separated, divorced, widowed, remarried or living together, pregnancy or having given birth, family form or family surroundings, race, skin color, ideology or political opinion, criminal record whose effect of punishment has been extinguished, sexual orientation, academic status, medical history, etc.
41 See Nam Youn (2006, 201-229).
42 In 2007, two statutes on the subject, namely the Anti-Discrimination Act and The Act for the
Promotion of Education of the Persons with Disability were enacted.
43 See Lee Ilhyung.
44 Law No.5241, December 31, 1996 as amended as Law No.8451, May 17, 2007.
45 Law No.5245, December 31, 1996 as amended as Law No.8171, January 3, 2007.
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more stringent requirement on the way agencies carry out actions affecting private interests, and in particular seek to impose ‘rule of law’ benchmarks such as requiring that regulatory decisions be based on specific, pre-exiting legal norms.
46 Allowing the courts to enforce these procedural rights on behalf of private plaintiffs is aimed to legalize the relationship between regulatory agencies and the civil society. Populist-progressive rationale for administrative reform stems from a wide spread sense that the
‘developmental state’ is bound to sacrifice democracy and responsiveness on the altar of high-speed growth.
47 Civil society groups patronize the information disclosure statutes to address specific instances of public wrong-doing.
These incidents, taken together, represent a fundamental shift towards the legislation of the state-civil society collaboration. There has been a strong criticism that the left-leaning President was battling business interests by expanding the investigative authority of the Fair Trade
Commission.
48 Recently, radicalism in the labor movement has been substantially moderated, apparently influenced by the public apathy and diminished social tolerance for violent means that some labor activists employed.
10. Shortcomings and Challenges
In spite of all the progress and advances recorded in Korea’s recent history, there still remain many shortcomings and weakness to be addressed. Two points merit special notions: (i) poor records in international compatibility and (ii) inherent fragileness of political parties.
With respect to the first point, discussions on the rule of law to date have largely been confined to geographical borders. International norms have been unduly neglected, sometimes even ignored. Even the international treaties to which Korea has acceded are rarely invoked in the domestic courts. In recent years, globalized economy has driven the domestic market to be keenly responsive to the rules of international
46 See Ohnesorge (2005, 110-111)
47 Ibid. p.112
48
Ibid. p.123
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operation.
49 However, outside the realm of economy, an old adage has never been tarnished in Korea: “Blood is thicker than water.” Korea has lived in a proud myth of the “nation of single ethnicity”. This claim has dubious historical justifications 50 as little as her “long history of five thousand years.” But it is hard and fast enough to represent the public sentiment prevalent in the Korean society. In the 2006 state report submitted to the U.N. Committee on the Elimination of Racial
Discrimination, Korean citizens were described as two groups: “pureblooded” versus “mixed bloods.” 51 Such description may indicate the prejudice against foreigners deeply imbedded in the Korean mindset.
52 In such notion, foreigners are a ‘suspect’ group, to be contained, regulated, and ultimately to be returned to their countries of origin.
53 In recent years, there has been an influx of migrant workers, predominantly from Asian countries. For the last few years, the international marriage has been on the rapid increase, comprising up to 13 percent of the total number of newly weds.
54 It introduced a sudden revolution into a country with strong tradition of ethnic homogeneity. New ethics and rules that are conducive to the multi-ethnic and multi-cultural society are on the horizon.
The second concern, the fragileness of political parties relates to the fact that political parties in Korea have never firmly taken root into its constitutional practice, although guaranteed of a special status in the
Constitution (with financial subsidies). Through the modern history, numerous political parties were in and out, immediately before and after the elections. The phenomena of “merge and acquisition (M&A)” have much longer history in politics than in business arena. No major party has succeeded in presenting its platform distinctive in character, other than its
49 See Chang (2004) and the Wall Street Journal Asia (2007).
50 “About 46 percent of the Koreans’ family name originate from neighboring countries, especially from
China. At least 20 percent of Koreans still use foreign surnames. This shows that people have cherished illusions about their ethnic origins and historical facts” (See the Korea Times , 2007g and Jungho Kim,
2007).
51 For details, see the government report of Republic of Korea submitted to the Committee on the
Elimination of Racial Discrimination (CERD/KOR/14, 10 Aug. 20007), Paragraphs 43- 46 (Ethnic
Minorities), available at www.unchr/ch/huricane/huricane.nsf/view01/
52 See Chulwoo Lee (2004, 233-261) and Chung (2004, 171-195).
53 “Extremely restrictive on granting a refugee status, except for those from North Korea. Before 1997, no single refugee was admitted, and only 48 in total cumulative by the end of 2006” (See the Korea Times ,
2007f).
54
According to “Statistics of Marriage and Divorce in 2005” of the Korea National Statistical Office, the international marriage marked 13.6 percent of the total number of newly married couples in 2005.
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regional power base.
55
11. Addendum: Graduate Law School
The National Assembly on July 3, 2007 passed a bill to implement the
“American-style” graduate law schools as early as 2009, putting an end to years-long controversies. The modalities for the implementation are to be spelled out in the Presidential Decree to be promulgated within this year.
Such transformation is one of the Copernican: it will affect every segment of the Korean legal community and system. The overall impact that the law will bring about is highly conjectural to foresee. In the meantime, the
Korean society will simply have to be ready to embrace trials and errors until the new order with character fundamentally different from the existing framework settles down.
56
12. Concluding Remarks
On the halfway of its swift journey from regress to prosperity, Korea is confronting many new challenges. Both tasks of fostering global competitiveness and achieving domestic justice are critical. As the world is becoming more and more reliant on peaceful conflict resolution, the roles of law and lawyers will expand accordingly. To date, law has played only a minor role in economy, 57 technology, and art in Korea. Expanding legal ballpark to harbor these critical areas will greatly help in securing Korea’s place in the mainstream current of the world’s leading countries. Lastly, without developing peaceful and harmonious relationship with North Korea, prosperity under the rule of law would be a fleeing dream to Koreans.
Recent visit of President Roh Moo-hyun to the North may have the potential for breeding optimism in improving inter-Korean relations and establishing peace on the Korean Peninsula.
55 DLP (Democratic Labor Party) may be noted for an exception, but the gravity of its representation is minimal. In 2003, first time in history, with the aids of new election laws allowing proportional representation, the left-wing party was able to secure a stumping ground in the National Assembly.
56 See Ahn (2006, 223-242) and Sang-Hyun Song (2007, 21-46).
57 See Jae-Won Kim (2007, 47-80) and Dezakay and Garth (2007, 81-106).
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