Law and Custom in Korea

Abstract

This book sets forth the evolution of Korea's law and legal system from the Chosǒn dynasty through the colonial and postcolonial modern periods. This is the first book in English that comprehensively studies Korean legal history in comparison with European legal history, with particular emphasis on customary law. Korea's passage to Romano-German civil law under Japanese rule marked a drastic departure from its indigenous legal tradition. The transplantation of modern civil law in Korea was facilitated by Japanese colonial jurists who created a Korean customary law; this constructed customary law served as an intermediary regime between tradition and the demands of modern law. The transformation of Korean law by the forces of Westernisation points to new interpretations of colonial history and presents an intriguing case for investigating the spread of law on a global level. In-depth discussions of French customary law and Japanese legal history also provide a solid conceptual framework suitable for comparing European and East Asian legal traditions.

The Spirit of Korean Law

“…28 Ibid., 4, 29. 29 Kim,Law and Custom in Korea,25. complemented, modified, and emended, according to new ad hoc decisions dictated by unforeseen situations. These decisions were turned into "fixed rules" (chŏngsik) and later compiled together with the edicts they modified.…”

“…"24 He agreed that ritual and virtue were at the root of good governance and rulers could not rely solely on regulations and punishment, but he also argued that it was impossible to depend solely on rituals and virtue without the backing of law and punishment. 25 The legal thought of Zhu Xi is highly relevant for Chosŏn, where it wielded strong authority and served frequently as a reference at the royal court in discussion of legal matters.26 Norman P. Ho has summarized Zhu Xi's views as follows:…”

“…For example, they secured room for custom and interpretive flexibility by using as many general terms as possible. They devised ways to preserve the indigenous family system, which had functioned as a basic unit of Japanese polity and society, without 25 Minsapǒp Yǒnguhoe, Minpǒpan ŭigyǒnsǒ (Opinions on the proposed civil code) (Seoul: Minsapǒp Yǒnguhoe, 1957), 6. This volume included the opinions of property law scholars.…”

“…The common view held that judges would remain less than enthusiastic about making requests for review, which was considered their dominant attitude under the authoritarian regimes. 25 A remedy against the possible passive obstruction of ordinary tribunals was introduced in the 1988 Constitutional Court Act. In Article 68 (2), the law ensures that a complaint can be filed directly by litigants if an ordinary tribunal declines to ask the Constitutional Court to examine the statute's 24 Constitutional Court of Korea, Twenty Years, 99.…”