Korean Law You Can Help Criminal Family Members

Overview of the police force of South Korea

The legal organisation of Republic of korea is a ceremonious constabulary system that has its basis in the Constitution of the Commonwealth of Korea. The Courtroom Organization Human action, which was passed into police force on 26 September 1949, officially created a 3-tiered, contained judicial system. The revised Constitution of 1987 codified judicial independence in Article 103, which states that, "Judges dominion independently according to their conscience and in conformity with the Constitution and the law." The 1987 rewrite also established the Constitutional Courtroom, the first time that South korea had an active body for constitutional review.^[one]

The Korean judicial arrangement is based on a continental style inquisitorial organisation, which is markedly different from the English adversarial system. Like Chinese prosecutors and Japanese prosecutors as well, Korean prosecutors straight or indirectly conduct criminal investigations. Another deviation from the British/American system is the admissibility of suspect interrogation records produced by the prosecutors without defense counsel being nowadays. A confession made without assistance of legal counsel is admissible if the suspect confirms the actuality of the record at a preparatory hearing or during the trial. If the suspect denies its actuality, the record could even so exist open-door if there is a circumstantial guarantee of trustworthiness. However, a record made by a police officer is inadmissible if the suspect denies authenticity later in the process.

Both the Constitution and the Penal Lawmaking contain provisions that prohibit ex post facto laws and violations of due process. In addition, the Constitution requires judicial warrants for abort, detention, search, or seizure, except where a person suspected of a crime is caught in flagrante delicto or where a person suspected of a sufficiently serious crime poses a risk of escape or devastation of evidence, in which cases an ex post facto warrant may exist issued. Additionally, no criminal suspect may be tortured or compelled to testify confronting himself. The Constitution also requires that a person arrested for a offense be given assistance of counsel and have the right to petition the court for habeas corpus.

Citizens of the Democracy of Korea are guaranteed diverse civil rights and protections by Chapter 2 of the Constitution, which likewise imposes the duties of military service and taxes. These rights tin exist suspended however, for the purposes of social social club and national security. The National Security Human action prohibits "anti-government activities", which effectively criminalizes activities such as promoting anti-government ideologies (especially communism) and joining anti-government organizations.

History [edit]

In Korea, many disputes were settled by de facto, breezy mediators like elderberry members of the community or family without making their way to the courtroom.^[2] However, as Korea modernized, lawsuits increased dramatically. The total number of ceremonious cases filed in 2002 was 1,015,894 which went upwardly to 1,288,987 in 2006.^[three] The South Korean legal arrangement effectively dates from the introduction of the original Constitution of the South korea and the organization of South korea equally an contained country. During the existence of the Democracy of Korea, the Constitution has been revised or rewritten several times, the most recent of which was in 1987 at the start of the 6th Commonwealth.

The Court Organization Act, which was 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 non be removed from office for any reason other than impeachment, criminal acts, or incapacity. Additionally, the 1987 Constitution officially codified judicial independence in Commodity 103, which states that, "Judges rule independently co-ordinate to their censor and in conformity with the Constitution and the law." In addition to the new guarantees of judicial independence, the 1987 rewrite of the Constitution established the Constitutional Court, marking the first time that South korea had an agile body for constitutional review.^[1]

Judicial organisation [edit]

The judicial system of the Republic of korea is composed of the Supreme Court of South korea, the Constitutional Courtroom of Republic of korea, half-dozen High Courts, xiii District Courts, and several courts of specialized jurisdiction, such as the Family Court and Administrative Court. In addition, branches of District Courts may be established, as well as Municipal Courts. Southward Korean courts are organized and empowered in capacity Five and Half dozen of the Constitution of the Republic of korea.

At that place is no organization of juries in the judicial system of Republic of korea, although since February ii, 2008 a limited provision for informational juries has been introduced for criminal cases and environmental cases, and all questions of law and fact are decided by judges.

Basic rights [edit]

Citizens of the Republic of korea are guaranteed several basic rights(primal rights) by Chapter 2 of the Constitution. These rights include (just are not limited to):

freedom of speech, religion, assembly, and the press;
the right to vote, hold public function, and petition the authorities;
protections confronting double jeopardy, involuntary labor, ex post facto laws, and warrantless searches of residences; and
the correct to education, work, marriage, and health

In addition to the rights granted in this section of the Constitution, two duties are imposed upon citizens of the Republic of Korea: the duty to pay taxes and the duty to enter into military service. In addition, Article 37(2) provides that the "freedoms and rights of citizens may be restricted by law only when necessary for national security, the maintenance of law and club, or for public welfare".

One limitation placed on civil rights in Republic of korea is the National Security Human action, which limits "anti-government activities". In particular, the National Security Act criminalizes activities such as promoting anti-government ideologies (especially communism) or joining anti-regime organizations.^[4] The Constitutional Courtroom has narrowed the applicational scope of the National Security Act over the years.

Nevertheless, Korean activist lawyers have managed to become a formidable institution within Korea'southward legal organisation, in part due to the election of Roh Moo-hyun as president.^[v]

Criminal police [edit]

Criminal law in South Korea is largely codified in the Penal Code, which was originally enacted in 1953, and has undergone fiddling revision since. In improver to the Penal Lawmaking, several 'special acts' have been enacted that create criminal offenses not institute in the Penal Code or else modify the penalties of crimes found in the Penal Code. In cases where provisions in a special act create an apparent conflict with the Penal Lawmaking, the special act is usually given preference.^[6]

Due process [edit]

Both the Constitution and the Penal Lawmaking contain provisions that prohibit ex mail facto laws and violations of due process. In addition, the Constitution requires judicial warrants for arrest, detention, search, or seizure, except where a person suspected of a crime is caught in flagrante delicto or where a person suspected of a sufficiently serious crime poses a gamble of escape or destruction of show, in which cases an ex post facto warrant may be issued.

Additionally, no criminal doubtable may exist tortured or compelled to testify confronting himself. The Constitution also requires that a person arrested for a crime be given assist of counsel (selected or appointed), exist informed of the charges against him and of his right to counsel, and take the right to petition the court for habeas corpus. A person arrested for a crime besides has the right to have his family or other close kin promptly notified as to the reason, time, and identify of his detention.^[seven]

The Korean Penal Code [edit]

The Korean Penal Code is organized into 372 articles, further organized into 4 capacity of general provisions and 42 chapters of specific provisions. Abortion is restricted under the Korean Penal Code.

Criminal process [edit]

Rules of bear witness [edit]

The Korean rules of prove confer a high probative value to so-called suspect interrogation records produced by the prosecutors, which is "a protocol containing a argument of a suspect or of any other person, prepared by a public prosecutor or a judicial police".^[8] However, this document is technically hearsay under the English American legal system and contains a record of a confession made without assistance of legal counsel. While either the police officer or prosecutor can produce a suspect interrogation record, one made by a prosecutor is admissible if the suspect confirms the authenticity of the record at a preparatory hearing or during the trial. If the suspect denies its authenticity, the record could still exist open-door if there is a circumstantial guarantee of trustworthiness. However, a tape made past a police officer is inadmissible if the suspect denies authenticity later in the procedure.^[9]

The suspect can ostend authenticity by signing the record at the end, at which time it is then is presumed to be confirmed. Some other way to confirm is by substantial acknowledgment where the defendant verifies the content of the record. A police force-produced record is required to take substantial acquittance.

Prosecutors [edit]

The Korean legal organisation belongs to the continental inquisitorial organisation, which is markedly different from the English adversarial system. It was modeled afterward European continental systems such as German and French judicial structure. Like Chinese prosecutors and European and Japanese prosecutors, Korean prosecutors straight or indirectly behave criminal investigations. They involve themselves in judicial procedure past conducting investigations, determining indictable cases, and the prosecution process.

Korean prosecutors have contributed to successful prosecution of many highly ranked officials and renowned conglomerate business leaders, including two erstwhile presidents (1995) and sons of incumbent presidents (1997 and 2002 respectively). Peculiarly in 1997, the South Korean prosecution service contributed to the imprisonment of the son of the incumbent president, Kim Hyeon Chul, which happened for the showtime time in world judicial history. As the issue of successful, even relentlessly fair probings and prosecutions of corporate crimes, they oftentimes confront criticism from corrupt^{[ a fact or an opinion? ]} politicians and business leaders every bit to whether prosecutors' application on laws may be besides severe and harsh.

Two scandal cases correct before the presidential election in 2012 gave huge blows to the reputation of Korean prosecutors, and this brought in the abolition of the "one thousand primal investigation team" in the prosecution service, which was replaced by "anti-corruption squad" in Seoul central district of the prosecution service (in 2013). This was a downsized format of the 1000 central investigation team in overall structure, i.e. personnel and calibration. Too, the Korean government introduced a specially-appointed prosecutors organization (in 2014) for when it comes to handling large corporate-bureaucrat scandals requiring a supreme level of transparency and objectivity. Peculiarly-appointed prosecutors will be chosen by votes of national assembly members.

However, it has been controversial whether the abolition of the m central investigation squad was inevitable, equally it had achieved substantial achievements in constructive prosecution of huge corruption-corporate crimes (during the period 1981–2013). In improver, in that location are doubts whether or not the objectivity of specially-appointed prosecutors would exist guaranteed when the appointment is beingness fabricated by members of national assembly. If the majority of national assembly members exercise not want the criminal instance investigated, then it is likely that the case will not exist handled at all.

During the Lee Myung Bak government, Korean prosecutors often faced criticism over seemingly lenient prosecution of several cases, which was known to be related to President Lee's national project and his relatives. Plus, they are sometimes blamed for suspicious leniency in investigating prosecutors themselves. Nonetheless, since the ballot of President Park, the Korean prosecution service has been making efforts on self-purification process in eliminating corruptions. They also are making endeavours in succession to the past Korean prosecution service'south effective and objective processing of criminal investigations.^[10]

Role of counsel [edit]

Currently, defense force lawyers play a minimal role in the interrogation process. Defence counsel can be present during interrogation and can only object when the method of interrogation is unjust, and counsel can give opinions only after the interrogators approve.

Jury trial [edit]

In January 2009, Korea began experimenting with a limited form of lay jury system.^[eleven]

Civil law [edit]

Civil constabulary(Private law) issues in Korea are regulated past the Ceremonious Code (민법,民法) and the Commercial Code (상법,商法). The Civil Code was enacted in 1960 and is based upon the Japanese civil code which was used in Korea prior to the enactment.

Tort law [edit]

Korean Civil Code Article 750 defines torts past stating "Whatsoever person who causes losses to or inflicts injuries on another person past an unlawful act, willfully or negligently, shall make compensation for damages."

Civil procedure [edit]

Until recently there was little English literature written well-nigh Korean civil process.^[12] The primary body of law on ceremonious procedure is the Korean Civil Procedure Act and the Korean Rules of Civil Procedure (KRCP). Another of import expanse is the Civil Execution Act first enacted in 2002 as a separate act. For special cases, there is the Family unit Litigation Human action for family law matters and the Bankruptcy and Rehabilitation Human action for bankruptcy and restructuring proceedings.

Enactment of the Korean Civil Procedure Act [edit]

After independence, the Japanese civil procedure constabulary remained in force until the Korean Civil Process Act (KCPA) was enacted on July 1, 1960. The KCPA has been amended 14 times with the most drastic change occurring in 2002. The 2002 KCPA emphasized the pretrial phase and the concentration of the trial for the sake of efficiency also as separating ceremonious execution from the KCPA.

Guiding principles [edit]

Article 1 of the KCPA stipulates that the court should strive to heighten fairness, speed, and efficiency in civil proceedings.

Continuing [edit]

Nether the Civil Act, a natural or a juristic person has a party standing. An association and a foundation other than a juristic person can take standing as a party if additional requirements are met.^[13] They are (1) there is a conclusion making trunk, (ii) representing organ that acts thereby creating and exercising and fulfilling the rights and duties of the arrangement, (3) assets carve up from the assets of its members.

Jurisdiction [edit]

The district courts along with their branch courts accept original jurisdiction over civil cases. A single judge presides over a case in controversies non exceeding 50 million won. Higher up that corporeality, a panel of three judges hears the case. Cases that are complex and difficult for a unmarried estimate to handle are handled by a three-judge panel as well. The specific rules are prescribed in the Regulation on the Subject area Matter Jurisdiction in Civil and Family unit Litigations.

The parties can also establish jurisdiction of a item courtroom past agreement in writing unless some other courtroom has an exclusive jurisdiction over the matter. If the defendant fails to heighten a timely jurisdictional challenge in its pleading during the pre-trial on the merits of the case, the defendant is accounted to have consented to the jurisdiction.^[14]

For cases of international graphic symbol, Korean private international law, also known as conflict of laws, determines the jurisdiction. A Korean court has jurisdiction when a party or a case in controversy has substantial human relationship with Korea.^[xv] In determining jurisdiction, the unique nature of international jurisdiction and the relevant clauses in Korean law are considered equally well.^[16]

Venue [edit]

There are general and special venues under Korean ceremonious procedure. The court at the defendant's domicile tin hear the claims.^[17] If the defendant's domicile is non known or does not exist, the court at the defendant'south residence can hear the claim. The KCPA too lists special venues in addition to general venues such as the workplace, where the obligation is performed, where the discipline matter is located, or where the tort occurred. If there are multiple venues, the plaintiff tin choose one of them to bring an action.

Litigation process [edit]

Filing a complaint [edit]

A civil action begins when a plaintiff files a complaint, which sets out the alleged facts and remedy sought, with the courtroom.^[18] A complaint must state the parties, legal representative if any, the remedy sought, and crusade of actions.^[19] The plaintiff can seek remedy such equally amercement, specific performance and injunctions. The iii types of deportment are functioning, declaratory judgment, and formation claims.

Performance claims [edit]

The action is to compel the defendant to perform or refrain from certain acts.

Declaratory claims [edit]

The action is to have the courtroom declare existence or absence of the legal relationship in controversy.

Formation claims [edit]

The activeness is to create or change a legal relationship past a court order.

Service of process [edit]

When a complaint is properly received by the court, the court serves the defendant with a duplicate of the complaint,^[xx] usually by certified postal service simply also by court officials or a marshall. If the defendant'due south accost cannot exist constitute, the court can order a public observe instead.^[21]

Dismissing a complaint [edit]

The plaintiff tin dismiss the case at any time before the accused makes his pleading on the merit.^[22] In such case, the defendant is accounted to have consented to dismissal if he makes no objection within two weeks later on the plaintiff moves to do so.

Pretrial period [edit]

The pretrial menstruum is to analyze disputed facts and legal issues. The parties substitution briefs and supporting documents through answers and counterclaims under the courtroom supervision. The defendant is required to file a written reply inside 30 days after the complaint is served.^[23] In response, the defendant can take, dispute, or remain silent nearly the allegations.

Judgment without a trial [edit]

If the accused accepts the claim or admits all the facts, the court can return a judgment without a trial. When the defendant fails to contest the complaints in a timely manner or remains silent, the court can regard it as credence or access as well.

Trial [edit]

When the pre-trial menstruum is over, the guess sets a date for the trial. The trial is public and done orally. As there is no jury in civil litigation, all trials are demote trials. The parties tin can represent pro se and the courtroom can appoint a public defender for in forma pauperis.

Rules of show [edit]

The contested facts demand to be proven by evidence, while facts admitted by the opponent do not require show. The gauge can simply rule based on the bear witness presented and cannot use his or her personal knowledge to rule on the case. The court has very wide discretion in assessing relevance and materiality of testify, and virtually any type of show can exist admitted to the court. Typically, documentary evidence tends to have higher probative value than oral testimony.

Witnesses [edit]

Unlike other countries, the party to the litigation cannot be a witness. A witness has the privilege not to testify if he or she has a justification. KCPA Article 315(one) lists attorneys, patent attorneys, notaries public, certified public accountants, doctors, pharmacists, and priests to have such privilege.

The witness is first examined by ane party and and so cross-examined by the opposing party, followed by re-straight and re-cantankerous. The approximate can likewise ask questions of the witnesses during the examination. Leading questions are permitted merely on cross-examination and non others.^[24]

Verdict [edit]

After the decision of the trial, the gauge renders a judgment based on the evidence presented and law. The opinion of the court follows a highly structured format of (1) parties and legal representatives, crusade of activeness, date when the pleadings were done, the court. Unlike the opinions of the mutual law jurisdictions, the Korean judicial opinions tend to be cursory and often lack detailed reasoning for the conclusion.

Appeal [edit]

When the determination is given, the losing party can appeal to the courtroom above within 14 days later on the judgment is served to that party or else the judgment becomes final. The other political party tin cross entreatment every bit well. The court of appeals can examine the facts as well equally law and the parties can submit new allegations and pieces of prove.

After the appellate court makes a decision, the parties can appeal to the Supreme Court. The Supreme Court hears a large number of appeal cases (most 8,859 in 2006) and sometimes rules on factual issues as well.

Res judicata [edit]

After the appeal procedure is over, the judgment is finalized and is binding.

Enforcement [edit]

The enforcement of civil judgments is dictated by the Civil Execution Act. Judgments rendered by a foreign court can be enforced.^[25]

International laws and treaties [edit]

Treaties ratified by the South korea have the aforementioned effect equally domestic law, equally stated in Article six of the Constitution. The Constitution gives the power to brand treaties to the President, while the National Associates has the right to consent to treaties made by the President. South korea is currently party to several international agreements and organizations.

Constitutional arbitrament [edit]

This section is empty. You tin can help by adding to it. (March 2020)

Authoritative police [edit]

This section is empty. You lot can assistance by adding to it. (November 2012)

Gallery [edit]

Busan District Courtroom, same period

References [edit]

^ ^a ^b "헌법재판소". Archived from the original on 2005-03-08.
^ Lisa Blomgren Bingham, Sun Woo Lee and Won Kyung Chang (2007), Participatory Governance in South korea: Legal Infrastructure, Economical Development, and Dispute Resolution, 19 Pac. McGeorge Global Bus. and Dev. L.J. 375, 381-2
^ http://world wide web.scourt.get.kr/scourt_en/jdc_info
^ "The Constitution of the Republic of Korea". Articles 10–39. Archived from the original on 2006-07-28. Retrieved 2006-07-28 – via Bern University.
^ Goedde, Patricia (2009). "From Dissidents to Institution-Builders: The Transformation of Public Involvement Lawyers in South Korea". East Asia Law Review. 4. Archived from the original on 2011-03-25.
^ Cho, Kuk. "Korean Criminal Police force: Moralist Prima Ratio for Social Control". Journal of Korean Law, Vol. 1, No. one, 2001.
^ The Constitution of the Republic of Korea, Commodity 12.
^ Yong Chul Park, "Does it Matter Who Wrote It?: the Admissibility of Doubtable Interrogation Tape Written by Prosecutors in Korea", Journal of Korean Law, Volume six, Number ii, 181 (2007)
^ Korean Criminal Process Deed Article 312
^ "Supreme Prosecutors' Office Democracy of Korea > PROSECUTION SERVICE > Organization".
^ Ryan Y. Park, "The Globalization of the Jury Trial: Lessons and Insights from Korea", American Journal of Comparative Law, Summer 2010
^ Kuk Cho, Litigation in Korea, p. 2
^ KCPA Article 52
^ KCPA Article 30
^ Korean Private International Law Article ii(1)
^ Korean Private International Constabulary Commodity 2(2)
^ KCPA Article 2
^ KCPA Article 248
^ KCPA Article 249
^ KCPA Commodity 255(1)
^ KPCA Article 194
^ Article 266(2)
^ KCPA Article 256(one)
^ RCP Article 91(2), 92(2)
^ Sung Hoon Lee (2006), "Foreign Judgment Recognition and Enforcement Arrangement of Korea", Periodical of Korean Law 6:ane, 110