Exchanges between South and North Korea have been explosively increasing since the 'Sunshine Policy' of 'former President Kim Dae-jung`s administration.' It seems that the enlargement of personal and material exchanges in relation to the North Korea's...
Exchanges between South and North Korea have been explosively increasing since the 'Sunshine Policy' of 'former President Kim Dae-jung`s administration.' It seems that the enlargement of personal and material exchanges in relation to the North Korea's district development, especially the Gaesong Industrial District and the Mount Geumgang Tourism District, would promote economical unification of the Korean peninsula and even narrow socio-cultural heterogeneity generated over the past 60 years since Korea divided. However, despite the external expansion of inter-Korean exchanges, changes of unification in political system represented as capitalism and socialism have not been detected yet. The approach for unification of system and the process between two Koreas would face many difficulties and conflicts depending on changes of the international situation for a considerable period of time.
From this point of view, the course of development and expansion of the Gaesong Industrial District is very suggestive when it comes to economical unification of the Korean peninsula. Currently, even though the North Korea regards survival of the regime as its supreme task, it has not concealed the strong desire of economic development which has lagged behind due to inefficiency that the planned economy and one-party dictatorship of the Communist Party have made and the economic blockade against the North Korea resulted from nuclear development. In particular, following the enforcement of the so-called '2002 July 1 Economic Management Improvement Measures,' it seems obvious that the North has begun to accept the capitalist economic system without volition.
The Gaesong Industrial District could be regarded as a model of economic unification engendered by the North's desire of developing its economy because of the North Korea's changes in economic system and the need of the South's small and medium enterprises finding a means of escape because they have reached their limits in markets of the South. Namely, the Gaesong Industrial District may be a unique type of testing ground where capital and technology represented as capitalism and labor subsumed in socialism have been combined. Five years have passed since the first step of the Gaesong Industrial District in June 2003.
The foundation construction of a land of one million pyeong was completed in October 2007. Plan of 182 enterprises joining the district development as well as 15 enterprises which had already moved in it was completed. Further more, approximately 450 enterprises will have moved in the District by the end of 2010. It is expected that more than 4,000 South Korean residents will reside in the Gaesong Industrial District and 100,000 North Korean labors will work for the South Korean companies in the District. When this time comes, it would be anticipated that criminal cases might take place between South Korean residents in the District and North Korean labors.
Security and safety of South Korean residents can be a crucial issue in case if the North judiciary force intervenes in the process of handling criminal cases because the Gaesong Industrial District is still under the criminal sovereignty of the North. Out of this kind of necessity, on January 29th, 2004, 'Written Agreement on Entrance and Stay of the Gaesong Industrial District and the Mount Geumgang Tourism District' was adopted by the governments of South and North Korea. It has been in force since August 2005. Article 10 of the Agreement consisting of 6 clauses under 'Personal Safety and Security' would be a comprehensive norm.
Yet, personal safety and security of the South Korean residents had been very unstable because it was just a pattern of political document or fragmentary agreement until the Agreement was made. As elaborately demonstrated in chapter 3 concerning the last personal and safety measures such as 'Inter-Korean Basic Agreement' and 'the Mount Geumgang Tourism Business,' etc, personal safety of the Korean residents was not a substandardized lawnorm but mainly just a pattern of political document or fragmentary agreement, which could leave the Korean residents vulnerable to manipulation by the North.
Based on this kind of situational awareness, this study covers some possible measures on personal safety and security of the Korean residents in the Gaesong Industrial District that can be classified into three major categories.
First, concerning those measures, issues of the Inter-Korean criminal jurisdictions are dealt with in order to demonstrate mediation measures on the collision between the South criminal law and the North's. If it is generally understood that the inter-Korean relation can be defined as 'a special relation formed tentatively in the process of orienting unification rather than an inter-national relation,' the unilateral application of the two criminal jurisdictions might impede the development of inter-Korea relations. In addition, the unilateral application of criminal law could cause a problem in terms of the protection of human rights because law ideology and system between two Koreas are quite different from each other.
The empirical problems arising from the unilateral application of the criminal law are reviewed based on the principles application of the international criminal law that could be a problem in the criminal jurisdiction and the specific examples in the nations that had experiences of division. After that, it is demonstrated that it would be possible for provisions of international criminal law embedded in the South Korea's criminal law to be analogically applied to the criminal acts committed by the South Korean residents within the Gaesong Industrial District.
Furthermore, under 'Written Agreement on Entrance and Stay of the Gaesong Industrial District and the Mount Geumgang Tourism District,' which can be directly applied to the South Korean residents in the District, some possible ways are suggested and demonstrated when safety insecurity could happen in the process of 'investigation' and 'deportation' by the North and when some countermeasures are needed in case that criminal acts by the South Korean residents take place.
Second, the process and method of mutual legal assistance in criminal matters between West Germany and East Germany is reviewed and a special case of mutual legal assistance in criminal matters between China and Taiwan is also investigated. Mutual legal assistance in criminal matters between related authorities in West and East Germany has been widely understood because the same criminal law had been applied before Germany was divided.
Of course, requests for the mutual legal assistance in criminal matters by the East concerning political offenders or military-related crimes were often rejected by the principles of a law-governed country of the West. So the mutual assistance between the West and the East was made in the considerably limited scope due to the restraints of general principles of law in the West. Before the unification, the East treated the mutual legal assistance with the West in such a way that it had done with a foreign nation.
However, after unification, the way of treatment with the West gradually changed and finally they had the 'Legal Experts Conference' between the two Germanies in February 1990 and signed the agreement of the mutual legal assistance in criminal matters which consisted of 10 clauses.
China made a premise that Taiwan has legal realms under a “one nation, two system” paradigm and has acknowledged Taiwan's realistic criminal jurisdiction and judicial authority. After that, the need of the mutual assistance in criminal matters between China and Taiwan was raised as personal exchanges had increased. China and Taiwan resolved the matter not by the official treaty between them but by providing evidence, documents, and criminal materials through "Cross-Strait Relations between China and Taiwan Association" by China's semi-governmental management and "Taiwan's Cross-Strait Interchange Fund Association."
Moreover, China and Taiwan got the bilateral agreement between the two countries and experience to extradite illegal residents, criminal suspects and the accused at a designated place where Red Cross Societies of China and Taiwan agreed to.
Third, some possible methods for the mutual legal assistance in criminal matters in the Gaesong Industrial District are discussed from the viewpoints of West-East Germany and/or China-Taiwan relations. The situation that South and North Korea face may be quite different from two cases above.
To begin with, the possibility of the mutual legal assistance in criminal matters between the South and North has been threatened significantly from the base because the criminal law of the North which is supposed to be initially applied is undemocratic, the parade of North Korean defectors has been increasing because of food shortages and politics and law represented as the 'juche ideology' are vague. It will be very hard to think of the mutual legal assistance in a broad sense if it is stipulated a crime in the criminal law of the North, but not in the South such as the case of helping North Korean defectors under present situation.
Yet, as shown in the instances of the mutual legal assistance between China and Taiwan, the matter of providing basic evidence and criminal materials would be resolved by making relevant regulations when signing an attached agreement of 'the Written Agreement on Entrance and Stay of the Gaesong Industrial District and the Mount Geumgang Tourism District.' The mutual legal assistance in a wide sense such as 'extradition' and 'being under sentence' will be possible when a remarkable progress has been made between the two Koreas.
Consequently, the Gaesong Industrial District is the area under the sovereignty of the North and criminal cases may be treated by the North criminal law. The mutual legal assistance in criminal matters may be just made in the way that the North expels a South Korean criminal into the South rather than executes criminal jurisdiction and judiciary bodies of the South investigate and indict the criminal, after which the South reports the verdict of the trial to the North.
It is still doubtful that this pattern of mutual assistance could be defined as 'the mutual legal assistance in a narrow sense' because the North has refused to offer basic criminal materials such as statement made by a judiciary body of the North. Mutual assistance in a wider sense would be possible if the improvement for democratic change of the North Korean regime and revision of the North's criminal law complied with a constitutional government can be made. However, under the current circumstance, it may be hard to argue a complete type of mutual assistance and further researches for this matter will be strongly needed, depending on the degree of development of the inter-Korean relations.
In short, 'Written Agreement on Entrance and Stay of the Gaesong Industrial District and the Mount Geumgang Tourism District' may give us the only and practical reference for personal security and safety measure for the South Korean residents in the district under the current relation between the South and the North. Namely, according to the provisions of Articles 12, in the event that a South Korean commits a crime, the mutual assistance in a narrow sense such as sending evidence and providing basic criminal materials in accordance with 'inter-Korean intelligence cooperation obligation' and 'entrance and stay joint committee' will have to be done.
In order to reach this goal, agreement on specific personal security and safety measures for the South Koreans residing in the district and the mutual assistance in criminal matters in a narrow sense should be induced by signing an attached agreement. Further researches on a method of the mutual assistance through 'the Gaesong Industrial District Management Committee', the only joint legal entity, will also be expected according to the degree of development of the inter-Korean relations.