Decision of the Korean Constitutional Court of Nonconformity of Statute with the Constitution and the Subsequent National Assembly Legislative Process in Korea’s Constitutional Democracy

( Woo-young Rhee ) 서울대학교 아시아태평양법연구소(구 서울대학교 법학연구소) 2021 Journal of Korean Law Vol.20 No.1

The decision of nonconformity of the statute with the Constitution is a type of decision rendered by the Korean Constitutional Court, notwithstanding the silence of the Constitutional Court Act of Korea pertaining to such type of decision or the ground therefor. The Constitutional Court, by way of nonconformity decision, holds that the statutory provision at issue is not in conformity with the Constitution, without directly holding that the statutory provision is outright unconstitutional to become null and void upon issuance of the decision, out of deference to the lawmaking authority of National Assembly and, in certain situations, for the stability of law in its application. The holding of nonconformity decision of the Korean Constitutional Court varies in that the Constitutional Court either simply declares the nonconformity of the statutory provision with the Constitution, or renders the statutory provision at issue to be tentatively applicable through a designated date then lose effect, or yet stays the application of the statutory provision through a designated date with the possibility of its losing effect on a specific date should National Assembly fail to revise the statute by the time limit. The Korean Constitutional Court’s nonconformity decision likewise urges National Assembly to revise the relevant statute in accordance with its holding and the stated grounds therefor often with designated time limit, shifting the burden to timely remove the declared unconstitutionality of the statute onto National Assembly. Whether and to which extent such recommendation or urging by the Constitutional Court to revise the statute binds National Assembly has yet to be determined and established, with such ensuing normative and institutional issues as the nonconformity decision’s binding effect and retroactivity. A particularly complex challenge is observed in the case of National Assembly’s failure to meet the designated time limit, although National Assembly has revised the relevant statutes in over 95% of such instances through the end of the session of the 20^th National Assembly (2016-2020). The Korean Constitutional Court tends to render nonconformity decision primarily for the violation of constitutional principle of equality and for the failure to satisfy the individual constitutional provision’s mandate or delegation to enact a statute, when the Constitutional Court deems that nonconformity decision is appropriate considering the totality of the relevant circumstances from the balancing point of view that the immediate nullification and removal of the statutory provision might cause “legal vacuum” leading to instability and undue confusion among relevant parties and the public, or that a decision of simple unconstitutionality might not appropriately or effectively remedy the unconstitutionality due to the unclear distinction between constitutionality and unconstitutionality. The Constitutional Court in nonconformity decision defers to National Assembly’s lawmaking authority for further legislative alternatives in removing the unconstitutionality. The normative legislative function assumed by the Constitutional Court in its adjudication over the constitutionality of statute requests in turn that the Constitutional Court and its adjudication secure democratic legitimacy as well as constitutional legitimacy in its organization, function, procedure and substantive outcome. The Constitutional Court and National Assembly implement the Constitution of Korea as such in Korea’s constitutional democracy by assuming respective functions in larger legislative process providing for and regulating the rights and obligations of the constituents. As such, nonconformity decision concerns the issue of and for the separation of powers in Korea’s Constitution and constitutional democracy. In this vein, suggestions can be made both on normative and institutional planes to substantiate the “constitutional dialogues” or interactions between Korea’s constitutional institutions for more substantiated and coordinated implementation of the Constitution along this process. Certain core relevant concepts and procedures such as the binding effect of nonconformity decision, the retroactive effect of nonconformity decision, the effect of the statute held to be not in conformity with the Constitution should National Assembly fail to meet the time limit for legislative revision as designated by the Constitutional Court in nonconformity decision, and fine-tuning of the ensuing National Assembly legislative process for statutory revision recommended by the Constitutional Court’s nonconformity decision to introduce, for example, a separate calendar with automatically and regularly held expedited proceedings should be analyzed and integrated into the process of institutional interactions in a concerted way, for the implementation of the Constitution of Korea ultimately for more substantiated protection of constitutional rights.

The Supreme Court Decision on the Liability of Japanese Company for Forced Labor during the Japanese Colonial Era and Its Implications

( Kye Joung Lee ) 서울대학교 아시아태평양법연구소(구 서울대학교 법학연구소) 2019 Journal of Korean Law Vol.18 No.2

The Korean Supreme Court issued an en banc decision (“the Decision at Issue”) on the liability of a Japanese company for forcing the plaintiff into labor during World War II and a majority opinion affirmed the liability of the Japanese company. The main issue of the Decision at Issue was whether the Agreement on the Settlement of Problems concerning Property and Claims and on Economic Co-operation between Japan and ROK (“the Claims Agreement”) addressed the right to damages for mental harm caused by forced labor. This article analyzes the Decision at Issue from the perspective of international customary rules. Article 31 and 32 of the Vienna Convention on the Law of Treaties (“the Vienna Convention”) which stipulated rules concerning interpretation of treaties, have been considered to reflect international customary rules. As the Vienna Convention provided, a treaty should be interpreted in accordance with the ordinary meaning of the terms of the treaty in the light of its purpose and in their context together with subsequent practices. The Claims Agreement was for solving civil matter of property and obligation between the two countries rather than for addressing the matter arising from wrongdoing during Japanese colonial occupation. This succinctly explains why terms like “reparation” or “wrongdoing during the Japanese rule” are absent from the Claims Agreement unlike other treaties between Japan and other injured nations that were provided reparations. The Claims Agreement provided that the problems concerning the “claims” are settled completely. However, the Claims Agreement did not define “claim”. Claim can be construed as “diplomatic protection” based on the context, inferred by para. 2(h) of the Agreed Minutes, and subsequent practices on the side of Japan. The scope of the Claims Agreement, which was signed when Japan denied the illegality of its colonial rule over Korea, is inherently limited. This article also offers a rebuttal to the argument that the Claims Agreement is a lump sum agreement. In addition, this article submits the notion that Eight Items did not cover the plaintiffs’ rights on the grounds of provisions of the National Service Draft Ordinance and negotiation process for concluding the Claims Agreement. In sum, the legal logic of the Decision at Issue can be said to be acceptable and founded upon firm argumentation. The Decision at Issue has significant implications: constitutional value can play a pivotal role in interpretation of treaties and the interpretation of treaties should be made in deference to the fundamental ideology of protection of human rights.

Notable Cases on Criminal Law

( Jinyoung Hong ) 서울대학교 아시아태평양법연구소(구 서울대학교 법학연구소) 2019 Journal of Korean Law Vol.18 No.2

Fair Government at Home and Abroad: Improving Korea’s Foreign Bribery Prevention Act

( Kwon-yong Jin ) 서울대학교 아시아태평양법연구소(구 서울대학교 법학연구소) 2019 Journal of Korean Law Vol.18 No.2

The globalization of business transactions in recent years has drawn greater attention to the problem of foreign bribery. Like domestic bribery, bribery of foreign public officials can lead to a number of adverse consequences, including loss of economic efficiency and government revenue, diminished public trust, and a culture of corruption. To prevent such adverse consequences, anti-foreign bribery statutes, such as the United States’ Foreign Corrupt Practices Act, the Organisation for Economic Co-operation and Development’s Anti-Bribery Convention, and Korea’s Foreign Bribery Prevention Act, are crucial in ensuring the fair and impartial exercise of government functions around the world. This Article thus examines Korea’s legal regime against outbound foreign bribery, the Foreign Bribery Prevention Act (FBPA). In particular, this Article notes three major areas of concern in the FBPA. First, the definition of a “foreign public official” is too vague and unpredictable, particularly where state-owned enterprises are concerned. Second, a statutory defect in the FBPA means that foreign bribery involving a third-party beneficiary is technically not prohibited by the FBPA. Third, the authorized punishment under the FBPA can be insufficient. In order to improve the effectiveness of the FBPA, this Article proposes a set of legislative solutions, including utilizing state control and preferential treatment as a proxy for the exercise of a public function, expanding the scope of the anti-bribery provision to cover bribery with a third-party beneficiary, and authorizing debarment for FBPA violators.

Trusts and Choice of Law in South Korea: The Case for Adopting the Hague Trusts Convention

( Ying Khai Liew ) 서울대학교 아시아태평양법연구소(구 서울대학교 법학연구소) 2021 Journal of Korean Law Vol.20 No.1

Despite having recognised the trust for 60 years now, South Korean law does not contain specific choice of law rules applicable to trusts. This is a regrettable state of affairs in our increasingly globalised world, where incidences of cross-border trust disputes will only be on the rise. This paper argues that the lack of a dedicated set of choice of law rules relating to trusts causes much confusion and uncertainty, not only as to how South Korean courts would characterise a trust dispute and the inconsistent connecting factors which would apply, but also in relation to the scope of the applicable choice of law rules (whichever they may be) and the special difficulties raised by a breach of trust claim. All these difficulties derogate from a proper recognition of the trust as a distinctive legal device, and fail properly to protect the autonomy and legitimate expectations of the parties. The paper suggests that these problems would easily fall away if the South Korean legislature adopts the Hague Trusts Convention.

State Compensation of State Crime under the Yushin Regime

( Sangwon Yoon ),( Hyeyeon Yoon ) 서울대학교 아시아태평양법연구소(구 서울대학교 법학연구소) 2021 Journal of Korean Law Vol.20 No.1

Strengthening Clinical Legal Education in Japan: What Should Be Done in the Second Stage of the Law School System?

( Shigeo Miyagawa ) 서울대학교 아시아태평양법연구소(구 서울대학교 법학연구소) 2021 Journal of Korean Law Vol.20 No.1

Clinical legal education started in Japan together with the introduction of the law school system in 2004. This is an experiential pedagogy to “bridge theory and practice” at law schools throughout Japan. It became a prevalent teaching method to integrate knowledge in law, skills to practice law, and professional responsibility in the first stage of the law school system. As the law school system faced vexing difficulties, two important changes were made in law school system in 2020. One is the introduction of the “3+2” program in the legal education process, namely, making it possible to graduate from the undergraduate law program in three years instead of four and to finish the professional law school in two years instead of three. The other change is to make law students eligible to take the national bar examination before their law school graduation. With these two changes, the law school system entered the second stage. Clinical legal education needs to adapt to these changes. This author proposes three approaches to the “3+2” program: First is early exposure of undergraduate law students to law practice. Second is the incorporation of clinical components in fundamental law courses in the undergraduate law curriculum. And third is the intensive use of legal clinic courses in the final term of the law school curriculum after the bar examination. Legal clinics occupy an essential locus in Japanese legal education to develop lawyers to buttress the rule of law.

The Status Quo and Institutional Challenges Faced by China’s Clinical Legal Education

( Xiangshun Ding ) 서울대학교 아시아태평양법연구소(구 서울대학교 법학연구소) 2021 Journal of Korean Law Vol.20 No.1

On December 13, 2000, the Committee of Chinese Clinical Legal Educators under China Association for Legal Education (CCCLE), a national organization with 204 member schools, celebrated the 20th anniversary of the introduction of the clinical legal education (CLE) program in China. CLE, which was born in the early 20th century in the U.S. and became widespread in the early 1960s and 1970s, is rooted in the Chinese legal-education system. Both Japan and South Korea adopted CLE in the beginning of the 21st century, since the establishment of the new law school systems. This article conducts a comparative analysis of the CLE in China, Japan, and South Korea after discussing the incentives for adopting CLE and the status quo of CLE in China.

A Blind Side of Security Exceptions?: New Legal Complexities of the “Refusal to Furnish Information” Clause

( Jaemin Lee ) 서울대학교 아시아태평양법연구소(구 서울대학교 법학연구소) 2021 Journal of Korean Law Vol.20 No.1

National security exceptions clauses in treaties have been receiving heightened attention recently as states are increasingly referring to these provisions to deviate from existing treaty obligations. As disputes increase, jurisprudence on national security exceptions is also being developed and accumulated. States are looking at national security exceptions with keen interest and from a new perspective. This phenomenon is being observed in a variety of treaties. There is a particular provision in national security exceptions clauses that has been sidelined mostly and neglected sometimes in these discussions. This provision is what is called the “refusal to furnish information” clause. It uses broad language without much qualifications or conditions. The level of discretion and leeway accorded to an invoking state is arguably much higher than that granted by other provisions in national security exceptions. As such, this provision can permit a state to refuse to provide any information to any entity in any proceeding. This means this provision could effectively nullify other obligations in the already controversial national security exceptions clauses as well as other ordinary provisions of a treaty. Notably, its invocation could even derail dispute settlement proceedings at international courts. A review of the drafting history of this provision indicates that careful thought has not necessarily been given to its introduction and wording. Nor has there been sufficient debate to date to clarify and tame this provision. The robust attention given to national security exceptions these days indicates that the “refusal to furnish information” provision will be invoked more actively, considering its usefulness in blocking any discussion relating to a treaty. Existing and future treaties need to revisit this provision to ensure it does not become a source of conflict or a carte blanche for a treaty violation.

A Legislative Suggestion on an Heir’s Qualified Acceptance of Succession, Separation of Inherited Property, and Bankruptcy Procedure for Inherited Property

( Joon-kyu Choi ) 서울대학교 아시아태평양법연구소(구 서울대학교 법학연구소) 2021 Journal of Korean Law Vol.20 No.1

A legislative suggestion on an heir’s qualified acceptance of succession, separation of inherited property, and bankruptcy procedure for inherited property. In this article, I review the legislation on an heir’s qualified acceptance of succession, separation of inherited property, bankruptcy procedure for inherited property. The current Korean system has the following problems. (i) It is difficult for the heir to identify the inheritance debt before choosing whether to inherit and how to inherit. (ii) There are not so many options for an heir to exercise. (iii) The separation of the inherited property and the heir’s property is not symmetrical and thorough. (iv) The liquidation of inherited property according to the heir’s qualified acceptance of succession has several problems, in terms of both efficiency and equity. To solve these problems, I suggest the following amendments: First, a public inventory system should be created to help the heir identify the inheritance debt before choosing the inheritance form. This system can also increase the heir’s options. Second, the heir’s qualified acceptance of succession and separation of inherited property should be integrated to create a new liquidation system for inherited property, in which a third-party liquidator separates and liquidates only the inherited property when it is not over-indebted. Third, if the inherited property is over-indebted, the liquidation process should be unified into the bankruptcy procedure. Fourth, the deficiencies in the current bankruptcy procedure for inherited property should be improved by giving the creditors of the heir the right to file for bankruptcy, establishing a simple and inexpensive bankruptcy procedure, and recognizing the effect of separation of two properties (the inherited property and the heir’s own property) fully and automatically. Fifth, during the period in which the heir can exercise his or her option for the inheritance, the inheritance creditors should be prohibited from acquiring the execution title against the heir, and the execution of the heir’s creditors against the inherited property should also be prohibited. A preservative measure for inheritance creditors and the heir’s creditors, however, should be allowed.