The Benefit and Limitations of No-Fault Divorce in Korea

보해니안 조선대학교 법학연구원 2015 法學論叢 Vol.22 No.2

Korea has enjoyed an extended period of “compressed development” in recent decades, both causing and responding to an astounding pace of social and economic change. Relatively recent liberalization of South Korea’s laws by well-meaning legislators inspired by a heroic women’s movement has begun to restore the human rights of family members, addressing the reality that patriarchal sex roles imported into Korean society from foreign lands have negatively impacted the normative excellence, the core values and overall symmetry of Confucianism, leading to loss of dignity, marital breakdown and disruption of the family. Some blame lenient divorce laws for the breakup of the traditional Korean family, but a fundamental connection between divorce laws and rising divorce rates has never been validated. In Korea, an innocent spouse has a legal right to divorce an at-fault spouse that has committed “unchastity” or other enumerated wrongs, but Korean family law also accepts divorce by agreement of the married couple without allegation of fault. This article reviews a number of strengths and limitations in Korean divorce law, and concludes that the core function of family law is not to maintain morally-transient, gender-loaded customary values or to increase the couple’s acrimony and permanently fixate them in an uncooperative state by forcing them to humiliate each other in court on fault-based grounds or to prevent their divorce if they will not publicly agree that it is over, but to give each of them a charge and an opportunity to reflect upon their decision; after which, if one or both of them have their mind set on divorce, to presume that breakdown has occurred and allow them to move on, while vehemently protecting the welfare of the vulnerable spouse and innocent children. Barring an at-fault spouse from obtaining a divorce is contradictory to the reality of marital breakdown, particularly when both parties are at fault. As articulated by one insightful scholar, if fault by one party justifies divorce because it proves marital breakdown, it is even more reasonable to allow divorce when both spouses hold the marriage vow in disdain by committing wrongful acts, thereby doubling the chances that reconciliation will fail.

Low-Level Bureaucratic Corruption in Korea, the Promise of the Kim Young-Ran Act

보해니안 조선대학교 법학연구원 2016 法學論叢 Vol.23 No.3

On September 28, 2016, South Korea's newly adopted, Improper Solicitation and Graft Act, commonly referred to as the Kim Young-Ran Act became effective. The anti-bribery law not only targets corruption among public officials, it also broadly includes teachers, journalists and even spouses of officials under its restrictive rubric. We stand too close to what may be a monumental leap forward in social justice in Korea to draw on empirical evidence and confidently analyze its effectiveness. This paper is a brief review of a number of noneconomic and economic factors that may apply to assess the anti-corruption campaign, calling for patience as its significance is determined, not only as a strategy to reduce the prevalence of corruption at high levels, which may already be at an all-time low in Korea's history of democratization, but also to educate and further develop the rule of law among the rank and file of the citizenry by minimizing low-level bureaucratic nepotism. The author argues that the Act should help open up Korea's close-knitcultural associations, alleviate insider versus outsider mentality within them and help encourage empathy and universalism while maintaining and enhancing the intrinsic altruismand camaraderie of Korea's traditional Confucian networks. In addition, the paper identifies certain market forces which, as data becomes available, may be factored into law and economics studies that assess the Kim Young-Ran Act and suggest policies that may further effectuate its promising deterrence of payoffs.

Responsible Behavior after Hobby Lobby, An Open Sermon to Corporate Persons

보해니안 조선대학교 법학연구원 2014 法學論叢 Vol.21 No.3

In Burwell v. Hobby Lobby, decided June of 2014, the Supreme Court of the United States announced that business entities, including certain for-profit corporations, are capable of expressing religious beliefs, potentially allowing them to avoid the operation of federal laws of general applicably that they sincerely find inconsistent with such beliefs. A host of observers and scholars are appalled that corporations have garnered parity of rights with natural persons, and they warn that personalization has made possible for corporations to avoid the responsibilities of good citizenship and ultimately to assert their “Declaration of Independence” from the authority of the people. Government regulation of corporations have manifestly failed, and what is needed now is to move away from the restraint of the corporate entity, which is of dubious value, and place the blame squarely where it lies, within the human condition. The dualistic nature of humans is deterministic of the output of human invention, and it may be that corporations are more rational and more capable than persons in doing good. Rather than being subject to additional prohibitions to further tie their hands, corporate managers must be empowered to put corporate financial resources into good use. It is time to abandon the purely economic discretionary model of corporate decision making and the shareholder primacy model of corporate management and to adopt models which are more inclusive of the interests of the many stakeholders of the modern corporation, including employees, consumers and communities. This paper suggests that Hobby Lobby may be a testament to human ingenuity and an outstanding milestone in the long-anticipated fulfillment of the prophetic goal of corporation law, provided that along with its emancipation, the corporation is empowered to moderate its new and erstwhile acquired rights with the dictates of good citizenship and ethical behavior in the form of corporate responsibility.

Isolating Bullying in Korean Schools for Whole-School Action, Education in the Ethos of Ethics and Empathy

보해니안 조선대학교 법학연구원 2013 法學論叢 Vol.20 No.3

학교관련 폭력인 또래괴롭힘과 피해자괴롭히기는 세계적인 추세인데 청소년 자살과 기타 유해한 영향을 포함하여 가해자들과 그 집단들, 피해자들과 그 또래들, 그리고 학업환경에 매우 부정적인 결과를 낳고 있다. 한국과 미국에서 학교폭력과 또래괴롭힘의 방지는 국가정책 혁신의 주요 대상이다. 한국의 학교폭력예방 및 대책에 관한 법률은 한국의 좋은 입법의도를 가진 입법자들의 심오하고 고귀한 노력들을 계속해서 늘어가고 있는 학교폭력에 관한 지식과 경험적 사회적 데이터의 총체와 더 잘 결합시키기 위해서 추가적이 개정이 필요하다. 한국의 학교폭력대책법의 “학교폭력”과 “또래괴롭힘”의 정의는 한국에서 가장 널리 퍼져있는 또래괴롭힘의 형태인 사회적 배척이나 집단에서의 따돌림에 대해 거의 대처하고 있지 못하며, 또래괴롭힘의 가해자 측에 가해의도를 요구하지도 않으며, 가해자의 위법행위에 어떤 다른 주관적 요소도 요구하지 않고, 사실상의 정신적 그리고 신체적 침해를 입증할 부담을 효과적으로 피해자에게 전환하지도 않고 있다. 한국의 학교폭력대책법은 한국에서의 또래괴롭힘의 복잡한 집단적 역동성을 반영하지 못하고 있다. 또한 학교폭력대책법은 학부모들과 학생들이 정책의 형성에 있어 의미 있는 의견개진을 할 수 있는 권리가 있다는 점에 대해 명확히 규정하고 있지 있다. 한국의 학교폭력대책법은 ①학교행정담당자들이 가해자 그룹에 의한 사회적 배척과 집단적 따돌림에 초점을 맞추고 ②정책형성 과정에서 학부모와 학생들이 의미 있는 참여를 할 수 있도록 조정하고 ③한국의 또래괴롭힘에 대한 정책적 대응을 사건중심적, 사후대응식이며 처벌적인 것으로부터 지속적이며, 전체적이고, 선제적이며, 인권 페러다임으로 전환할 수 있도록 개정이 필요하다. 이러한 변화는 한국의 학교폭력대책법이 동법의 목적과 박근혜 대통령의 “현재의 경쟁에 기초한 교육에서 학생들이 훌륭한 인품과 창의성을 형성할 수 있도록 돕는데 초점을 맞추는 것으로 근본적으로 변화함”으로써 한국에서의 교육의 정서의 대대적 변화에 대한 비전을 가진 요청에 부응하기 시작하는 것에 도움을 줄 것이다.

Intrafamily Child Sexual Abuse in Korea, Out of Sight, Out of Mind

보해니안 조선대학교 법학연구원 2014 法學論叢 Vol.21 No.1

In the last decade, child sexual abuse in Korea has begun to emerge from hiding via media attention to a number of high profile cases of violence against minors, with headlines focusing public attention on horrific sexual crimes committed by strangers against female children. Incidents of kidnapping and sexual violence against children outrage the public and dramatize the challenge that this intransigent problem presents to the diligent members of the Korea National Assembly who continue to toughen up legal measures to increase maximum sentencing limits, to increase the period that a convicted pedophile may be required to wear an ankle bracelet tracking device, to require the public disclosure of the names and partial addresses of certain sex offenders, and to enact a law allowing judges to order chemical castration of high risk offenders to help prevent recidivism. Although these governmental policies are primarily focused on preventing repeat crimes by sex offenders who are strangers to their victims, empirical studies of data from counseling centers suggests that the greater majority of child victims in Korea may be subjects of intrafamily sexual abuse. The author recommends that Korea’s criminal statutes be amended in line with the developing American trend to (1)specifically prohibit intrafamily sexual abuse of children and juveniles by a parent, caretaker or adult household member in a position of authority or control over the child (2)specifically target offenders that are parents and other persons in position of trust and authority over the child to receive enhanced punishment for sexually assaulting the child (3)specifically criminalize the act of a parent, or guardian or other person legally charged with the care of a child who deserts a child or otherwise entrusts the child to someone knowing that the child is in danger of sexual abuse or knowing that the person the child is entrusted to had previous sexual contact with the child; (4)adjust the statute of limitations for these crimes in a manner necessary to provide recourse for adults whose repressed memories of experiences of child abuse are restored by psychiatric treatment; and (5) provide greater guidance to prosecutors and judges, based on sound empirical evidence and the advice of experts, concerning whether to recommend separation of the offender from the child’s home.

Economic Democratization in Korea and Governance from a Canadian Versus a U.S. Corporate Law Perspective

보해니안 조선대학교 법학연구원 2017 法學論叢 Vol.24 No.1

In Korea series of major political and economic crises reinforce the common perception that public and private sector interests are intertwined at the highest levels of decision-making power. A main thread of governance reform discourse centers around the idealism of “economic democratization” based on what may be an unfortunate parody of the model dominating U.S. corporate law. Economic democratization should not be limited to adjusting shareholder rights and powers, and the two major theories of corporate law in the United States, the prevalent principal-agent model, supporting shareholder primacy, and the alternative team production model, proposing to empower directors to balance the interests of all residual constituents, do not adequately describe the situation in Korea. This paper proposes instead that greater scholarship be directed to Canadian corporate law, such as the theories that support the holding of ​BCE Inc. v. 1976 Debentureholders​, a 2008 opinion of the Supreme Court of Canada [BCE]. The decision in BCE helps to support the argument that, as with concentrated shareholders in Canada, the heads of Korea’s chaebols may help to reduce agency costs by discouraging directors or managers from expropriating wealth from shareholders. Under Korean law, a director has a duty of care of a good manager, which may be “functionally equivalent” to the fiduciary duty of directors, as confirmed by the BCE Court, to promote the firm’s economic interests, by acting equitably and fairly, in the best interests of the corporation viewed as a good corporate citizen. Minimizing conflicts of interests between controlling and other shareholders in Korean firms may require further development and enforcement of the directors’legal duty of care. However, the democratization of the Korean economy, enshrined in art.1 19-(2) of the Constitution of the Republic of South Korea, must be balanced against the constitutional provisions supporting the market economy, including art.119-(1) of the Constitution, requiring attention to the argument of scholars that art.119-(2) is subordinate to art.119-(1) of the Constitution.

Uniforms or Distracting Skirts in Public Schools: The Long & Short of It

보해니안 조선대학교 법학연구원 2012 法學論叢 Vol.19 No.1

In 2012 the Seoul Metropolitan Office of Education announced that it had adopted a controversial human rights ordinance that, among its other provisions, loosens up traditionally prevalent school uniform requirements by allowing students freedom to choose their own clothing styles. This article focuses on the comparative law of the United States to address whether schools may adopt dress codes or mandate school uniforms without violating the rights of students to self expression. Part II delineates the recent impetus for the proliferation of dress codes and school uniform policies in American public schools. Part III briefly outlines the foundations of constitutionally protected speech in that nation. Part IV presents the U.S. Supreme Court rulings that frame the First Amendment rights of students. Part V introduces a distinct constitutional framework that is emerging in a number of federal circuit courts, which framework is supportive of the authority of American school officials to adopt content-neutral dress codes and school uniform requirements. Part VI is an overview of the free speech rights of Students in Korea. While the distinction between speech in schools and outside of schools is less significant in Korean law, in the United States, minors are generally afforded the presumption of constitutional protection as “persons.” However, their rights to protected speech are not coextensive with the rights of adults outside of the school setting. The nature of the First Amendment rights of students in American elementary, middle and high schools is what is appropriate for “children in school.” School official are not obliged by the U.S. Constitution to surrender control of schools to public school students, and the degree of freedom that students enjoy must be weighed against the responsibility of teachers to manage schoolwork and to keep the learning environment free from undue disruption. In the United States school dress codes and mandatory school uniform requirements are generally considered content-neutral regulations of expressive conduct. A number of federal Circuit Courts have ruled that such school policies survive intermediate scrutiny in that they further important government interests such as promoting safety, focusing student attention on academics, eliminating dress differences that emphasize income disparity, and simplifying daily school preparation; that such governmental interests are unrelated to the suppression of student expression; and that any resulting incidental restrictions on First Amendment activities are no more than is necessary to facilitate the governmental interests. While some dress codes have been successfully challenged primarily for being vague and thus arbitrary, school uniforms have been highly successful and have survived legal challenges in the United States.

Why Criminal Libel Deserves Its Bad Reputation, and Why It Matters to the Republic of South Korea

보해니안 조선대학교 법학연구원 2014 法學論叢 Vol.21 No.2

Criminal defamation laws remain on the books in many countries including the United States and South Korea. In accordance with Korea’s Confucian culture, honor and dignity are explicitly protected by the Constitution. Although the strong historical preference of Koreans for criminal prosecution for libel has been moderated in recent years by a growth in the number of civil defamation actions, criminal libel prosecutions have resurged. The history of common law and statutory criminal libel laws and prosecutions in England and the United States lends support for the current judicial and scholarly disdain for the law of criminal libel, particularly since prosecutions are often used not to redress a serious public wrong, but to serve political and private ends. The author urges the honorable legislators of the great and progressive nation of Korea to revisit the question whether the crime of libel has become so indistinguishable from the law of civil libel in form and function as to justify its elimination, since criminal libel laws in the United States, Korea and around the world have been subject to much abuse and have an unacceptable chilling effect on the freedom of speech and the press.

The So-Called “Cultural Defense” in the United States

보해니안 조선대학교 법학연구원 2015 法學論叢 Vol.22 No.1

Defendants charged with breaking the law and brought before the courts in America’s multicultural society occasionally attempt to offer evidence of their cultural backgrounds in their defense. A strong difference of opinion characterizes scholarship on whether cultural variation should be admissible in the criminal justice system, and to what extent, and while some judges have allowed it, most have not. Proponents of the “cultural defense” include multiculturalists who assert that in an increasingly pluralistic society, fairness requires that the criminal justice system be individualized to moderate the strict application of the law. Opponents who oppose the multiculturalism argument in general, support the admission of cultural evidence on due process grounds. Many observers decry the success of the cultural defense in a number of shocking brutal and tragic crimes against particularly women and child victims. On occasion the cultural defense arises when a person who is raised in a foreign society commits a criminal act because they are not aware of the laws in the host country. More often an apparently law-abiding person raised in a foreign culture commits a criminal act in a host country because of being compelled to do so by the unique values that are native to the person’s culture, with the evidence being presented to rebut an element of the crime charged. This author concludes that because a cultural defense law undermines the need for deterrence and violates the principle of equal protection, an independent cultural defense ought not to be recognized, but culture should remain admissible to either rebut an element of the crime charged, such as the required mens rea, or when offered in support of one of the traditional criminal law defenses.

Theory of Mixed Government, Considering Economic Interests in Checks and Balances

보해니안 조선대학교 법학연구원 2019 法學論叢 Vol.26 No.2

South Korean President, Moon Jae-in is honorably following up on his campaign promises, reiterating his strong commitment to “first meet the needs of the people.” In January, 2018, President Moon called for a national referendum on constitutional revision, in the meantime urging lawmakers in the Korean National Assembly to accelerate deliberation on potential constitutional amendments to enhance human rights and move to decentralize government in Korea. Among the more important issues in the resulting constitutional debate is the nature and scope of effective checks and balances on the powers of the nation’s Chief Executive. It is common knowledge that Korea has enjoyed a profound and healthy overall trend of social and economic development since 1987. In order to maintain the impetus of this positive growth, this paper suggests that in lieu of making dramatic and possibly ineffective constitution amendments relying solely on the doctrine of separation of powers, which is class neutral and blind to economic interests, scholars and reformers also consider the implications of the classical theory of mixed government. Although the practical impact of mixed government ostensibly died along with the demise of monarchy, giving birth to the Federalists’ formulation of the separation of powers, the theory of mixed government still endures in thoughtful minds because it takes into consideration how alignment in class and economic interests impacts the distribution and consolidation of political power. This piece outlines the history of democratic development in Korea; reviews the separation of powers principle and the liberal view of self-government; briefly surveys typical theoretical responses to liberalism; resurrects the theory of mixed government; argues for the class consciousness that is embedded in the anacyclosis of Polybius; and concludes with a recommendation that Korean scholars reconsider the utility of the classical theory of mixed government to formulate a republican polity that maintains the healthy balance of social and economic development that has characterized the Korean democratic movement since its inception. In substance, the term democracy is modern shorthand for mixed government, which may best function today in a healthy republic through the independence of the chief executive (representing the interests of all citizens alike with no particular regional or class preferences) and the equal vigilance of a citizenry that is intimately involved in government at the local and national levels. Much additional reflection and deliberation is required, and this paper is only an initial inquiry.