Research and Teaching of Comparative Law in New Korean Law Schools JaeWon Kim SKKU Law School Seoul, Korea 韓國 成均館大學校 基礎法敎授 金宰源
Theme Comparative Law, Legal Information, and the New System of Legal Education in South Korea
Questions • How comparative legal studies and legal information have been attributed to the legal education reform in South Korea? • How the new law school system is affecting (and will affect) comparative legal studies in South Korea?
What is “comparative law”? • An intellectual activity with law as its object and comparison as its process • An academic discipline dealing with cross-national legal comparisons
Why Do We Compare? “Comparative sociology is not a particular branch of sociology; it is sociology itself.” (Emile Durkheim) - Legal study itself - The very intrinsic way of studying law
Continuing/ Growing Utility • Laboratory for Legal Studies Observing the experiences of countries at comparable stages of social and economic development • Global Interdependence Having interest in the responsiveness one another’s legal systems
In the Korean Context • Foreign Languages Critical tool for legal information as well as comparative legal studies • Legal Transplantation Indispensable research method due to the hybrid nature
The Politics of Languages • Chinese - Since 372 A.D., Chinese language has been officially taught at schools but only as ideographs. - The invention of the Korean alphabet, Hangul in 1446 by King Sejong and his scholars. - Even after the invention of the Korean phonogram, Chinese had functioned like Latinin Europe until early 1960s in South Korea. • Japanese (1910~1945 & ~1970s) • American English (1945 ~ present)
Chinese Influence • 經國大典, Kyungkuk Taejon During Chosun(朝鮮) Dynasty the Compilation and Codification of Laws Starting in 1397 and Publishing the final version of the Code in 1470 • Substantially influenced by scholarly works on Yuan(元) and Ming(明) Dynasty Code
Japanese Influence • Reception of the continental-civil law system and tradition since 1910s e.g. 朝鮮民事令(Chosun Civil Decree) in 1912 • Providing major legal terminology e.g. 主權(sovereignty), 權利(rights), 自由(freedom), etc. • Academic training and scholarship cf. German influence through Japan until 1960s, thereafter directly
American Influence • Constitution, Judicial Review, and Constitutional Litigation • Criminal Procedure (e.g. Miranda rights, Habeas Corpus, etc.) • Commercial Law (e.g. the Delaware General Corporation Law, etc.) • Law School • The Free Trade Agreement(FTA)
Legal Education Reform • Old system based on Japanese model • Agenda for reform - by small groups of scholars since 1970s - by governments since 1996 • Failure of the reform - ignorance and opposition from the bar and judiciary - not much support from the public
The New Law School s • In 2004, the Supreme Court changed its position to support the reform • In 2007, the Law School Act • In 2008, among 91 then-existing universities having a college of law or department of law, 41 applied and only 25 obtained government approval to establish American-style Law Schools.
The Supreme Court Not just the highest court but also having the power to appoint and train all judges, and supervise the Office of Court Administration - Managing the law libraries and electronic legal information - Sending judges abroad for education and training since 1984
New Law Schools Criteria for governmental approval of the post-graduate professional law school - Full-time faculty and student ratio must be at least 1:15 - Minimum 20 courses on comparative or foreign law - Law library accessible to international and foreign legal materials
Challenges • New breed of students admission criteria emphasizing on global competence, i.e. foreign language competence and international experiences, etc. • Confucius vs. Socrates • Opening the legal service markets under the FTA with EU and USA