Most of the aspects of South Korea's legal system are similar to that of Japan because of the Japanese Occupation which ended in 1945. After the Korean War, the original Constitution of the Republic of Korea was introduced in 1948. This Constitution was further revised in 1987. South Korea's subsequent history is marked by the ages of the First Republic, till the Sixth Republic. Following liberation from Japanese colonial rule in 1945, South Korea implemented a legal system very similar to the Japanese civil law system that had been in force during the colonial period.
In 1987, an option to restore the power of constitutional review to the Supreme Court, gave rise to a resulting judiciary hierarchy which was similar to the Japanese court system. Such a power was actually present in the Third Republic, and at that time, the concept of such a court system was predominantly influenced by Continental European antecedents of the civil law tradition. Korean conceptions of the role of the judge have been influenced far more by German thinking20. Clearly, the South Korean legal system is against the idea of common law concepts.
Most of the sitting Judges of the Korean Supreme Court have let it known that they disfavoured the proposed expansion of their jurisdiction to include constitutional review. Merryman has propounded a view regarding this matter, which states: "The tendency has been for the civil law judge to recoil from the responsibilities and opportunities of constitutional adjudication. 21" Such a disinclination was attributed to skepticism about 'judicial activism', a phenomenon viewed by many Korean jurists as a distinctive and objectionable feature of the common law doctrine.
Further, the Korean Constitutional Court as it was ultimately incorporated in the Sixth Republic Constitution can be traced back to the Verfassungsgerichtshof as recognized under the Austrian Federal Constitution of 1920. Through the intermediation of Japanese commentaries, Korean jurists have long been familiar with German Constitutional history. The Constitutional Court's jurisdiction is mandatory like that of the German Constitutional Court and not discretionary like the certiorari jurisdiction of the United States Supreme Court.
Also, the petition jurisdiction in South Korea follows a German model, corresponding to the mechanism of Verfassungsgerichtshof. Indicator of lawyer's knowledge The compulsory modules that law students must read are Civil Law, Constitutional Law, Criminal Law, Civil Procedure, Criminal Procedure, Corporate Law, Administrative Law, and Contract Law22. There does not seem to be any signs of necessary understanding of common law systems. Similarly, in South Korea, candidates who pass the judicial exam are required to undertake the professional training program that is provided by the JRTI before they can be admitted to the bar.
Also, in the past, a limited number of Korean graduate law students and legal professionals were able to broaden their educational horizons by pursuing advanced legal studies abroad. Typically, in the early years of the Republic, most of the Korean legal scholars went to West Germany or Japan for post-graduate legal studies, but in the last 40 years many have chosen to go to the United States. This trend is a reflection of the historical influences on Korea's legal system. The American influence on domestic law, combined with the strong U. S.
influence on international trade laws, has been both a product of and an impetus for the increase in Asian legal scholars studying in the United States. The South Korean government, recognizing the importance of American legal concepts in the formation and administration of domestic and international law and legal institutions, sponsors one or two-year expense-paid sabbaticals for study abroad for government officials, judges and prosecutors, and competition to study at prestigious American law schools is severe. Many law firms also offer their associates the opportunity to study for one or two years in the U.
S. , followed by the practical training at an American law firm. In both cases, the students usually acquire an LL. M. degree from an American law school, and some pass one of the state bar exams, adding the prestige of an American law degree and membership in an American state bar to an already rewarding educational and professional experience23. Notably, the most recent proposal by the presidential commission charged with formulating a comprehensive reform plan for graduate and professional education bears a striking resemblance to the American three-year graduate law school system.
In fact, such a proposal has arose in the Kim Young-Sam Administration (1993-1998), the Kim Dae-Jung Administration (1998-2003) and the Roh Moo-Hyun Administration. However, the stance of the Supreme Court is clear – that it opposes to such a proposal to reform the education of the legal profession because of the extension of years required for study and the possibility of a historical revolution for the Korean legal profession. Indicator of judicial system The development of the judiciary as an independent entity was stunted by the military dictatorships that governed Korea until the early 1990s.
Judges served at the pleasure of the President, and judicial independence existed in name only. Although it is not written law, in practice the decisions of the Supreme Court of South Korea have strong precedent value24. This seems to tie in with the common law doctrine of judicial precedent. However, we should also consider the possibility of a unique merger of the common law doctrine with the civil law perspective as in the case of Japan. Further, there has been a superimposition of common law institutions such as habeas corpus on the legal order. Conclusion
Concluding, the legal system of South Korea seems to resemble that of a salad bowl, where the common law and civil law concepts are interacting. However, the importance of judicial precedent only happens in practice. Perhaps, the South Korean legal system is moving towards that of a salad bowl, but now, it's still too early to tell. It is also arguable that the pursuing of graduate studies in US now only reflects an attitude to recognize the presence of common law principles, but does nothing to indicate a general receptiveness of common law principles.
Afterall, most law students who eventually leave for graduate studies become law professors, and this definitely does not include the practitioners. Case study: The Philippines Introduction The mix in Philippines' legal system reflects the different communities of the country: a) the Westernised Christian majority, b) the Muslims, c) the indigenous mountain tribes d) the underground groups comprising of the Moro Islamic Liberation Front and the National Democratic Front. 25 Summarily, Fortunato Gupit, Jr once put forth the following statement which essentially captures the state of law in the Philippines:
"The Philippine legal system, is a peculiar mixture of civil law, common law, indigenous customary law and contemporary law designed to meet current conditions, with a separate and distinct Muslim legal system operating for the Muslim minority26. " The main focus of this section is with regards to the mainstream law in Philippines, which is generally a mix of the civil and common law traditions. The issue in question is whether these civil and common law families do interact and function together to form a mixed legal system in Philippines, as opposed to merely co-existing separately.
In addition, one should also note that there exists a sub stream law which functions as an 'under current'27 together with the mainstream law. This sub stream law consists of canon law, the indigenous peoples' culture communities as well as the Bangsamoro people who are Muslims. Infiltration of common law principles in Philippines With a revised Penal Code and a new Civil Code28, the above timeline diagram shows the start of an infiltration of common law principles in the Philippines ever since the American Occupation and after the Spanish ended their colonial rule.
Increasingly in recent years, there has been a continued and greater extent of such an infiltration. This phenomenon can be attributed to several unsurprising causes29. Firstly, upon the transfer of power from the Spanish to the Americans, there was a substitution of the Spanish political law by the American political law. Secondly, not only does the Philippine legislature look to the Americans for guidance in the enactment of statutes, the Supreme Court in Philippines is also gradually making use of American precedents in judicial interpretation.
Lastly, Philippines law schools are beginning to design their curriculum according to the American law schools. For illustration purposes, the standard route to practising law in the Philippines is to undergo a four-year undergraduate programme followed by another four years of graduate law school. As observed, there is in fact a sure and gradual interaction between these two families of law in the Philippines legal system. Civil and common law features in the system
The private and substantive law in Philippines is largely civil in nature as the Philippines legal system undeniably originated from the Spanish. The common law nature is more significant in public law, as well as a few areas of substantive law such as commercial law and taxation. There is also significant reliance on American case law in judicial interpretation in the Philippines judicial process. Although the doctrine of stare decisis is still unsettled, case law is increasingly being used as evidence, although it is not the law itself.