Legal Reform In Korea.

Vol. 14 No.10 (October 2004), pp.829-832

LEGAL REFORM IN KOREA, by Tom Ginsburg (ed). Abingdon, U.K. & New York , NY: Routledge Curzon, 2004. 248 pp. Hardback. £60.00 / $115.00. ISBN 0-415-34100-0

Reviewed by David Gurnham, School of Law, University of Reading, U.K. Email: d.e.gurnham@rdg.ac.uk

The growing pains associated with the sudden and dramatic changes that take place during periods of political and economic instability often inspire and dismay in equal measures. The recent history of South Korea (“Korea”) is a case in point. Since its transition to democracy in 1987, Korea has provided a case study of the sheer struggle involved in forging a modern state that has previously been characterised by authoritarian rule, a centralised economy and a high level of racial and cultural homogeneity. Korea’s rapid economic development since the late 1980s has brought it into contact with new cultures and practises – from the globalisation of its economic structures to the influx of foreign migrant labourers. Such a story will not be altogether unfamiliar to a Western reader, Korea’s own experience being marked by the tremendous pace and its apparent success (notwithstanding major crises) in adjusting to distinctly “modern” conditions. Tom Ginsburg’s book joins a growing list of books on the role of law in Asian economic development, three of which he has reviewed in LAW AND SOCIETY REVIEW (2000). Although ostensibly about “legal” reform, it is interesting because its concerns are wider than that. On one reading, we are presented with a narrative on the emergence of a legal culture in Korea: from a deeply ingrained disdain of “law” in favour of less formal systems, to a nation in which norms, systematised in statute, are respected by citizens and enforced by courts. We are presented with the familiar question of the difference between law in theory and law in practice. However, viewed more broadly, this anthology of essays is concerned with the power struggles involved in the relationship between politics, law, economics and society in the new Korea.

Tom Ginsberg’s book is comprised of twelve essays by thirteen writers, each dealing with a particular aspect of legal reform in Korea. As the most significant signposts for any introduction to studying modern Korea, the political transition of 1987 and economic crisis of 1997 punctuate all of the essays in this book. Indeed, a reader without previous knowledge of Korean history will be struck by how “new” the Korea presented by this book is. All of the essays in this collection take 1987 as their starting point, although a salient theme of the collection is the extent to which Korea continues to be influenced by the more traditional aspects of its public culture and morality. We are given glimpses of pre-1987 Korea: Twentieth-Century Japanese colonial rule until 1945, authoritarian rule that followed the division of Korea after the Korean War, and its ancient Confucian roots. Although the essays do not discuss in detail legal reforms pre-dating 1987, [*830] Korea’s long intellectual history provides the context for the problem of competing ideologies of centralisation and liberalisation. Read together, the essays cleverly demonstrate the tendency in both Korea’s legal and economic systems for domination by a very small but extremely powerful elite. In both legal and economic spheres, competition and innovation are stifled by the continued prevalence of such elites and a traditionally strict order of seniority and hierarchy. The contributors to this book are not uniformly condemnatory of such stifling influences. Political corruption – itself described by David T. Johnson as having “deep cultural and structural roots” in Korea – is treated as somewhat less of a problem than the public scandal and retribution that it generates. The real problem is, not merely corruption itself, but the culture of democracy and scrutiny, in which the determination of prosecutors to demonstrate their ‘independence’ becomes a political weapon and the media’s thirst for eye-catching headlines overtakes the requirement to build up public trust.

Another tradition identified in the book is a certain “closed shop” mentality. Yoon Dae-Kyu plots the history of the Korean legal profession. Despite recent moves to open up the profession to new talent, the pass rate of students taking the Bar exam is a tiny 3%, representing an awful waste of effort and resources for the vast majority of students. Yoon identifies the problem as a “guild” mentality amongst existing lawyers, who fear the dangers for livelihood inherent in increased competition. In a completely different context, Lee Jae-Hyup explores what we might describe as the guild attitude of Koreans towards the influx of migrant workers. Immigrant labourers, mainly entering Korea illegally from Indo-China and South-East Asia, are viewed with hostility by most Koreans, especially since permanent jobs have become scarcer after 1997. In contrast to educated Western professionals working in Korea, these labourers are looked down upon as representing all that is backward, inefficient and primitive. For Lee Jae-Hyup, the conditions in which they live (typically far worse than Korean citizens) represent a huge challenge for the Korean legal system to live up to the promise of equality of its formal constitution. On the economic side, we are reminded by many of the authors that Korean industry is dominated by a conglomerate of businesses (called chaebol). For example Christopher Yoo points out that, in the telecommunications industry, competitiveness and innovation have been muted by the continued tendency of government, not only to allow this domination to continue, but also to exacerbate the situation by controlling prices, hand-picking favoured contract bids and dictating substantive strategic policies. The value of these observations becomes clear by their being presented as they are in this volume, combining to highlight the tension that runs through Korean development between the authority of elites and the impertinent interruption by democracy and decentralisation. The tension between authority and democracy and the role of law in responding to it clearly has general relevance.

Yoo argues that the extent to which Korea’s economy has embraced liberalisation in recent years owes largely to the catastrophic circumstances of 1997. As an emerging economic force [*831] in South East Asia, the increasing importance of a global outlook has in part been forced upon Korea by the weakness of its legal and economic structures. This was exposed most dramatically by the economic crisis of 1997, in which IMF bailout loans came attached to demands for a comprehensive overhaul of such structures. Essays by Terence Halliday & Bruce Carruthers and Kim Soh-Yeong take up themes related to Korea’s economic troubles and legal changes made to cope with these. Halliday and Carruthers focus upon the 1997 crisis itself and tension between the attitudes of economists and lawyers in using law to provide better bankruptcy measures. Kim widens the debate somewhat in a discussion of the impact of the economic crisis upon the labour market. We also learn (from Craig Ehrlich and Kang Dae-Seob) that Korean corporations are adopting U.S.-style codes of conduct as a public relations strategy.

All of the chapters deal – to a lesser or greater extent – with the role of law in adapting to the various challenges posed by Korea’s modernisation. The success or otherwise of mobilising legal mechanisms in responding to these challenges is assessed in comparison with other possible strategic avenues of action and dispute resolution. A theme that is most clearly brought out by this approach is the conflict in Korea that arises between law and a traditional distrust of the legal process. Korea’s traditional values have been largely developed according to Confucianism, which tends to favour informal, social normative pressure and self-regulation over formal law in regulating society. Lim Jibong’s critique of the Constitutional Court’s interpretation of Korea’s ancient Confucian rules on marriage provides an example of the decline of such rules. Similarly, essays by Cho Kuk and Choi Dai Kwon tackle two ways in which Confucian morality has come into conflict with the demands of capitalist, urban society. Changing attitudes towards sex and sexual politics have, argue these authors, exposed the inadequacy of traditional moral codes which continue to underlie certain areas of law. Uniquely amongst both Western and East Asian countries, Korea continues to classify adultery as a criminal offence, and sexual harassment litigation has only very recently started to become formalised. In a demonstration of its breadth, Ginsburg’s book considers the implications of Koreans’ reluctance to litigate in other areas. The final essay, by Lee Jae-Hyup, examines environmental law, and finds that due to a failure on the part of government to take responsibility for resolving environmental disputes, Koreans are more likely to seek redress by direct action, protest or even violence than by going to law.

As a study of the problems involved in mobilising legal machinery to deal with the kinds of political, legal, economic and social problems faced by a new democracy and an emerging economy, this is a stimulating book. As I have suggested, it is also a very interesting insight into the clashes that can occur between ancient and modern – also domestic and global – philosophies in responding to the needs of an urbanising, expanding economy. The essays are short, sharp and generally well written, so it is accessible to a wide readership. The focus upon South Korea – a country perhaps best known on the world stage for its relationship with the U.S. and its [*832] northern neighbour – should not be a bar to readers with a more general interest in law, economics and development.

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