The recent news covering the misconduct and subsequent upheaval among South Korean prosecutors are a stark reminder of an unfortunate fact of life for many in South Korea; the inequity that pervades the South Korean system of justice. This inequity arises from both cultural and bureaucratic factors but in the end owes its existence primarily to the lack of indigenous roots for the international concept of the rule of law.
The South Korean legal tradition, like the Chinese, is based on rule by law. In this tradition law is not seen as having a unique moral force which supersedes those in power but rather is seen as one of the tools through which the powerful maintain their control.
This tradition of rule by law was demonstrated most clearly by the South Korean government in the now decade long saga of the Lone Star Investment Fund. In this saga the South Korean government repeatedly changed its stance on substantive issues of law while violating its own legal and regulatory requirements. This behavior was justified by the belief that South Korean law was a legitimate tool to be used against a perceived adversary.
Now that Lone Star has filed its complaint with the World Bank’s International Center for Investment Dispute Resolution the South Korean government continues to regale the South Korean public with fanciful tales of future victory.
However, and despite repeated assertions by the government that it is legally well-prepared, this neutral international tribunal will base its decision not on the laws of South Korea as interpreted and administered by the government of South Korea but on international norms of fair conduct and de facto expropriation of investment. Thus the government will be forced to defend its conduct pursuant to the rule of international law.
In another case that has international repercussions for the South Korean legal system, a U.S. man married to a South Korean woman recently fled South Korea with his fifteen month old daughter. After filing for divorce in the Seoul family court the woman took the South Korean court custody decision to a U.S. court. However, her attempt to enforce the custody order ended abruptly when the U.S. court refused to follow the South Korean court decision.
According to South Korean news reports, the U.S. court stated that the well-known inequitable treatment of Americans in South Korean courts was so pervasive as to be tantamount to a violation of human rights. This stark assessment of the South Korean judiciary, if non-apocryphal, is an international embarrassment.
However the story did not end there. Instead the sad tale of this bereaved mother and her justified anger, or perhaps her personal connections, finally motivated the National Assembly to ratify the Hague Convention on International Child Abduction. Unfortunately for the South Korean judicial system implementing this convention is not simply a matter of passing the National Assembly by the required vote.
Implementation requires South Korea to establish a central authority to deal with child abduction cases and will require that the South Korean judiciary demonstrate a new level of competence in family law cases. These courts will be required to consider the best interests of the child in custodial decisions and to examine and rule on what kinds of child-takings are unlawful in a manner persuasive to foreign authorities. Finally annual reports by international authorities on how well member states are implementing the convention will keep an international spotlight on the performance of the South Korean judiciary year after year.
And how will the South Korean judiciary, prosecution and police fare under this growing international focus? If a recently released report from the Anti-Corruption and Civil Rights Commission in South Korea is any guide then the answer is not very well. After conducting a wide-ranging survey of citizens, public officials and reporters the Commission revealed that the Ministry of Justice, the National Police Agency, the National Tax Office and the Supreme Prosecutor’s Office all received the lowest grade possible in this transparency index.
Thus the legal drama of Lone Star and the specter of international child abductions, the billion dollar loss by Samsung in an American courtroom and the report by the South Korean Anti-Corruption Commission all demonstrate how a rule by law approach is unacceptable under modern international norms of law and conduct.
While many here may have grown accustomed to the inequities that come from such an approach, the resulting scandalous behavior of individuals empowered by this tradition should no longer be tolerated. The growing international reputation of South Korea for producing quality goods and infectious pop music must not be overshadowed by their actions. In the future all South Koreans, no matter their position, must adhere to the rule of law and not to rule by law.
By Daniel Fiedler
Daniel Fiedler has been a professor of law in South Korea since 2006 and a licensed attorney in California since 2000 and Arizona since 1998. ― Ed.
