The legal development in Korea: Juridification and proceduralization

Abstract

The last three decades have seen the rapid industrialization and modernization of Korean society, bringing the appearance of Korean society closer to that of Western industrialized societies. Also, in terms of legal development, features of modern law have appeared in Korean society such as the autonomy of law, the differentiation of law from politics and the establishment of the rule of law. Indeed, legal decision-making has become differentiated from political decision-making and legal principles have developed their own distinct logic and systems. The training and recruiting system for judges has also been autonomously established and the autonomy of the judiciary, which is described in the Constitution (art 103) as a system where judges rule independently according to their conscience and the law, has been realized. However, there is still some way to go before we can argue that a modern legal system has been fully established, as in Western societies. This is because, in contrast to Western societies which experienced a step-by-step development from a civic revolution and liberalization to industrialization and the establishment of a welfare state after the Second World War, the Korean legal system has experienced more complex and multiple-faceted processes of legal development. In other words, Korean society still contains some elements which are typical of pre-modern society. Some legal problems experienced in industrialized and modern society have been recognized in Korean society. In particular, Korean society has come to face the legal problem which has been recognized as ‘juridification’.