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| (from Left): Terry Weidner, Ambassador Lee Tae Sik, James Taylor |
Korea remains on a path of significant legal reform. Over the past several years, the Judicial Reform Committee formed by Korea’s Supreme Court and the Presidential Committee on the Judicial Reform, have studied Korea’s criminal justice system and recommended a number of changes. Two of those recommendations have already been enacted in law, introducing lay participation in Korea’s criminal justice system, and a major revision of Korean legal education.
On April 30, 2007, Korea’s National Assembly enacted the Act for the Civil Participation in Criminal Trials. Although an official English language translation is not yet available, it is believed that several key elements of the legislation are:
- Advisory juries will be empaneled to hear some serious criminal cases. In addition to the juries, three judges will sit on each case.
- For the most serious cases, a jury of 9 will be selected.
- For “ordinary” felonies, a jury of 7 will be selected.
- In cases in which the defendant has confessed, a jury of 5 will be selected.
- The defendant will have the right to choose whether to have the case heard by judges, or by a jury.
- The jurors will be selected at random, chosen from citizens age 20 and older.
- At the close of the case, jurors will meet without the judges to try and reach a verdict, which must be unanimous. If the jurors are not able to reach a unanimous verdict, then they will meet with the judges to try and reach a verdict. The judges will not be allowed to vote on the verdict.
- From 2008 until 2012, the jury’s verdict will be advisory to the judge. The jury will also make a sentencing recommendation in the event of a conviction. After 2012, if the new system is successful, the National Assembly may make the jury’s verdict binding on the judge.
- Prior to the enactment of this new system, criminal trials rarely had live testimony or exhibits. Most criminal trials were conducted on the basis of written briefs and arguments. Under the new system, evidence will be primarily offered through live testimony and exhibits.
Korea’s Act for the Civil Participation in Criminal Trials is a revolutionary change to their criminal justice system.
A second significant legal reform was enacted July 3, 2007, when the National Assembly passed the enacted a new law revising the way that legal education is provided in Korea, the Act on the Establishment and Operation of Law Schools.
Until very recently, very few attorneys were allowed to practice law in Korea. During the period of time from 1949 to 1995, the passage rate for the national judicial examination (analogous to a bar examination) was only 2.16%. Only 1000 attorneys were allowed to pass the bar examination each year. According to the Korean Bar Association, in 2004 there were only 6273 lawyers. Korea currently has more than 49,000,000 citizens.
According to the following unofficial translation of the Act on the Establishment and Operation of Law Schools provided by the National Assembly of the Republic of Korea the Act was designed to provide more access to justice for Korea’s citizens by implementing a United States style of graduate legal education to replace the undergraduate system that is currently in place.
(From the unofficial translation of the Act on the Establishment and Operation of Law Schools)
Main points
1. A founder/manager of a university who aims to establish a law school shall meet certain requirements in terms of educational personnel, facilities, and educational courses, and shall gain approval from the Minister of Education and Human Resources Development. The approval shall be made through the deliberation of the Legal Education Committee organized by legal professors (Paragraph 1&2 of Article 5).
2. The number of first-year law school students shall be determined by the Minister of Education and Human Resources Development after consultation with the Officer of the Court Administration and the Minister of Justice. The president of the Korean Bar Association and the president of the Korea Law Professors Association may offer their opinions on the number of first-year law school students, and the Minister of Education and Human Resources Development shall report the number to the National Assembly’s standing committee concerned in advance (amended during the Plenary Session) (Paragraph 1&2 of Article 7).
3. Universities which establish law schools shall not provide bachelor’s degree programs in law (Article 8).
4. The Legal Education Committee shall be established under the auspices of the Minister of Education and Human Resources Development in order to examine the matters such as determining the number of law school entrants and providing permission on the establishment/abolishment/change of law schools (Article 10).
5. More than a fifth of teachers shall be qualified as lawyers or international lawyers who have at least five-year long hands-on experience in the fields concerned (Paragraph 1&4 of Article 16).
6. More than a third of law school entrants shall have a bachelor’s degree of a different major, while another more than a third shall have a bachelor’s degree at a different university (amended during the plenary session) (Paragraph 2&3 of Article 26).
7. Students shall be allowed to enter law schools form March 1, 2009 (amended during the plenary session) (Paragraph 2 of Addenda).
Contrary to expectations that there would be 3000 new law students each year, the Ministry of Education announced on October 17, 2007, that it would only allow 1500 new law students to enroll. Law schools that had spent significant funds preparing for the new system objected loudly, and threatened that they would not admit any students unless the government increased the quota to at least 2500. The government initially responded by saying it would not increase the quota, but then agreed to increase the quota to 2000. Many law schools still object to the reduced quota, and the matter remains in dispute.
In February of 2008, Korea conducted its first trial under Korea's new law allowing for juries to hear cases and render advisory verdicts. The defendant was convicted after a short deliberation. The judge accepted the advisory verdict, and also accepted the jury’s sentencing recommendation. Here are a collection of reports about the trial.
Korea jury system off to smooth start
South Korea: First trial by jury
First Korean Jury Trial Concludes
Korea’s First Jury Reaches a Verdict
First Jury Trial in Korea- Defendant Found Guilty
South Korea Holds First Ever Trial by Jury
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