Community Service

This week, the Judicial Research and Training Institute (the finishing school for all Korean law students) has ordered one of its graduating trainees to do 300 hours of community service and graduate late. This is because the trainee sent transcripts to potential employers in which he fakes his grades. He accomplished this by manually editing the document, scanning it, and printing it.

What struck me first and most forcefully was what I would call the incredible leniency shown to him. Besides giving the student such a light penalty when even disbarment might be reasonable, the institute and the press have kept the student's identity secret. Well, not including the places he sent those bogus transcripts, and anyone they see fit to tell about it.

However corny this may sound, given the jokes I'm told people make about our profession, the legal profession is one that relies on individual integrity to work. How can a lawyer who would lie at such a basic and elemental level be trusted later in his career, when the stakes get really high? I have to wonder: did the institute consider that this move suggests to the people of Korea how indispensable it finds integrity among the attorneys it sends out into society?

RE: Re: Judicial Independence

There has been an ongoing row here about the doings of Supreme Court Justice Shin Young-chul. Justice Shin was recently elevated from his position as the head judge of the Seoul Central District Court. While head of the district court, Justice Shin sent a series of e-mails to district judges, encouraging them to speed up trials of anti-U.S. beef protestors. These e-mails instructed some judges to discourage motions that would frustrate such prosecutions.

It should be pointed out that judges in South Korea do not have perpetual appointments. They are promoted and demoted based on their performance, which is in part decided by the head of their court. This means all the judges e-mailed by Justice Shin owed their future appointments in part to his evaluations of him.

When the scandal broke, charges were laid against Justice Shin. Finally, the Supreme Court's Chief Justice elected only to verbally reprimand him. Justice Shin's written apology followed, and that was the extent of his punishment thus far.

A number of judges across the city and the country are angry at this outcome. They met to consider demanding that Justice Shin resign, or otherwise the National Assembly should impeach him.

Saturday Night's All Right for Sexually Harassing

Last night in Seoul, a girl out on a public street with one or more friends was accosted by two chaebol executives (chaebols = super-conglomerates, equivalent to the zaibatsu of Japan). The two execs had been drinking, and decided to try to lift the girl's skirt and take photos of the whole affair.

Police fortunately came upon the scene and stopped this, after it had gone on a little while. The police decided not to press charges against the older exec, because he and the young lady came to a settlement. No settlement was reached with the younger exec, who was charged. This is not the first example I've seen of sexual harassment treated lightly, but what struck me was how settlement between the criminal and the victim averted criminal sanctions. While the criminal justice system here also operates on this premise, I hear that this is pretty typical. Perhaps this is exceedingly naive of me, but isn't an action punished criminally because it affronts society, rather than as revenge for the victim?

Your thoughts or words of wisdom are, as always, welcome.

(with apologies to Elton John)

Individualistic, Legalistic America v. Communitarian, Confucian Asia

(Picture is not the author's)

I've finally reached my limit for listening to people harp on the notion of a deep East/West cultural split. "The United States is being torn apart from within by individualism and legalism. Asians, unlike Americans, do not feel the need to resort to litigation for all their problems. They find other, more harmonious ways to settle disputes."

Obviously, you can tell I'm not a fan. I'm not even sure how much truth there is to such claims. I recently came upon what I consider a perfect example: adultery law. In Korea and Taiwan, adultery is prohibited by criminal law and a penalty which can be up to two years in prison. Although a criminal matter, it is not the State but the spurned spouse who must bring the charge against the adulterer and the interloper. That is to say, the system encourages spouses to co-opt the law as a form of revenge to deal with an intimate family problem.

In the U.S., by and large, adultery laws has been almost completely repealed or simply lapsed. While I am aware of certain exceptions, including a gentleman who was fined $250 in our own Commonwealth, it is fair to say adultery law is mostly a thing of the past.

Despite our reputation as the most litigious place on earth, we have decided that this is an area where social mores, rather than law, should regulate behavior. The Korean supporters of the adultery law (who are becoming fewer and fewer over time) claim that, if adultery laws ceased to exist, marriage would cease to have any meaning and infidelity would become rampant. As of Jan 2009 and Oct 2008 respectively, 25% of American men and 68% of Korean men report that they have cheated on their wives (rates for women, interestingly, are similar in both countries: 15%). Is it too presumptuous of me to say then, that this claim is a difficult one to justify?

I would like to hear your thoughts or examples of other areas you may be aware of where other (especially non-Western) countries encourage litigation and the litigious U.S. feels that non-legal norms are sufficient to ensure order.

Constitutional Review: A Law Prohibiting Night Protests

The U.S. and Korea have been in negotiations over a free trade agreement (FTA) for some time now. Up to now, Korea hasn't imported U.S. beef, and an FTA would require that to change. For one controversial reason or another, this has sparked a fear among many Koreans that importing U.S. beef means risking the importation of Mad Cow Disease. Late last year, a number of anti-FTA protests took to the streets of Seoul, and one of them became violent after dark.

A few months ago, the Korean National Assembly passed a law restricting nighttime protests. Under the law, groups would need to get permits to hold nighttime protests; daytime ones remain unrestricted. The Korean constitution ensures that "All citizens shall enjoy freedom of speech and the press, and freedom of assembly and association," and that "licensing of assembly . . . shall not be recognized."

The law has been brought before the Constitutional Court for review, arguments have been heard, and the court's decision will be announced within a month or two. Interesting from an American perspective, the court held a public hearing to get the public's opinion on the law and its relationship to the constitution.

As Americans, we're taught that our laws protect freedoms of speech and assembly to a greater extent than anywhere else in the world. I find it quite interesting then, that the Korean Constitution Court is considering striking down a law that I believe would pass constitutional muster in the U.S. The U.S. Supreme Court allows restrictions on the right of assembly under the doctrines of "clear and present danger" (Dennis v. United States), or in ways that are "content-neutral"(see, e.g., Hill v. Colorado), for example.

The law passed by Korea's National Assembly is content-neutral and is backed by the force of recent history. That is to say, to my knowledge the great majority of night protests over the past two decades have turned violent or at least damaging to private property. Based on the Korean constitution's language that "licensing of assembly . . . shall not be recognized," the Constitutional Court may have to protect freedom of assembly to a greater extent than the U.S. Or, maybe it will point to one of the other articles of the Korean constitution (Art. 21 (4) comes to mind) as a reason not to.

Intellectual Property in Korea

When most people think of Asian countries where intellectual property rights are flouted, I imagine they usually think of places like Vietnam, Thailand and especially China. I've noticed so many examples of it here that it surprises me.

You can see here a box of doughnuts from "Double Donuts" which bears a striking resemblance to an American chain which is also quite popular here. This place is not flying under the radar; it's operating right by a busy subway station.

The other picture is of a candy bar called "KicKer" that can be found in any convenience store. In all fairness this candy bar has little ruler markings printed into it.

I've found an ice cream place called "Ba-su-kin Robbins," loosely named after its founder. Its sign bore a strong resemblance to a US chain. There are also a growing number of folks selling pirated DVDs on the streetside. Some are permanent and some aren't, but they're all very noticeable. There are even some right in Gangnam, only blocks away from the headquarters of Samsung, many top law firms, and the Korea Intellectual Property Institute. Many foreign businesspeople and Korean actors who probably star in many pirated movies must see these, but it doesn't seem to change anything.

Finally, I had an idea: These are all instances where no one seeing the store or product would actually think the maligned trademark holder had something to do with the offending product. What I mean is, no one eating at Double Donuts would mistakenly think they were eating Dunkin Donuts. Perhaps, I thought, trademark protection law in Korea only protects TM-holders against consumer confusion, and simply doesn't recognize "TM dilution" the way US courts do. This is the idea that a proliferation of knock-off products cheapens the good name or status of the original product, thereby hurting its business.

Then I saw a street vendor selling rip-off Nike and The North Face shirts. Not with similar logos, but identical ones. There goes my theory.

I think I'll look for an IP professor this week and bother him about it.

The Human Rights of a Suspect's Family, Revisited

Classes began this week, and I have no big complaints. I am in class primarily with undergraduates. I'm not the sort to paint with a broad brush, and there are a great number of truly insightful undergraduates. However, with so many undergraduates, some undergraduate things are bound to be said. Heaven knows such things get said in law school.

One highlight was the first class meeting of "Human Rights in Korea & East Asia." Our discussion of the differing conceptions of the terms "law" (or droit, loi, recht, or 법) and "human rights" (ditto for droit de l'homme and 인권) among cultures and languages was quite interesting. The term "human rights" evokes a different set of references and mental pictures for an English speaker than "인권" does for a Korean. This seems to be the first of at least two roadblocks to a universal concept of human rights.

The second is this: Even if we made the incredible leap of assuming that the English understanding of human rights was true and universal, implementing it across the globe would require resort to local language. One can call law "법" or one can call it "law," in which case it will just be mentally translated to "법" by locals.

But this is not the case. From my perspective, despite what a collection of dictators say, there are some human rights which are universal. Others are probably not, and the discussion of these usually tends toward non-Western thinkers claiming that international human rights is just a Western construct.

There is a tendency among many of us in the West, myself included, to dismiss these claims that our concept of human rights isn't universal. Between this class and a new article on the serial killer Kang, it occurred to me that other cultures recognize certain legal rights as human rights, where we in the U.S. simply don't. (For background see my earlier post, "Human Rights v. Right to Know.")

According to the latest article, the stature of that human right here in Korea is certainly slipping, but the still good law prohibiting the police from disclosing a suspect's identity was passed specifically to protect his or her family from humiliation - called a human right.

Besides the longstanding socialist argument for positive human rights (food, water, etc), has anyone encountered other examples of "human rights" recognized in the non-Anglophone world that we do not? I'm very interested in your considered comments.

Legal Info for Non-Koreans

The Korea Times, an English-language daily, ran an article yesterday about the Ministry of Legislation's (MOLEG) newish online database of legal information in English. The database contains legal info for foreign investors, workers, and spouses in Korea. It contains the texts of relevant statutes and codes translated into English in a fairly understandable way, in my opinion. Then again, I'm a little lawyer-to-be.

The site is by no means perfect, having a number of typos and grammatical errors in these translations, but the real beef foreigners here have is the general presentation. Even when reliably translated into English, many users complained that the database seems to have been made by lawyers, for lawyers. There aren't any layman explanations of the different laws, and when a code or statute section directs someone to contact X agency or government office, English-speakers with little Korean aptitude must find out for themselves.

Most of the ills of MOLEG's database can be traced to the way the translation of 600+pp of statutory text was done. The pages were translated by only three people over 1.5-2 months, with a single "look-over" by a native English speaker, and not a lawyer at that.

The Jury Is In

They've gone to jury trials in South Korea on some criminal matters, and you can read about it here. As the article says, a jury's verdict here is never binding on the presiding judge, who makes the final decision.

This change is basically being phased in in tandem with the switch to US-style, post-graduate law schools. All of this raises the question: in an Asian civil-law culture, what's the impetus to ape the US to such an extent?

Evaluating Judges

Back during Spring 2008, I met a Korean judge who was visiting the University of Richmond, William & Mary, the Virginia Supreme Court, and other courts in D.C. and Utah. He was investigating how American judges are evaluated in different jurisdictions, with an eye toward creating a new system for evaluating judges here in Korea.

This year, the Seoul Bar Association announced that it would implement judicial evaluations for judges around Seoul. Read about it here and here. A little background on how judges become judges here seems in order. Roughly, what happens is that a bunch of folks take the bar exam and a certain number (up to now, 1000) have been allowed to pass. Of those that pass, the top scorers become judges, the next become prosecutors, and the majority below are relegated to private practice.

Judges and prosecutors, as one article mentions, eventually go on to private practice themselves after a while. This means old lawyers, who themselves sometimes were judges, are practicing before and evaluating younger judges on items like "upholds the dignity of the office" and "is impartial to both sides." Even in the United States, a judge faced with an older lawyer who used to sit on his bench could prove intimidating. Could this be a more serious problem when that older ex-judge lawyer is actually holding the judge's report card, in a country where Confucianism dies hard?