[OUTLOOK]The legacy of the legal systemShimane Prefecture of Japan recently held events to mark the first “Takeshima Day.” When I heard the news, I was reminded of the judicial reform currently in progress. The current penal laws and criminal procedure laws are achievements that the second National Assembly attained during the Korean War. It was an especially emotional moment when Korea finally shook off its colonial criminal code, which had been a symbol of oppressive Japanese rule, and got to have a penal code written in Korean.
In order to express the pride and feeling of having a law of our own, the second National Assembly set up a kind of a memorial within the code. The lawmakers wrote that the criminal law was to be enforced as of Nov. 3, National Foundation Day, and that the criminal procedure law was to be enforced starting May 30, the date when the assemblymen had been elected.
Sadly, however, it was not enough to completely bury the legacy of Japanese colonial rule. The foremost concern of codification at the time was to escape from the six codes of laws written in Japanese. Amid the chaos that followed liberation and amid the flames of the Korean War, proceeding with a proper codification project was virtually impossible. So the legislators chose to establish laws in a short period of time, by making necessary additions and omissions to certain exemplary laws.
In the case of criminal law, the lawmakers referred to the revised draft of the Japanese criminal code, and the new criminal procedure law was based on the law from colonial rule. They had to postpone establishing more proper criminal codes until the foundation of the Republic of Korea became more solid.
More than five decades have passed since the criminal code and the criminal procedure laws were established. In the meantime, the country has gone through various changes: political democratization, rapid economic development and improved human rights awareness. Koreans once discussed how to achieve a $100 per-capita national income, and now we are aiming for a per-capital income of $20,000. We are now capable of reorganizing the penal laws suited for the sovereign nation the early lawmakers had dreamed of 50 years ago.
However, fixing the laws related to criminal justice is no easy task. The three legal entities ― the courts, the prosecutors and the attorneys ― have conflicting interests and are not likely to come to an agreement quickly. Most of all, they are afraid of changes, because the judicial system is by nature preferential to stability.
Due to their inherent conservativeness, former administrations have included the reform of the criminal justice system in their main agenda, and now the “participatory government” of President Roh Moo-hyun is also trying to reform the criminal justice system. And finally, a series of drafts of revisions for the criminal procedure law have been proposed and are waiting to be reviewed at the National Assembly.
Watching the National Assembly deliberating on the bills, I had one concern: That it might end up following the precedent of the 1995 criminal law revision. In 1992, the government proposed a bill amending the criminal law to the National Assembly after eight years of preparation.
The purpose was to escape from the framework of Japanese law and establish our own criminal codes. However, the National Assembly had no sense of history at that time. They viewed the revised criminal law as merely one of the countless bills they must debate and delayed its review. By the time the 14th National Assembly was over, the lawmakers hurriedly concluded the revision by changing the name of the national currency from the “hwan” to the won for matters of monetary damages and supplementing some clauses necessary for administrative purposes.
This time, the amendments must not repeat the failure of 1995. Many Japanese scholars know too well that Korea’s criminal law and the criminal justice system are modeled on their legislative examples. While they do not speak up, they think in the back of their minds that they were the ones who created the Korean penal codes, just as they claim that Dokdo is their territory.
The proposed amendment to our criminal law is a reflection of our efforts and abilities after a half century of preparation. The fact that the three legal entities came to an agreement is itself a special accomplishment. The National Assembly needs to deliberate on the bills with a solid sense of history. Above all, the lawmakers must prepare for the smooth enforcement of the revised laws through a speedy review and voting. I hope that the 17th National Assembly will reestablish the criminal justice system of the Republic of Korea as one befitting a sovereign power.
* The writer is a professor of law at Seoul National University. Translated by the JoongAng Daily staff.
by Shin Dong-woon