[Editorial] Reforming Korea’s legal system

Ryu Byeong-un, Professor of Legal Studies at Hongik University

"Written evidence drafted by prosecutors in closed rooms cannot take precedence over testimony given in court," Supreme Court chief justice Lee Yong-hun said recently. He even told a gathering of judges to "take prosecution investigation records and toss ’em away." He is quoted as also saying that "most documents written by attorneys are linguistic mischief designed to fool people."

The prosecution and the national bar association are upset. But it must be remembered that judges, prosecutors, and attorneys have been in bed together all this time in a relationship that thoroughly neglects the rest of the country. This relationship has produced negative outcomes, including the special treatment former judges receive as lawyers and a system in which you are found guilty for not having enough money to fight your case.

While the way Lee worded his statement was a bit of an issue, he was acknowledging the problems that exist in the way the judicial system currently operates. When he spoke about the prosecution, he was emphasizing the need to prevent assumptions based on documentation submitted by prosecutors. These documents should be admitted as evidence only in exceptional instances; the courtroom should be the place where testimony is gathered. When Lee spoke about lawyers, he was pointing out the ills of common practices in the profession, which often means a disregard of the obligation to seek the truth.

In Korean trials, there is never a need for lawyers to stay ’one step ahead’ in logical and legal principles. Lawyers are predictable. In extreme instances, some of them have been known to have someone else draft their court documents for them. Court dates frequently get postponed because lawyers have something "more important" going on, and with actual trial sessions taking place in intervals of a month or two trials essentially become "written" rather than live events. It is therefore inevitable that lawyers with personal connections are the ones who are the most "effective." Sometimes highly connected men with the right connections look more capable than real lawyers, and are sometimes even preferred when it comes to getting the right results.

However, the problems with courts and their judges are just as serious. "Judicial independence" has meant that no one really knows what goes on behind closed doors. Granted, during Korea’s dictatorships, independence from political elements did mean something, but the situation is different now that we live in times of democracy. The closed-room judiciary system has been abused, in cases ranging from double standards applied to the issuance of arrest warrants to the favored treatment of judges’ wives versus prosecutors’ wives when warrants are requested to scan their financial records for any wrongdoing.

In proper democracies like the United States, the legal system is based on a fundamental and thorough distrust of state authority, and that is why judges are chosen through elections and people are tried by juries. In Korea, the courts say they are reforming, but they want to implement a system that merely makes it seem like a jury is involved. The general population will instead be supporting actors, and the judges will remain the main show.

If the courts say to the people, "Only we know the law, so step aside," will not the people say in return, "This is our country, so who are you to judge us?" The chief justice needs to compare Korea’s judiciary to the feudal, aristocratic system that was the first target of the French Revolution. They are the same; not in severity, but in the sense that their effectiveness is disregarded by the populace. The actual authority to try citizens needs to be returned to the people, in order to bring democracy to the judicial branch and give sovereignty to the people.