Post-War Legal Development in South Korea (1948–1987)
Introduction
The post-war period in South Korean legal development (1948–1987) was marked by the establishment of a modern legal system under successive constitutions, the enactment of foundational codes, and the systematic subordination of law to executive power under authoritarian governments. The 1948 Constitution established the Republic of Korea, the 1958 Civil Code codified private law, and the 1961 Military Coup inaugurated 26 years of authoritarian rule during which the judiciary was largely subservient to the executive.
The First Republic (1948–1960)
1948 Constitution
The initial Constitution adopted a presidential system with a unicameral National Assembly. It established fundamental rights, separation of powers, and an independent judiciary. However, the Constitution’s limitations — including broad emergency powers — enabled President Syngman Rhee to consolidate power.
Civil War and Legal Disruption
The Korean War (1950–1953) devastated the country and disrupted legal development. Emergency legislation, martial law, and the National Security Act (1948) became permanent features of the legal landscape.
Rhee’s Authoritarianism
President Rhee amended the Constitution in 1952 and 1954 to remove term limits, concentrating power and marginalizing the judiciary. The courts generally deferred to executive authority.
Enactment of the Civil Code (1958)
The Civil Code of the Republic of Korea was enacted on February 22, 1958, and took effect on January 1, 1960. Drafted by a committee of Korean scholars led by Kim Jun-bo, the Code:
- Adopted the German Pandectist structure (General Part, Real Rights, Obligations, Family, Succession)
- Preserved some Korean customary elements in family and inheritance law (patrilineal family system, head-of-family)
- Drew on Japanese, German, and French civil law sources
- Represented the first comprehensive Korean codification of private law
The Park Chung-hee Era (1961–1979)
Military Coup and Legal Subordination
The May 16 Military Coup (1961) led by Park Chung-hee suspended the Constitution and established the Supreme Council for National Reconstruction. The judiciary was placed under direct military control.
Third Republic Constitution (1962)
The 1962 Constitution restored a nominally democratic system but concentrated power in the presidency. Park was elected (and re-elected) under this framework.
Yushin Constitution (1972)
The Yushin Constitution (1972–1979) represented the apex of authoritarian legalism:
- The President was elected indirectly by the National Conference for Unification
- The President could dissolve the National Assembly
- One-third of Assembly members were appointed by the President
- Emergency decrees had superior legal force
- The Constitutional Committee (predecessor to the Constitutional Court) was powerless
Emergency Decree System
President Park issued nine emergency decrees between 1972 and 1979, criminalizing criticism of the Constitution, restricting press freedom, and suppressing dissent. The judiciary upheld these decrees, with few exceptions (notably the 1976 Myeongdong Cathedral case).
Legal Development Under Authoritarianism
Despite political repression, important legal developments occurred:
- Criminal Procedure Code (1954, revised 1973)
- Economic laws: Foreign investment promotion, export promotion, industrial regulation
- Commercial Act (1962), revised to support economic development
- Monopoly Regulation and Fair Trade Act (1980)
The Fifth Republic (1980–1987)
The 1980 Constitution under Chun Doo-hwan was marginally less authoritarian than Yushin but still concentrated power in the presidency. Judicial independence remained limited.
Seeds of Change
By the mid-1980s, several developments presaged legal reform:
- The Korean Bar Association began advocating for judicial independence
- Legal scholars increasingly challenged the positivist defense of authoritarian law
- Human rights lawyers (including Roh Moo-hyun and Moon Jae-in) defended democracy activists
- The June Democratic Struggle (1987) forced the regime to accept constitutional reform
Conclusion
The post-war authoritarian period left a complex legacy: the foundational codes were established and economic law advanced, but the rule of law was subordinated to executive power. The judiciary’s subservience during this period created lasting questions about the relationship between law and politics that the 1987 democratization would attempt to resolve.