Understanding the Korean Legal System: A Guide for Foreigners
If you’re living in Korea, doing business here, or even just visiting, it is helpful to have a basic understanding of how the Korean legal system works. The legal procedures, court structure, and rights available to foreign nationals may differ significantly from those in your home country.
At Kang & Shin, an English-speaking law firm in Korea, we’ve prepared this introductory guide to help you understand the basics of Korea’s legal system.
Overview of Korea’s Legal System: A Civil Law System
South Korea follows a civil law system, historically influenced by German law, while also incorporating elements of American common law and customary practices. Unlike in common law countries such as the U.S. or U.K., civil law systems are not primarily based on case law. In Korea, the main sources of law are codified statutes enacted by the National Assembly, followed by presidential decrees and enforcement decrees, with the Constitution serving as the highest legal authority.
Legal principles are primarily found within comprehensive written codes like the Civil Act, Civil Procedure Act, Commercial Act, Criminal Act, and Criminal Procedure Act, rather than evolving mainly through judicial decisions. While court decisions, particularly those from the Supreme Court, are highly influential and generally followed by lower courts in practice (i.e. they have de facto binding authority) they do not have the binding force of precedent stare decisis as seen in common law systems.
The Korean Court Structure at a Glance
South Korea has a unified, national judicial system, meaning there are no separate state or provincial courts as in federal systems. The ordinary court system generally follows a three-tiered structure: District Courts, High Courts, and the Supreme Court. In addition, the Constitutional Court operates independently and has jurisdiction over constitutional matters.
- District Courts: These are the courts of first instance where most civil and criminal cases initially begin. Depending on the case’s nature and value, it might be heard by a single judge or a three-judge panel.
- High Courts: These are appellate courts that handle appeals from the district courts. Appeals at this level typically involve a review of both the facts and the law (de novo review). High Court cases are heard by a panel of three judges.
- Supreme Court: This is the highest court for ordinary legal matters and the final court of appeal, which reviews matters of law rather than fact. Cases are heard either by a panel of justices or the full bench (en banc).
- Constitutional Court: Standing separate from the ordinary court hierarchy, the Constitutional Court has exclusive jurisdiction over specific constitutional matters. Its key functions include reviewing the constitutionality of laws and government action, and ruling on impeachment
Legal Rights and Representation for Foreigners
Foreign nationals in Korea enjoy the same basic rights in legal proceedings as Korean citizens, including the right to a fair trial and legal representation. However, language barriers and procedural differences can make the process difficult to navigate without professional help.
In criminal cases, the Korean government provides interpreters for foreign defendants and may appoint a public defender when certain conditions are met. These safeguards are critical to ensuring that the accused can fully understand the charges and participate in their defense. However, the quality of interpretation and representation can vary. To avoid misunderstandings or procedural complications, defendants are strongly advised to consult with an English-speaking attorney to ensure their rights are thoroughly protected throughout the process.
While self-representation is legally allowed in civil proceedings, it is rarely advisable for foreign nationals. In most cases, foreign parties retain a lawyer to help navigate the complexities of the Korean legal system. By granting Power of Attorney to a licensed Korean attorney, the attorney is fully authorized to act on the client’s behalf—this includes attending hearings, submitting legal arguments, presenting evidence, and negotiating settlements. Foreigners residing outside of Korea can also execute a Power of Attorney remotely, though notarization and either apostille or consular legalization may be required depending on the country of issuance.
Final Thoughts
Understanding the Korean legal system is the first step to protecting your rights and making informed decisions. Whether you’re dealing with a criminal proceeding, a legal dispute, or simply want to ensure your business is compliant, having the right legal support is essential.
At Kang & Shin, we assist expatriates, and international businesses with clear, professional legal guidance in English. If you need legal help in Korea, don’t hesitate to contact us.