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Civil Law and Civil Procedural Law

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Abstract

The purpose of this chapter is to give readers a general reference and information on Korean civil law and civil procedural law. These two areas of law cover a wide range of subjects. Thus, they are highly comprehensive in their scope. In particular, the Korean Civil Code is the lengthiest of all the statutory laws in Korea. Therefore, it is nearly impossible to give detailed accounts on every aspect of these two areas of law here in this chapter. Rather, this chapter aims to give an overall picture of these areas of law and to highlight some essential features thereof. Furthermore, this chapter also intends to give some insight on dynamic aspects of these areas of law. This dynamism mainly comes from interaction between Western form and Korean substance, as I will later explain in more detail. Against this backdrop, this chapter is structured as follows: Part II is the preliminary part of this chapter, aimed at providing readers with relevant background information concerning Korean legal history and institutions; Parts III and IV present a general overview of Korean civil law and civil procedure law, respectively; Finally, Part V gives a brief summary and conclusion of the chapter.

Keywords

  • Real Estate
  • Civil Code
  • Legal Person
  • Contracting Parti
  • Supreme Court Decision

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Notes

  1. 1.

    Only three of them remain known. They stipulate capital punishment for murder, compensation with grains for personal injury, and the enslavements of thieves.

  2. 2.

    Chun et al. (1980), Legal Attitude of the Late Yi Dynasty, in B.D. Chun, W. Shaw and D. Choi, p. 8.

  3. 3.

    Kim (2009).

  4. 4.

    Id. p. 247.

  5. 5.

    http://likms.assembly.go.kr/law/jsp/main.jsp.

  6. 6.

    Id.

  7. 7.

    Supreme Court Decision 99Da40418 Decided on June. 15. 2011; Supreme Court Decision 2001Da53059 Decided on April. 11. 2003.

  8. 8.

    Supreme Court Decision 2005Da5812,5829,5836 Decided on June. 1. 2007; Supreme Court Decision 2009Da1313 Decided on April. 23. 2009; Supreme Court Decision 2007Da59066 Decided on July. 22. 2010.

  9. 9.

    Supreme Court Decision 2005Da5812,5829,5836 Decided on June. 1. 2007.

  10. 10.

    Supreme Court Decision 2009Da1313 Decided on April. 23. 2009; Supreme Court Decision 2007Da59066 Decided on July. 22. 2010.

  11. 11.

    Supreme Court Decision 91Da8722 Decided on December. 13. 1991; Supreme Court Decision 91Da29804 Decided on March. 31. 1992.

  12. 12.

    Supreme Court Decision 93Da2629, 2636 Decided on October. 26. 1993.

  13. 13.

    Supreme Court Decision 2001Da32120 Decided on September. 5. 2003.

  14. 14.

    Supreme Court Decision 2005Da13288 Decided on November. 23. 2006.

  15. 15.

    156 Eng. Rep. 145 (Ex. 1854).

  16. 16.

    Supreme Court Decision 84Daka1532 Decided on September. 10. 1985.

  17. 17.

    Supreme Court Decision 94Da61359,61366 Decided on June. 14. 1996.

  18. 18.

    Supreme Court Decision 2004Da31302 Decided on March. 29. 2007.

  19. 19.

    Supreme Court Decision 88Daka6358 Decided on June. 25. 1991; Supreme Court Decision 95Da7932 Decided on July. 30. 1996; Supreme Court Decision 2002Da7527 Decided on November. 8. 2002.

  20. 20.

    Supreme Court en banc Decision 84Nu572 Decided on December. 26. 1984; Supreme Court Decision 2003Du10763 Decided on April. 27. 2004.

  21. 21.

    Supreme Court Decision 99Da66427 Decided on February. 11. 2003; Supreme Court Decision 2002Da64957 Decided on April. 8. 2003.

  22. 22.

    Supreme Court Decision 95Da29895 Decided on December. 12. 1997.

  23. 23.

    Besides these requirements set forth in Article 750, Article 753 and 754 presupposes the requirement of liability capacity.

  24. 24.

    Supreme Court Decision 98Da22857 Decided on June. 11. 1999. In this case, the claim was rejected.

  25. 25.

    Supreme Court Decision 93Da40614,40621 Decided on April. 12. 1996.

  26. 26.

    Supreme Court Decision 2008Ma1541 Decided on August. 25. 2010.

  27. 27.

    Supreme Court Decision 2003Ma1477 Decided on January. 17. 2005.

  28. 28.

    Supreme Court Decision 2000Da37524,37531 Decided on January. 22. 2002; Supreme Court Decision 2002Da64384 Decided on July. 8. 2003; Supreme Court Decision 2001Da53387 Decided on February. 27. 2004.

  29. 29.

    Supreme Court Decision 85Daka29 Decided on October. 11. 1988.

  30. 30.

    Seoul District Court Decision 99Gahab104973 Decided on January. 25. 2007; Seoul High Court Decision 2007Na18883 Decided on February. 15. 2011.

  31. 31.

    Supreme Court Decision 94Da41430 Decided on June. 29. 1995.

  32. 32.

    Supreme Court Decision 93Da12947 Decided on December. 10. 1993.

  33. 33.

    Constitutional Court Decision 95Hun-Ga6 Decided on July. 16. 1997.

  34. 34.

    Constitutional Court Decision 2001Hun-Ga9,10,11,12,13,14,15, 2004Hun-Ga5 (Consolidated) Decided on February. 3. 2005.

  35. 35.

    See generally, Kwon (2011).

  36. 36.

    Supreme Court en banc Decision 76Da148 Decided on November. 6. 1976.

  37. 37.

    Supreme Court Decision 97Da27114 Decided on December. 12. 1997; Supreme Court Decision 97Da52844 Decided on May. 8. 1998.

  38. 38.

    Supreme Court Decision 96Da52670 Decided on June. 12. 1998.

  39. 39.

    Supreme Court Decision 2002Da1178 Decided on July. 21. 2005; Supreme Court Decision 2007Da27670 Decided on November. 20. 2008.

  40. 40.

    See generally, Kwon (2007). Much of this article has been used in this chapter.

  41. 41.

    Small claims refer to the claims for the payment of money, fungibles or securities not exceeding 20 million Korean won (equivalent to approximately 27,800 U.S. Dollar as of 23 January 2011).

  42. 42.

    See Kwon (1996), at 451.

  43. 43.

    It is slightly more than 44,500 U.S. dollars, as of 23 January 2011.

  44. 44.

    There are some special provisions for the general forums of an ambassador or a minister (§4): the place of the Supreme Court—Seoul, a juristic person (§5): the place of its principle office, or state (§6): the seat of the government agency representing the relevant litigation—the Ministry of Justice in Gwacheon, Gyunggi, or that of the Supreme Court—Seoul).

  45. 45.

    Supreme Court Decision 2002Da59788 Decided on January. 22. 2005.

  46. 46.

    These persons are those who keep a close living relation with the party and are in a kinship within a specific scope, or those who are in a specific relationship under an employment contract, etc, with the party, such as the handling of, or assistance in, the regular affairs concerning such cases (§88①).

  47. 47.

    Supreme Court Decision 2010Da56616 Decided on November. 11. 2010.

  48. 48.

    Hahm (1986).

  49. 49.

    The total number of the cases filed in Korea during the year 2008 totals 18,402,098 (6,345,561 of which are litigation cases, meaning that there are adversarial parties), whereas the number for Japan in the same period totals 2,252,438 (547,017 of which are litigation cases). Japanese judicial statistics are available at Supreme Court of Japan http://www.courts.go.jp/english/ and Korean judicial statistics are available at Supreme Court of Korea http://eng.scourt.go.kr/eng/main/Main.work.

  50. 50.

    Judicial Business of the United States Courts, 2009 Annual Report of the Director, at, http://www.uscourts.gov/Statistics/JudicialBusiness/JudicialBusiness.aspx?doc=/uscourts/Statistics/JudicialBusiness/2009/JudicialBusiness2009.pdf.

  51. 51.

    See http://news.hankooki.com/1page/opinion/200909/h2009090821262376070.htm.

  52. 52.

    Supreme Court Decision 97Da38442 Decided on February. 27. 1998.

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Kwon, Y. (2013). Civil Law and Civil Procedural Law. In: Introduction to Korean Law. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-31689-0_4

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