TRANSMITTAL OF DIGEST OF KOREAN CIVIL AND CRIMINAL LAW

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81-01043R002300210014-4
• Release Decision: RIPPUB
• Original Classification: U
• Document Page Count: 144
• Document Creation Date: December 27, 2016
• Document Release Date: September 20, 2013
• Sequence Number: 14
• Publication Date: June 30, 1958
• Content Type: REPORT

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STAT
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- Digest
of?
KOREAN CIVIL and
CRIMINAL LAW
APRIL 1,1958
STAT
STAT
UNITED NATIONS COMMAND
OFFICE OF THE ECONOMIC COORDINATOR FOR KOREA
PUBLIC ADMINISTRATION DIVISION
APO 301
K-AV-155
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UNITED NATIONS COMMAND
OFFICE OF THE ECONOMIC COORDINATOR FOR KOREA
APO 301, SAN FRANCISCO, CALIFORNIA
Digest
of
KOREAN CIVIL and
CRIMINAL LAW
APRIL 1,1958
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1
3"--
FOREWORD
4
Prior to 1895 Korean law consisted of the unwritten customary
laws and a written penal code. There was no independent judiciary
under the then existing monarchy. Justice was administered by the
King's Executive staff. The first judicial reforms were made after
the conclusion of the China - Japan war in 1895 and provided for the
establishment of duly constituted law courts. ihen Korea was annexed
to Japan in 1910, much of the Japanese civil and criminal law, sub-
stantive and procedural, MRS made applicable in Korea thus providing
the foundation for the Civil Law system, which exists in Korea today.
Since the establishment of the Republic of Korea in 1948 a Korean
criminal code and code of criminal procedure have been enacted. A
new Korean civil code was recently enacted by the National Assembly
and promulgated by the President on 22 February 1958. It will become
effective 1 January 1960. The two remaining codes (the commercial
code and the civil code of procedure) are Japanese in origin and are
retained, in effect together with a large number of Japanese special
laws and Japanese Governor General Ordinances by P.rticle 100 of the
Constitution which provides that "existing laws and administrative
orders shall be in effect to the extent that they do not conflict with
this constitution". This provision of the constitution also continues
in effect numerous regulations issued by the U.S. Military Government
in Korea (1JSAMGIK) during the occup...tion of Korea from 1945 to 1948 '
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,
and also certain provisions of the unwritten ancient Korean Customary
law esipecially in relation to domestic matters and succession to pro-
perty. The Korean National AssemblSr has enacted nearly 500 laws to
date mostly in reference to the organization of central and local
government and various administrative agencies.
The mere recitation of the heterogenity of Korean law sources
is an indication of the complexity of the problems encountered in
digesting the law of Korea on over fifty law headings. This Digest is
in no sense an official interpretation of the Korean law and is only
intended as a preliminary step in the research of legal questions.
It is expected that the National Assembly will enact a Korean
civil code of procedure in the near future and work is underway on the
drafting of a commercial code which will complete the five basic codes
of the civil law system.
14hen the recently enacted Civil Code becomes effective on 1 Jan-
uary 1960 many of the law headings in this fligest will require substan-
tial revision. Until the effective date of the new Korean Civil Code,
the old Japanese Civil Code (less parts of Books IV and V dealing with
family affairs and Succession) remain in effect.
The editor is grateful to Mr. Sun-yup Hong of the Seoul Bar
Association who contributed considerable time in the preparation of
the Digest and made many valuable suggestions concerning the final
form of the Articles.
I March 1958
FRANK G. O'NEILL, EDITOR
Public Administration Division
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INDEX
Page
Acknowledgement
.
1
Actions
.
2
Adoption
.
4
Affidavit
.
5
Aliens
.
6
Assignments
.
11
Attachments
.
12
Attorneys
.
13
Bankruptcy
.
14
Banks
.
15
Bills 84 Notes
..... ?
. ? ?
16
Civil Affairs
.
18
Conflict of Laws &
Application of Laws
.
20
Constitution ,!t. Government
.
.27
Contract
.
29
Copyright
.
31
Corporations
.
33
Courts i ? ? o
?
35
Criminal Law
.
37
Criminal Procedure
.
40
Death
.
44
Deeds, Leases & Reiistration
.
45
Depositions
46
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V
T
Descent & Distribution
'Divorce ?
EXecution
Foreign Exctange Control
Foreign Trade
Frauds, Statute of
Garnishments
Holidays
Husband & Wife
Infants ac Incompetents
Interest
Judgement
Liens
Limitations
Local Autonomy. & Taxation ? ?
Marriage
Mines& Minerals
Mortgage
N otaries Public
Patents
Partnership
Pledge
Principal & Agent
Sale
? .
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Page
47
49
51
52
54
55
56
57
58
59
61
62
63
64
66
68
70
71
72
73
74
76
77
79
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Shipping
Statutes
Torts
Trademarks & Tradenames
Treaties& Agreements
Trusts
Taxes
?
?
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000 S.
Page
81
85"
86
88
90
92
93
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ACKNOWLEDGYENT
Acknowledgement must be made before a notary public. Acknowledgements
are not required for ordinary deeds nor are they in general use in Korea.
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ACTIONS
An action is commenced by filing a written petition with the court
having jurisdiction over the matter. In cases involving mall amounts,
the action may be commenced by oral petition.
The petition must contain the names of the parties, their legal
representatives, and the gist of the claim must be stated.
An attorney representing a party must file a power of attorney with
the court. After a petition is filed with court, a copy will be served on
the defendant and the presiding judge must fix a date for hearing and
summons the parties to appear. If the action is to be defended, the
defendant must file his answer in sufficient time for reply by the
plaintiff before the date of the first hearing. Cases are orally pre-
sented in open court after the pleadings have been completed. In com-
plicated cases, preliminary proceedings may be conducted before a
commissioned judge appointed specially for the purpose.
Jurisdiction attaches to any case in which the defendant has his
domicile or residence in Korea or when an obligation is to be performed
in Korea or when property in dispute between the parties is located in
Korea.
Cases involving 500,000 Hwan or less are heard before a single
judge, while cases involving more than this sum are referred to a colleg-
iate court consisting of three (3) district court judges.
The expenses for an action are assessed against the parties. The
attorney's fee is not considered a part of such costs. Appeal may be
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lodged with the High Court and questions of law may be further appealed
to the Supreme Court.
The High Court has original jurisdiction over matters pertaining
to dispositions by Governmental administrative agencies.
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ADOPTION
Aliens may adopt Koreans except the eldest son or one who is head
of a household or of a fmily. The parents of a minor child must consent
to the adoption and, if there are no parents, then the Frandparents. If
no grandparents, the guardian must give consent with approval of the
family council. An adult to be adopted must have consent of his parents
or, if none, the grandparents. An alien must furnish a certificate issued
by a member of the bar or a court of his country to the effect that the
adoptive parent is aualifed under the laws of his country to adopt a Korean
child. In the case Of an American adoptive-parent, he should furnish an
attorney's statement of elicibility in accordance with the law of the
State of which he is a resident. Korean law does not require that the
ado ting person be married and neither is there any restriction as to the
sex of the adopting parent. .equirements for adoption .1re governed by
the law of the country of the adopting parents and of the child to be
adopted. The adopting parent must be older than the person to be adopted.
A notification of edoption must he filed with the local administra-
tive .gency.1,Jhere the idoDtive parent is iocr.ted in Korea or at.the place
where the adopted child is domiciled.
(Also see Conflicts and Application of laws)
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ALIENS
Attorneys
Aliens who are qualified as lawyer; may be admitted to a qualified
firm for the practice of the law upon approval of the Minister of
Justice provided that similar courtesies are extended to Korean lawyers
by the country of the alien lawyer. Such alien lawyers may only handle
matters pertaining to aliens or alien laws.
Civil Rights
Aliens in the Republic of Korea enjoy all private rights except when
restri9ted by internal laws and ordinances and international treaties.
Alien corporations shall have no status in Korea unless specifically
recognized or registered by law and/or in accordance with international
treaties. Alien corporations so recognized shall be subject to all the
limitations imposed upon non-juridical alien persons.
Customs
Customs duties are collected on goods imported fromfoieign
countries in accordance with the law in existance at the date of import
declaration.
Duties on goods stored in bonded warehouses are levied in accordance
with the law as it exists on the date of delivery from such warehouses.
The rate of duty shall be in accordance with the customs tariff
except for goods subject to a particular convention. Ad valorem duties
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are based on the normal price of arrival (not invoice) at the time of
importation. Mien import' declarations are filed, the declarer is liable
for payment of customs duties. On imported mail matters, customs duties
are imposed upon the addressee according to the quantity, quality and
price of goods at the time of arrival at the post of customs clearance.
The usual diplomatic exemptions are granted and certain items necessary
for the rehabilitation of Korea are also duty free. Articles used in
trade such as samples, etc., which are usually re-exported may admitted
free of duty in accordance with regulations of the Minister of Finance.
Personal effects of travelers commensurate to their status may be ad-
mitted free as well as personal effects and household articles involved in
a change of residence provided such articles and effects are used ones.
Uhen goods which were imported duty free are sold to other persons
or presented as gifts, or are used in a manner other than specified, the
duty shall be collected if not more than five years has passed since the
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goods were imported.
Entry-Exit,-Registration
Aliens passing through or visiting Korea who remain in excess of
15 days must receive permisaon from the Minister of Foreign Affairs.
Those who desire to remain in excess of 30 days must obtain -a residence
permit from the 1,linister of Foreign Affairs and must register with the
municipal authority in which they reside. Exit permits mut be obtained
by aliens authorizd to reside in Korea. These provisions-do not apply
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to alien diplOmats, consuls and their families or to persons on official
business of an alien government.
Foreign Firms
A foreign firm desiring to establish a branch office in Korea must
register the firm in the same manner as provided for a Korean business
of a similar nature, and must appoint a representative in Korea whose
name and address shall be registered when the registration of the branch
office is made. The representative member of a firm shall have authority
to act on all legal and other business in connection with the operation
of the firm. A foreign firm will not be recognized legally-until this
registration hae been completed at the place of its establishment, In
reference to the issuance of stocks and bonds and the pledge or transfer
of stock, a newly established branch office in Korea shall be regarded
as itu head office.
Foreigh Investments
There is no foreign investment law presently in effect in Korea.
The hinistry of Finance handles matters pertaining to foreign investments
on a case basis, pending the enactment of a proposed foreign investment
law. The government controls the issuance of mining rights for under-
ground resources which, in the absence of special authorization, are
only granted to Korean citizens or jufidical persons in which more than
one half of the investment and control belongs to citizens of Korea.
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Flight of Currency
, I?
Except by permission of the Korean Government, no person shall removre
or cause to be removed, property located in the Republic of Korea to any
foreign country or North of the 38th parallel for the purpose of flight
of currency.
Land Ownership
An alien or juridical person of a foreign country which prohibits ot
imposes conditions or restrictions upon Korean nationals or juridical
persons in acquiring rights in land maT be similarly prohibited from ac-
quiring rights in land in the Republic of Korea by executive order.
Aliens and alien juridical persons are also prohibited from acquiring
real rights in areas designated as vital for National security purposes,
except on permission of the Minister of National Defense. Much of the
land in larger cities is so designated. These restrictions do not apply
to the ownership of buildings which, under Korean law, may be-transferred
separately from the land to which they are attached.
Medical Practitioners
An alien desiring to qualify for medical practice in Korea must be a
graduate of a medical or dental college of a foreign country and have a
medical license issued by the foreign country and must, in addition, pass
the Korean National Medical examination.
9.
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Mining rights may be only held by Nationals of the Republic of Korea;
juridical persons established under Korean law providing more than one-
half of the capital investment and more than one half of the voting rights
belong to Korean Nationals; and alien juridical persons specifically
authorized by the Government of the Republic of Korea and consented to
by the House of Representatives.
Nationality
A citizen of Korea who acquires the nationality of the alien spouse
on marriage forfeits Korean citizenship. The same provision applies to
F a Korean citizen adopted by an alien. Birth in Korea does not confer
citizenshiO.unless:
a. Father is a Korean at the time of childts birth.
b. Bother is Korean and father unknown.
c. Child born of unknown or stateless parents.
d. Foundling.
Trade Marks
Aliens who do not possess legal or business permits in Korea are
not eligible to acquire trade mark rights unless in the absence of Treaty
provisions providing to the contrary.
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ASSIGNMENTS
Any right, claim, or chose in action may be assigned unless pro?
hibited by law. A contract of assignment vests full title and interest
in the assignee. Assignments of immovable properties are not valid against
third parties unless registered at the Land Registration Office.
Assignments of movable property are not valid against third parties until
dalivory is made. The assignment of a nominative debt cannot be set?up
against the debtor' or any third person unless the assignor has given
notice thereof to the debtor or the debtor has consented thereto. The
assignment of a debt payable to order cannot be set?up against the debtor
or any third person unless the instrument of debt is delivsmed to the
assignee with the assignment indorsed thereon.
(Asp see Conflicts and Application of Laws, this Digest)
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ATTACHIENTS
Attachments may be made by mart order upon proof that satisfaction
of a judgement will otherwise be extremely difficult. An attachment
may be dissolved by furnishing cash security or upon showing a change of
? circumstances.
at
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ATTORNEYS
JURISDICTION OVER ADHISSION
The Minister of Justice has jurisdiction over the admission of
attorneys and the entry of their names in the register of lawyers. The
Bar of Korea is not integrated.
ELIGIBILITY
Any adult citizen of Korea who attains the status of a probational
lawyer by passing the Judicial Examination for Higher Officials may be
admitted to practice law if he: (a) completes a one year apprenticeship
followed by an examination given by the Ministry of Justice; or, (b)
serves 2 years in the Legal Section of one of several governmental
agencies; or, (c) teaches law in an authorized law school for-2 years as
a professor or assistant professor. In addition, a person qualified to
be a judge or prosecutor may also be admitted to practice law.
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ALIENS
An attorney of a foreign country may be admitted to practice law
in Korea upon application filed with the Minister of Justice_provided
the country of the alien grants reciprocal privileges to Korean
attorneys. Foreign attorneys may only handle matters involving foreign-
ers or foreign law.
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BANKRUPTCY
An alien or alien corporation is granted the same rights in relation
to bankruptcy as the country of the alien or alien corporation grants
to citizens ,if Korea. An adjudication of bankruptcy in Korea affects
only property of the bankrupt in Korea and bankruptcy in a foreign
country does not affect property situated in Korea. When a debtor be?
comes insolvent, the court may declare him a bankrupt on application of
either the creditor or the debtor. Bankruptcy is presumed where the
debtor ceases to pay his debt. Corporations may also be declared bankrupt"
not only for insolvency, but in case their debts exceed their assets,
on application of the directors, manager or a liquidator.- Secured
claims are protected and certain privileged claims are recognized.
After an adjudication of bankruptcy is made, trustees are appointed and
claims are paid proportionately out of assets unless a conpulsory
settlement is proposed by the bankrupt and agreed upon.
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BANKS
The Bank of Korea is designated by law as the Central Bank for the
Republic of Korea. It is authorized to issue Bank notes; rediscount
notes of other Banks and to establish Bank rates for loans and deposits.
It acts as depositary for other banking institutions and for government
funds. The Bank also maintains a Foreign department to handle Foreign
Currency deposits and transactions.
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The Reconstruction Bank of Korea is largely concerned with long
term loans for rehabilitation purposes.
There are four commercial Banks with numerous Brancheu throughout
the country - the Hungop Bank; the Savings Bank of Korea; the Commer-
cial Bank; and the Cho Hung Bank.
There are no foreign Banks or Branches of foreign Banks in Korea
at the present time, except a Branch of the Bank of America handling
UNC personnel deposits only.
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BILLS AND NOTES
BILLS OF EXCHANGE
Must contain words indicating that the instrument is a "Bill of Ex,-
changeft and must be signed by the drawer. Other essentials are:
a. an unconditional order to pay a fixed sum of money.
b. names of the drawee and payee.
c. specified time and place for payment.
cr. date and place where drawn.
PROMISSORY NOTES
Must contain words indicating that the instrument is a "Promissory
Note" and must be signed by the maker. Other essentials are:
a. an unconditional order to pay a fixed sum.
b. a specified time and place of payment
c. name of the payee
d. date and place of issuance.
CHECKS
Must contain words indicating that the instrument is a "Check" and
must be signed by the drawer. Other essentials are:
a. an unconditional order to pay a fixed sum
b. name of the drawee
c. designation of the place' of payment
d. date,and place where the check is drawn.
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BILLS AND NOTES (continued)
GENERAL
Unless otherwise provided by law, Bills, Notes or Checks are void
unless they contain the particulars enumerated above.
Bills of exchange, promissory notes and checks are negotiable in?
struments and a person signing a negotiable instrument is liable in
accordance with the tenor thereof.
Korean law on Bills, Notes and Checks conforms with the Geneva
Internatiohal Convention of Uniform Law, 1930.
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CIVIL AFFAIRS
MILITARY
By invitation of the President of the sovereign Republic of Korea,
the United States and other UN countries landed troops in Korea in
response to the UN call for Arms on 27 June 1950. On 7 July 1950 the
UN designated the United States as the Unified Command. On 13 July
1950 the ROK waived criminal jurisdiction over U.S. Forces and gave than
authority to arrest Koreans known to have committed crimes against the
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U.S. Forces or their members on condition that such persons should be
turned over to the ROK civil authorities as soon as possible. On 14
July 1950, Korea placed its army under the Command of the Unif:ed
Commander, General MacArthur. There is no overall civil affairs agree-
ment defining the privileges and immunities to be accorded U.S. or UNC
troops. In the absence of such an agreement, it appears that UNC/ROK
relations have been governed by concepts of international law bearing
upon the rights and privileges to be accorded friendly troops on foreign
soil by invitation of the sovereign.
ECONOMIC
CINCUNC assumed control of the economic aid program in Korea when
ECA phased out on 7 April 1951. Due to the uncertain military situation,
CINCUNC still has responsibility for relief, rehabilitation and economic
stabilization in Korea with funds supplied by the International Cooperatio
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Administration (ICA), which is represented by Mr. W. E. 'Warne who is
also designated as deputy CINCUNC and CINCREP on the Combined Economic
Board. The Combined Economic Board arises out of the Meyer Agreement
signed 24 May 1952 (amended 14 Dec 1953) between the United States_ acting
for the Unified Command and the ROK. This agreement as amended constit-
utes the basic agreement for the coordination of economic matters be-
tween the UNC and the Republic of Korea.
The other major agency furnishing funds for the rehabilitation of
korea is the United Nations Reconstruction Agency (UNKRA) which was
created by the UN on 1 December 1950 and commenced operations in Korea
on 1 June 1951. On 21 September 1951 the UN negotiated an agreement
with the Korean Government on privileges and Immunities to be accorded
UN agencies and officers. This agreement does not extend to UNC
military elements. An agreement concerning the expenditure of funds by
UNKRA was negotiated with the ROK on 31 Nay 1954. The agent: General
.of UNKRA is Lt. General John B. Coulter, USA (Ret)
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CONFLICT OF LOS AND APPLICATION OF LOS
ADOPTION
The conditions of adoption are determined as to each party concerned
by the law of his or her home country, and as regards the validity of
adoption or dissolution of adoption, the law of the home country of the
adopting parent governs.
ASSIGNMENTS
As regards the validity of an assignment of an obligation vis-a-vis
third persons, the law of the place of the debtor's domicile is followed.
CAPACITY
The capacity of a person is determined by the law of his home country.
An alien doing a juristic act in Korea who is of full capacity according
to Korean law is regarded as a person of full capacity notwithstanding
this provision. The foregoing provision does not apply to juristic acts
to be done under the Law of Relatives or the Law of Succession or to
juristic acts relating to immovables situated abroad.
CUSTOMS
Customs which are not contrary to public order or to good morals
have the same force as law in so far as they are recognized by the pro-
visions of laws and ordinances or relate to matter's which are not pro-
vided for by laws or ordinances.
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DEATH , PRESUMPTION OF
Tn case it is uncertain whether an alien is alive oi dead, the Court
may adjudge him to have disappeared according to Korean law, but only
in so far as it concerns his property in Korea or his legal relations
subject to Korean law.
DIVORCE
Divorce is governed by the law of the home country of the husband
at the time of the occurrence of the fact forming its cause. But the
Court can make no adjudication of divorce unless the fact forming its
grounds also constitutes a grounds for divorce according to Korean law.
DOMICILE
In case the law of the place of the domicile of a party is to
govern, if his domicile is unknown, the law of the place of his residence
governs.
The provisions of paragraph a and c under NATIONALITt (supra) apply
correspondingly in case the law of the place of the domicile of party is
to govern.'
GUARDIANSHIP
Guardianship is governed by the law of the home country of the ward.
The guardianship of an alien domiciled or resident in Korea isgoverned
by Korean law only When there is no person 'to undertake the functions of
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O.
a guardian or when he has been adjudged incompetent in Korea._
ILLEGITAMCY
Whether a child is legitimate or not is determined by the Dna of
the country to which the husband of its mother belonged at the time of
its birth. If the husband has died previous to the birth of the child,
the law of the country to which he last belonged governs.
The conditions of acknowledgment of an illegitimate child are
determined as regards its father or mother by the law of the country to
which the father or mother belonged at the time of acknowledgment; and,
as regards the child,by the law of the country to which it belonged at
the time of acknowledgment. As regards the validity of acknowledgment,
the law of the home country of the father or mother governs.
INCOMPETENCY
As regards the causes for which a person may be adjudged incompetent
the law of his pome country governs; and as regards the effect of such
adjudication, it is determined by the law of the country where the
adjudication has been made. With regard to an alien domiciled or resi-
dent in Korea, should a cause exist for which he is to be, adjudged in-
competent according to the law of his home country, the Court may adjudge
him incompetent. This does not, however, apply if such cause 4s not
recognized by the Korean law. These provisions apply correspondingly
to quasi-incanpetency.
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JURISTIC ACTS
As regards the formation and effect of a juristic act, the question
as to the law of which country is to govern is determined by the intention
of the parties. In case the intention of the parties is uncertain, the
law of the place where the act is done shall be followed.
The form of a juristic act shall be determined by the law governing
the effect of such act. Formalities in accordance with the law of the
place of the act are valid notwithstanding this provision. This does
not, however, apply to juristic acts either creating or disposing of
real rights or other rights which require registraticn.
As regards an expression of intention made to a person residing
in a place governed by a different law, the place from which notice of
the same is dispatched is regarded as the place of the act.
As regards the formation and effect of a contract, the place from
which the notice of the offer is dispatched is regarded as the place of
the act, In case the recipient of the offer is ignorant, at the time
of his acceptance, of the place from which the offer was dispatched,
the place of the offerer' s domicile is regarded as the place of act.
Real rights relating to movables, and immovables and other rights
which require to be registered aro governed by the law of the place where
their subject matter exists. The acquisition or loss of rights is
governed by the place Where their subject matter exists at the time
when the fact forming the cause of the said acquisition or loss is
cowipleted.
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The formation and effect of obligations due to business management
unjust enrichment or unlawful acts are governed by the law of the place
where the facts forming the cause of such obligations have occurred.
This provision does not apply to unlawful acts in case the facts
occurring in a foreign country are not unlawful according to Korean law.
Even when facts occurring in a foreign country are unlawful according
to Korean law) the injured person can assert no claim for compensation
for damage and other measures (remedies) except such as are recognized
by Korean law,
MARRIAGE
The conditions of formation of a marriage are determined in respect
to each party by the law of his or her home country) but as regards
form) the law of the place of celebration of the marriage governs.
The effect of a marriage is determined by the law of the home
country of the husband.
MORALS, FOREIGN LAW VIOLATES
In case the law of a. foreign country is to govern) it shall not
govern if its provisions are contrary to public order or good morals.
NATIONALITY
a. Dual
In the case of dual nationality when the law of the home countr:
of a party is to govern; the law of his home country is that of the
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country whose nationality he last acquired. But in case one of the
several nationalities is Korean, the Korean law is followed.
b. Stateless
As regards a person who has no nationality) the law of the plac
of his domicile shall be regarded as the law of his home country.
When his domicile is unknown the law of the place of his residence is
follow-ed.
c. Fedeval States
With regard to a person belonging to a country whose various
districts (states) are subject to different laws, the law of the
district to which he belongs governs.
PARENT AND CHILD
The legal relations between parent and child are determined by t#e
law of the home country of the father, or in case of the father being
non-existent, by the law of the home country of the mother.
The duty of support is determined by the law of the home country
of the person bound to furnish support.
Apart from the matters mentioned in the preceding Articles,
family relationship and the rights and duties arising therefrom are
determined by the law of the home country of the parties concerned.
RENVOI
In case the law of the home country of a party is to be followed,
then if Korean law is to govern according to the law of such country,
the Korean law shall goverh, '
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SUCCESSION
Succession is governed by the law of the home country of the
ancestor.
WILLS
As regards the formation and effect of a will the law of the
home country, at the time of its formation, governs. The revocation
of a will is governed by the existing law of the home countr-y of the
?
testator.
The foregoing provision does not prevent the law of the place
of the act to be followed as regards the form of a will.
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CONSTITUTION AND GOVERNMENT
Korea was annexed to Japan on 29 August 1910, liberated on 15 August
1945 and occupied by United States Force from 6 September 1945 to 15
August 1948. Korea received its first constitution on 17 July 1948, On
20 July 1948 the National Assembly elected Mr. Syngman Rhee the first
President, and on 15 August 1948 the Republic of Korea was proclaimed.
The constitution provides for three separate branches of government; the -
Executive, Legislat Lye and Judicial. The Constitution was first amended
on 4 July 1952 to provide for direct election of the President and creation
of an upper house (not yet organized) to the Legislature. The constitu-
tion was again amended on 29 November 1954 to (a) provide a national
referendum on matters perttining to national Crises, (b) eliminate the
office of Prime Minister, (c) limit elections of other than incumbent
Presidents and Vice Presidents to two terms and, (d) limit government
control over private property and to encourage free enterprize.
A National Assembly of 2 houses is the supreme law making agency
of the Republic. The National Assembly may, by a vote ef non-confidence,
cause the removal of a member of the State Council, a policy making group
appointed by the President. Heads of Ministries, of which there are
twelve, are appointed from the State Council.
At present, the Ministries consist of Foreign Affairs, Home Affairs,
Finance, Justice, National Defense, Education, Reconstruction, Agri-
culture, Couu erce and Industry, Public Health and Social Affairs, Trans-
pertation,and Communication.
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0, ri
South Korea is divided into 9 Provinces and the Special City of
Seoul. The governors of the Provinces and the Mayor of Seoul are appoint?
ed by the President, but there is some measure of self government at the
provincial and city levels in the nature of elected councils which
exercise limited legislative powers.
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CONTRACT
A contract is a legally enforceable agreement between two or more
persons to do or forebear something. An offer specifying a certain
period for acceptance cannot be rsvoked but lapses if the offeree does
not receive an acceptance within the period specified. An acceptance
dispatched to arrive in normal time but unavoidably delayed will bind-the
offeror if he knew of such delay and failed to inform the offeree of the
late arrival. Delayed acceptance or conditional acceptances are deemed
to be new offers. One who advertises a reward is liable to one who
performs the act. One of the parties to a bilateral contract may refuse
to perform his obligation until the other has tendered performance of
his obligation if due. When the transfer of a real right over a specific
thing is made the object of a bilateral contract and the thing is lost
or damaged by any cause for which the obligor is not responsible, such
loss or damage is borne by the obligee.
A third-party beneficiary-of a contract may demand performance-
directly from the obligor when he declares to the ebligOr his intention
to accept the benefit of the contract.
If a par to a contract fails to perform his obligation under the
contract, the other party may fix a reasonable time for performance and
thereafter may rescind the contract if peformance is not completed. A
party entitled ttrescission must, if requested by the other party, elect
to rescind or forfeit his right. A contract of gift becomes effective
when one party declares his intention gratuitously to transfer property
of his own to another party and the other party agrees to accept it. An
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exedutory contract of gift may be revoked by either party unless the
contract is in writing.
The Civil Code provides special provisions for a number of specific
forms of contracts such as gift, sale, exchange, loan for consumption,
loan for use, lease, employment, contract for work, mandate, deposit,
life annuity and compromise.
(Also see Conflict and Application of Laws, this digest)
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1
COPYRIGHT
The author of works belonging to the domain of writing, speech,
drawing, painting, architecture, sculpture, models, photographs, per-
formances, songs and other forms of literature, science or art (including
music) .has a Monopiy on the right to effect reproduction of his work.
Copyright of dramatic works and musical compositions includes the right
of public performances. Copyrights may be assigned.
Copyright of a work published or publicly performed lasts during
the life of the author and for thirty years after death. Copyright of
a work first published or publicly performed after the death of its
author lasts for thirty years from the time of such publication or public
performance.
Copyright of an anonymous or pseudo-anonymous author lasts for
thirty years from the time of publication or public performance. Copy-
right of a work published or publicly performed by an author which is a
government or public office, school, shrine or temple, association,
company or any other organization lasts for thirty years from the date
of publication or public performance. If the owner of a copyright does
not publish a translation within ten years from the time of publication
of the original work, his right of translation. ceases to exist. The
following works may not be the subject of copyright:
1. Laws, ordinances and government documents
2. Miscellaneous reports and articles reporting current events
published in a newspaper or magazine.
3. Speeches made in courts, national assembly or assemblages or
political meetings open to the public.
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v
Copyright is created without registration or any other formality, but
succession, assignment or pledge or copyright may not be set-up against
a third person without registration thereof. A translator is deemed as
an author and enjoys protection under the law of copyright. Copyright
als6 exsits on reproduction by cinema, radio, gramaphone and photographs.
Copyrights of aliens are similarly protected unless provided otherwise
by treaty,
A person who infringes a copyright is liable for the damages caused
thereby. A person who imports a pirated work for
in this country is deemed a pirated author. When
criminal prosecution has been filed in respect to
court may, on the application of the plaintiff or
sale or
a civil
circulation
action or a
a pirated work, the
prosecutor, provision-
ally suspend sale or circulation of the work and suspend the public
performance of the work which is suspected of being pirated,
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I.
CORPORATIONS
(Juridical Persons)
There are three types of juridical persons under Korean law:
1. Non-profit organizations such as Associations and Foundations,.
engaged in charitable enterprizes, religion, and matters pertaining to
science etc.
2. Profit-making companies:
a. Incorporated Partnership (Similar to U.S. partnerships in
which members are jointly and/or severally liable for
obligations.
b. Incorporated Limited Partnership (Composed of partners with
limited and unlimited liability).
c. Joint Stock Company (Similar to U.S. Stock Corporations in
which liability of shareholder is limited to face value of
his shares).
d. Joint Stock Limited Company (Composed of members with un-
limited liability and ordinary share holders. This type of
organization is unknown in Anglo-American Law).
3. The third type of juridical persons are those organized for
special purposes by special law, such as the Dai Han Coal-Corporation.
All juridical persons must register and record certain general in-
formation concerning organization etc., at the seat of their principal
office as well as at the seat of every Branch.
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With the exception of trading companies, foreign juristic persons
are recognized except as provided by law. Foreign corporations which
establish branches in Korea must make the same registration as the type
of Korean juridical person which they most nearly resemble.
Alien controlled corporations may not acquire mining rights or
vested property unless specifically authorized and may not acquire title
to land in areas designated as vital to National, Defense except by
permission of the Minister of National Defense, Much of the land in the
larger cities is so designated. The restriction does not apply to
buildings which Vnder Korean law may be owned separately from the land.
Apart from the foregoing restrictions foreign firms in general are subject
tt, the same provisions of law as Korean firms.
There are provisions under the Civil Code for the establishment of
partnerships not having the status of juridical persons. Such partner-
ships are based on contracts and registration is not required as in the
case of partnerships having juristic status as provided in the Commercial
Code,
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COURTS
The courts of Korea comprise the Supreme Court consisting of 9
members including a Chief Justice, three High Courts and nine District
Courts with thirty-seven branches.
The Supreme Court is the court of last appeal on questions of law
and rulings in civil and criminal cases. The Supreme Court lacks the
power to declare laws unconstitutional. Such power is vested by the con-
stitution in a Constitution Committee, an extra-judiciary body, consisting
of the Vice President as chariman, five members of the supreme court,
three members of the House of Representatives and two members of the House
of Councillors. The court also has appellate jurisdiction over Patent
Bureau decisions and Court-Kartials and has original jurisdiction in
ff
several cases as prescribed by law.
The High Courts have appelate jurisdiction over the District Courts
and conduct trials to move on appeals against civil and criminal judgments
of the District Courts, The High Courts exercise original jurisdiction
over cases involving appeals from administrative rulings by governmental
agencies and bureaus.
The District Courts are the Chief trial courts. The district courts
ordinarily hear cases with a single judge but in serious criminal cases
and certain civil cases, trials are heard by a collegiate court consisting
of three district court judges. In addition to the 37 District Branch
courts there are four Juvenile Branch courts which excercise jurisdictiod
over accused under the age of 20. The district courts also perform
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I.
certain non-judicial functions in connection with the Registration of
land, family and commercial registration.
There are several other tribunals which are not part of the judicial
organization;
a. Courts-martial excercise exclusive jurisdiction over militp.ry
personnel, subject to appeal to the Supreme Court.
b. Prize Courts and Higher Prize Courts have jurisdiction over
prize cases in accordance with treaties and the generally
recognized rules of international law. There is no provision
for appeal to the Supreme court.
c. The Patent Bureau has jurisdiction over patent and trademark
disputes. The party aggrieved may appeal to the Suprema
Court only on the grounds that the decision of the Patent
Bureau was against the law or regulation,
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CRIMINAL LAW
The main soiirce of Criminal Law is the Criminal Code which contains
general provisions applicable to all crimes and specific provisions de-
fining about 200 common crimes. A Minor Offense law defines about 45
petty crimes. Crimes referred to as statutory crimes in Anglo-American law
are to be found in the penal provisions of various Administrative laws,
decrees and ordinances such as the Customs Law (smuggling etc); Tax Laws
(tax frauds etc); Foreign Exchange Control Laws (monetary violations.
The Civil Code and the Commercial Code also contain some penal provisions.
The Criminal Law applies to both Koreans and aliens who, commit
crimes within the territory of Korea. Aliens are also diminally liable
for acts committed outside the territory of Korea concerning (a) in-
surrection, (b) foreign aggression, (c) national flag, (d) currency, (e)
securities and postal violations, (f) false official documents, and (9)
illegal use of public seals.
The acts of persons who are mentally deficient or under 14 years of
age are not punishable. If the crime so requires, specific intent must
be shown. Self-defense and acts of self-preservation may be used as
defenses to a crime. Attempts and conspiracies to commit crimes are
punishable. Special punishment is provided for repeated offenders.
? r.
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Punishments range from capital punishment (hanging) down to con-
fiscation. In between are penal servitude, imprisonment, loss of civil
rights, fines, detention and minor fines. Loss of civil rights involves
the right to (a) become a public official, (b) vote, (c) engage in certain
public enterprizes, and (d) become a director, etc., of a business cor-
poration. The extent of punishment is governed by the (a) ag4 and
environment of the offender, (b) relation to the injured party, (c)
motive for the crime, and (d) the post-crime conduct of the accused.
In minor cases the pronouncement of sentence may be suspended and in
more serious cases the sentence may be suspended pending good behaviour
for a fixed period.
Prisoners are eligible for parole after serving 10 years of a life
sentence or one third of a limited term. In case of parole, the
original sentence shall be deemed to have expired after 10 years in the
case of a life sentence and the remaining part of a limited term pro-
vided of course that the parole has not been nullified or revoked.
Several unusual features.cof the Criminal Code are to be noted.
Fires caused as a result of negligence are punishable by fine and im-
prisonment. Adultery may only be prosecuted on complaint of the
offended spouse. Both the adulterer and his partner are punishable.
Gambling, except for momentary pleasure, is prohibited. Murder by
request or consent of the deceased is punishable by penal servitude for
not less than one year nor more than 10 years. Neither prostitution
nor fornication is an offense under the Code, (Public Act #7, KILA, 14
Nov. 1947 prohibits prostitution).
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One who abandons a person in need of Ilelp by reason of old age,
infahcy, illness, etc., when there is an obligation by law or contract
to proVide protection,may be sentenced to three years imprisonment.
Rape is punishable by not less than three years imprisonment and one
who has sexual intercourse with a fepale who has lost consciousness or
the power to resist is guilty of quasi?rape. Sexual intercourse ob?
tained through false prdmise of marriage is punishable. The statutory
age for rape is 13 years. A person who gains an unjustifiable profit
by taking advantage of the needy condition of another person is
punishable by imprisonment up to three years.
NOTE: See Criminal Procedure
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CRIMINAL PROCEDURE
The constitution of Korea guarantees that no citizen shall be
arrested, detained, searched, tried, punished or subjected to compulsory
labor except as provided by Law. The Constitution further provides
that, except in case of flagrante delicto or where there is danger of
escape or that evidence may be destroyed, a warrant shall be obtained
prior to arrest, detention or search. A person arrested or detained
has the right to counsel and Habeas Corpus is guaranteed. No citizen
may be tried twice for the same crime and a person may not be tried
for a crime unless such act constituted a crime prescribed by law at
the time it was committed. A defendant found not guilty of a crime for
which he has been detained shall have the right to claim compensation
from the government.
A person suspected of having committed a crime may be summoned
before (a) a judicial police official, (b) a public prosecutor , or (c)
before the court directly. The suspect may remain silent. If the
judicial police official or the public prosecutor have reason to believe
that a supmoned suspect has committed a crime, they may obtain a
warrant for his arrest and detention. Judicial police officials may
only detain a suspect for 10 days after which time the suspect must be
released or turned over to the competent public prosecutor. The pro-
secutor must initiate public action within 10 days (a renewal period of
10 days for cause may be granted) er release the suspect. An arrested
person or his representative may immediately petition a court to deter-
mine the legality of an arrest. An accused who is summoned directly by
the court may be detained if he is reasonably suspected of having
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committed a crime and (a) has no fixed dwelling, (b) may destroy
evidence, or (c) may attempt to escape. A person produced in court
must be released within 24 hours if it is not necessary to detain him.
Prior to detention the court will grant such a person an opportunity
to be heard. An accused may not be detained without trial for longer
than two months subject to two renewals for a similar period by ruling
of the court. An accused who is under detention may request bail which
ordinarily-will be granted after indictment unless the accused is
guilty of a capital offense or an offense punishable by imprisonment for
10 years or more. Bail may also be refused if there is reason to fear
the accused may escape or destroy evidence or if the accused has no
fixed dwelling.
Trials are conducted in open court, without juries, before one or
more judges, in the Korean language. The court Ncill furnish an inter-
preter for those who do not understand Korean. The indictment must be
served on the accused at least five days prior to the date set for
trial. The accused has a right to counsel and to be confronted by the
witnesses against him if they are available. Contrary to Anglo-American
jurisprudence the judge initially examines all witnesses and the
accused. A solemn oath is signed by all witnesses prior to giving
testimony. An accused is not sworn.
The whole or part of the costs of trial may be charged to the
defendant.
Public actions may not be instituted after a certain lapse of time
depending on the nature of the crime, e.g., 15 years for a capital
offense and one year for a crime punishable only by loss of civilian
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rights; Any person may press fOr the issuance of a complaint when the
public prosecutor declines to do so, and the court will appoint an
advocate from among those representing the complainants to excercise,
ex officio, the duties of public Prosecutor in such a case, if a com-
plaint issues.
In the event of pronouncement of guilt, the judge must inform the
accused as to the time for any appeal and the court to which appeal may
be made. Either the prosecutor or the defendant may appeal. Appeal
from the district court to the Hight Court must be made within seven
days, The High Court may dismiss an appeal or after hearing the
evidence may quash the judgement of the lower court and enter a new
judgement. Where the appeal has been made by, or on behalf of) the
accused no penalty more severe than that imposed by the district
court shall be made. An appeal on questions of law may be made to the
Supreme Court within seven days after judgement by a High Court or from
a Distrist Court when appeal to the High, Court has been waived.
New trials may be had on the basis of newly discovered evidence,
e.g., fraud, etc.
When a fine, minor fine or confiscation is to be imposed 1 a public
prosecutor may request the court to issue a summary order without
ordinary trial proceedings. An application for formal trial must be
made by an accused within seven days Sfter the court has issued the
summary order or he is pre6umed to have waived such right.
In capital cases, the death penalty is executed by order of the
Minister ,of Justice, Execution of penal servitude, imprisonment, de-
tention or arrest may be suspended by the Public Prosecutor because of
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C.
the age, health or responsibilities of the accused. Penalties imposed
against juridical persons may be executed against the successor cor-
poration in the event of amalgamation.
Criminal trials under Korean procedure differ considerably from
trials in Anglo-American countries. In the latter countries when a
case is reached for trial it generally continues uninterrupted until
all the evidence is heard at which time the judge or jury announces the
finding, and sentence is pronounced. Under Korean procedure, highly
involved criminal case will generally extend over several or more months
with brief hearings at various intervals. No transcript of the pro-
ceedings is made, but a clerk summarizes the evidence which becomes
a part of the protocol of the case. The reason for repeated delays
during the taking of evidence is attributable to the fact that the
judge takes an active part in conducting the trial and requires time
to prepare "his" case before each witness. This system is in direct
contrast to the Anglo-American system of trial procedure in which the
judge plays a passive roll, allowing the prosecutor and defense counsel
to conduct the entire case.
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DEATH
If it is unknown for 7 years( years in certain calamity-associated
disappearances) *ether an absentee is dead or alive, the court .may on
application of any person interested, make a judicial declaration of
disappearance effective at the expiration of the period concerned.
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DEEDS, LEASES AND REGISTRATIONS
Deeds must be signed and sealed and contain a description of the
matter to be transferred. A deed, when executed, is binding between
the parties but must be registered to put third parties on notice.
Ownership of land does not include ownership of the buildings. Land
and buildings are owned, conveyed, mortgaged and leased separately
and registered in separate books in the Registry Offices. The follow?
ing instruments may be registered:
1. Transfer of ownership
2. A superficies
3. An emphyteusew
4. Servitudes
5. A preferential right
6. Pledges
7. Mortgages
8. Leases.
The duration of ordinary leases may not exceed 20 years and .he
lease may provide for renewal.
ii
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DEPOSITIONS
Depositions to be used in U.S. Courts are usually taken in Korea
before U.S. Consular Officers. Witnesses must voluntarily appear for
interrogation. Complete instructions should accompany the papers in
regard to signatures, oaths, stenographic assistance, etc.
The present schedule of fees is $10.00 for depositions not exceeding
500 words and .500 for each additional 100 words. These fees do not
cover the cost of a clerk, typist or stenographer. Fees for copies are
the same as for originals. Fees must be paid in advance and any e:Aless
will be returned,
Where special circumstances exist,. testimony to be used in civil
or criminal oases in Korea may be preserved.
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DESCENT AND DISTRIBUTION
Succession to property is governed in accordance with the customary
law. A multiple system of succession, depending on the status of the
deceated, is presently in effect.
If the deceaSed is the head of the family, succession is determined
a s follows:
1. An only son takes the entire estate.
2. If there are two sons, the elder son takes the entire estate
but the younger son may claim from him one-third of the estate.
3. If there are more than two sons, the elder son takes the
entire estate, but the other sons may claim from him one-
half of the estate to be divided equally among them.
4. If there are no sons or illegitimate son, an adopted son takes
the entire estate,
5. If there is no adopted son, then the order of succession is
(a) grandmother, (b) mother, and (c) the wife of the deceased
head of the family.
If the de.cea,ed is a married male member of a family (not head of
house) his property is divided equally among his children. If there are
no children the estate goes to the wife of the deceased.
If the deceased is an unmarried male (not head of house), the 'pro-
perty goes to the lineal ascendants in the following order (a) father,
(b) mother, (c) grandfather, (d) grandmother, and (e) the head of the
family.
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In the case of the death of a married female, (not head of house)
her estate goes to her children and, if no children, then to her
husband. If the female is a second wife, the children from the first
wife and second wife succeed jointly to the estate; but, if there are
no children, then to tlre husband.
The eldest son of the head of a house succeeds to the position of
head of house upon death of his ancestor. Younger brothers may estab?
lish their own family upon marriage and become head of the newly
formed family group. Successors assume the debts of the person from
whom they inherit.
(See also Conflicts and Application of Laws)
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0+
DIVORCE
There are two kinds of divorce under Korean Law - consent
divorce and judicial divorce.
Consent divorces may be effected by agreement of both spouses,
provided the parents of the couple and the family chiefs also approve.
Custody of children shall vest in the father unless otherwise
agreed. 1,s to aliens, divorce is governed by the law of the husbandts
country at the time when the facts constituting the grounds for divorce
arose; but the court cannot decree a divorce, unless the facts con-
stituting the grounds for divorce are also recognized by Korean Law.
An alien may only obtain a consent divorce if consent divorces are
recognized by the law of his country. Consent divorces become effect-
ive by filing a notification of divorce with the registry officials.
Judicial divorce may be obtained by either spouse upon the follow-
ing grounds:
1. Bigamy
2. Adultery of wife
3. Where the husband has been sentenced for a crime concerning
illicit intercourse
4. Where the other spouse has been charged with more than a
minor crime
5, Where a spouse has been treated with such cruel.by as to
make cohabitation intolerable or has been offered grave
insult
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6. Malicious desertion
74 Cruel treatment or grave insult by any of the lineal
ascendents of the other spouse
E. Cruel treatment or grave insult to any of the lineal
ascendents of Lipeuse by the other spouse
9. When it is unknown for three years whether the spouse is
alive or dead.
(See also Conflicts and Application of Laws, this Digest)
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tr
EXECUTION
Execution upon final judgement may be had by enforcing (1) an
obligation to pay money, (2) an obligation to transfer certain objects,
and (3) an obligation to do or refrain from doing a certain act. In
order to satisfy a judgement, any property belonging to the judgement
debtor may be seized. Immovables are sold at public auctions.
Fraudulent sales and conveyances may be voided. Certain necessities
of life, religious objects, etc., are exempt from execution.
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EXECUTION
Execution upon final judgement may be had by enforcing (1) an
obligation to pay money, (2) an obligation to transfer certain object3,
and (3) an obligation to do or refrain from doing a certain act. In
order to satisfy a judgement, any property belonging to the judgement
debtor may be seized. Immovables are sold at public auctions.
Fraudulent sales and conveyances may be voided. Certain necessities
of life, religious objects, etc., are exempt from execution.
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FOREIGN EXCHANGE CONTROL
The legal currency is the HWAN (H14). On 15 August 1955 Korea
established a single exchange rate system with the HWAN pegged at
500 to one U.S. dollar. All foreigners entering Korea must surrender
foreign exchange and negotiable instruments to the Bank of Korea. Such
exchange may be deposited to the general account of the Bank of Korea
and withdrawals at the-rate of 500 HWAN for one U.S. dollar may be
made during the foreigners stay in Korea. Sterling and Hongkong
dollars are converted at their U.S. dollar value. Upon departure
from Korea foreigners may withdraw the currency of deposit any bal-
ance remaining in their account. Foreign Exchange Sales Certificates
are issued for the recording of such transactions.
The following transactions are prohibited unless specifically
authorized by the Ministry of Finance.
a. Any transaction in which any person or political entity out-
side of Korea has any interest, direct or indirect.
b. Any transaction which involves property of any of the following
types, owned, held or controlled by any person or political entity in
Korea:? (1) Property (or evidence thereof) located outside of Korea.
(2) Money not legal tender in Korea.
(3)
Securities, negotiable instruments and other evidences of
ownersttip or indebtedness, wherever located, expressed or payable in
moncly not legal tender in Korea, or issued or created by, or constituting
or assetted to constitute an obligation of a person or political entity
outside of Korea.
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(4) Claims or evidence thereof, wherever located, against any
person or political entity outside of Korea, or expressed in money
not legal tender in Korea
(5) Property, wherever located, in which a person or political
entity outside of Korea has any interest of any nature whatsoever,
direct or indirect.
64 Any transaction for the purpose, or which has the effect of,
evading or avoiding any of the foregoing prohibitions.
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FOREIGN TRADE
The basic principle underlying foreign trade is that exports must
pay for imports. Except for a limited number of items, licenses are not
required for imports or exports. Matters pertaining to imports are
handled by the Bank of Korea while the Customs Bureau has administrative
control over exports. Foreign exchange to finance imports is obtained
from the (a) ROK Government which conducts periodic sales of foreign
exchange on a "first come" basis, (b) foreign exchange realized from
exports, (c) remittances from abroad (missionaries, etc.), and (d)
through funds furnished by UNKRA and ICA for certain Government approved
private imports.
The conduct of foreign trade has been stimulated by tge,conclusion
of a treaty of friendship, commerce and navigation with the U.S. The
lack of an adequate foreign investment law is somewhat of a hinderance
to the further development of foreign trade.
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4.
FRAUDS, STATUTE OF
Korea has no specific Statute of Frauds, but certain corporate
instruments must be in writing.
Executory contracts of gift may not be enforced unless reduced to
writing.
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?
GARNISHMENT
Claims of a debtor for payment of sum of money or for the
delivery of corporeal things or negotiable instruments may be
attached by means of a court order. Salary due or to become due to
a debtor may be garnished.
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.4-
National Holidays are: *
1 March
17 July
15 August
3 October
HOLIDAYS
Independence Movement Commemoration Day
Constitution Day
Liberatioh/Independence Day
National Origin Day
In addition, the following days are declared to be official Holidays la
Presidential Decroe4
1,2,3 January
5 April
6 June
August (variable)
9 October
24 October
25 December
National Celebration Days
Planting Day
Memorial Day
Thanksgiving Day (Lunar Calendar - Falls on Mid-
Autumnal Full Moon)
Korean Alphabet Anniversary
United Nations Day
Christmas Day
* When the last day for the performance of a legal obligation or function
falls on a National Holiday or a Sunday, the time is extended through the
following day.
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HUSBAND AND WIFE_
A wife enters her husband's house by reason of marriage and is
under a duty to live with her husband. Husband and wife are under a
duty to support each other. In case a wife is a minor, her husband,
if of full age, is her guardian.
Prior to marriage a husband and wife may provide for a property
relationship different from that fixed by law. The husband bears
all expenses of the married life; but if the wife is the head of the
house she bears them. The husband or the female head of a house has
the right to use and to take the profits of the property of the
other spouse in conformity with its ordinary use. The husband
manages the property of his wife, but if the husband is unable to
manage the property, the wife manages it herself. In regard to
daily household matters the wife shall be deemed to be the repre-
sentative of her husband. The husband may deny or limit such power
of representation, but such denial cannot be set up against a third
person acting in good faith. Property belonging to a wife of a husband
prior to the marriage and property asquired during the marriage in
hthr or his own name remains the separate property of the spouse. When
it is uncertain whether preperty belongs to the husband or the wife,
it is presumed to be the property of the husband or of the female
head of the house.
A contract between husband and wife may be voided by either of
them during the marriage, but the rights of third persons may not be?
prejudiced thereby. t
NOTE: See MARRIAGE
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INFANTS AND INCOMPETENTS
Majority is attained on the completion of full twenty years of
age. A minor must obtain the consent of his legal representative
before doing any juristic act, unless it is an act merely to acquire
- a right or to be relieved from an obligation. An act done in con?
travention of preceding sentence is voidable. A person adjudged in?
competent shall be placed under guardianship. The act of a person
adjudged incompetent is voidable. The other party to an act done
by a person under disability may, after the latter has become a person
of full capacity, give a notice to him to make definite as to
whether he ratifies the voidable act or not. If the person who was
under disability fails to despatch a definite answer within such
period, the act is deemed to have been ratified, If a person under
disability has used fraudulent means to induce the belief that he is
a person of full capacity, he cannot avoid his act,
Guardianship commences in any of the following cases: (a) if
there is no one to exercise parental power over a minor, or if the
person who exercises parental power has not right of management, and
(b) if an adjudication of incompetency has been made. The person
who last exercises parental power over a minor can designate a
guardian by will, unless such person has no right of management. If
a father who exercises parental power has no. right of management,
the mother exercises parental power. If a mother who exercises
parental power has no right of management, the head of house be?
comes guardian. If there is no head of house, the guardian shall be
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demignated by family council. A guardian must without delay enter
upon a survey of the ward's property, and must complete such survey
and prepare an inventory of such property within one month; but this
period may be extended by the Court. The survey of property and the
preparation of the inventory thereof are of no effect unless conducted,
in case there is a supervisor of the guardian, in his presence.
When the duties of a guardian have terminated, the guardian or his
successor must render an account of his management within two months,
but such period may be extended by the Court.
Infants are nationals of Korea if: (a) the father was a Korean
national at the time of the birth of the child, (b) the mother is a
national of Korea and the father is unknown or has no nationality,
(c) the child-is born in Korea of unknown parents or parents who
have no nationality, and (d) the child is a foundling.
An infant loses Korean nationality if he acquires the nationality
of an alien upon adoption,
(Also see Conflicts and Application of Laws)
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Seft
INTEREST
In the absence of agreement, the interest rate on Commercial
loans is 6% per year and 5% per year on non-commercial loans.
The maximum legal interest rate for loans of 10 Hwan or more
is 20% per year,
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S.
?
JUDGEMENT
The judgement of a court in a civil case takes effect by pro?
nouncement. The judgement must be served on the parties within two
weeks after pronouncement. Foreign judgements are valid upon ful?
fillment of the following conditions:
1. The judgement is not contrary to laws, ordinances, or treaties.
2. Service has been made by means other than publication or
the defendant has accepted service.
3. The judgement is not contrary to public order or good
morals in Korea.
4. Korean judgements are recognized in the courts of the
foreign country concerned.
5. A Korean executory judgement based on the foreign judgement
is obtained before execution.
62.
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LIENS
Under civil code a lien is created when the possessor of a thing
belonging to another has an obligation in his favor relating to the
thing possessed. A lien is not recognized when the obligation is
not yet due, or if the possession resulted from an unlawful act. A
person having a right of lien may retain the thing until the obligation
is performed, and may collect the fruits produced by the thing re-
tained or may apply them to the satisfaction of his claim in preference
to other creditors. A person having a right of lien must use due
care in relation to the article and cannot, without the consent of
the debtor use or lease the thing retained, or give it as security.
Liens are extinguished by: (a) loss of possession, (b) by furniahing
adequate sesurity, and (c) when a person having a lien misuses the
article. Under the commercial code many kinds of liens are recognized.
A commercial agent may retaiwarticles or negotiable instruments
which he holds in his possession on behalf of the principal for Any
claim which has arisen out of his having acted as agent or inter-
mediary until he has been paid. An obligee may retain possession of
an article or negotiable .instrument belonging to the obligor unless
there was a declaration of intention to the contrary. A forwarding
agent may retain goods only in respect of remuneration and freight
which he is entitled to receive, and for any disbursements, or ad-
vances made for his principal in connection with such goods,
a-
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41.
LIHITATIONS
All rights and claims become extinguished when the parties entitled
thereto fail to exercise their rights within the time limit determined
by law. Except in cases where the law provides otherwise, claims under
civil code lapse unless the action is brought within ten years (under
the Commercial Code - five years). Peaceful, open possession of a
thing belonging to another for twenty years with intention to own it,,
results in ownership thereof, (10 years in case of an immovable if
original possession was bonafide and without negligence). Special
time limits are as follows: (1) three years for claims of engineers
and contractors computed from the time of the completion of the work,
(2) two years for (a) fees of lawyers from the time of conclusion of
the case, and (b) the price of products or merchandise sold by pro-
ducers, wholesalers or retail dealers; (3) one year for salaries of
employees fixed by the montb or a shorter period; wages of manual
workers and public performers and the price of articles supplied by
them and charges for transportation. The period of prescription on a
judgement is ten years.
Obligations arising out of commercial transactions, unless
otherwise provided for, shall be extinguished after five years.
As a result of the special circumstance arising from the division
of the country at the 38th parallel, the running of the Statute of
Limitations on or after 9 August 1945 against any claim or right to
institute suit against any person (natural or juridical) is suspended:
a. During the time of absence of such person from Korea south
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of 38 North Latitude, or
b. during the time such person cannot be located in Korea
south of 38 North Latitude by the ekercise of due diligence, or
c. during the time such person conceals his whereabottn.
45.
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LOCAL AUTONOMY AND TAXATION
The Republic Of Korea is divided into nine Provinces and the
Special City of Seoul, The Provinces are in turn divided into counties,
while the city of Seoul is divided into wards. A Governor appointed
by the President presides over each province while a Mayor similarily
appointed presides over the Special City of Seoul. County administrators
in the Provinces and ward chiefs in the City of Seoul are also appointed
by the President. The Provinces and the City of Seoul have local
councils.
Four types of autonomous mtnicipal organizations are to be found
in the Provinces:
a. Class A cities having a population in excess of 500,000
b. Class B cities (shi) having a population in excess of
50,000
c. Towns (up) having a population in excess of 20,000
d. Townships (myon) having a population of less than 20,000
Each municipality has an elected council which serves without
pay for three years. The mayors of cities and chiefs of towns and
villages are elected by residents thereof.
Class A cities are divided into wards, while class B cities,
towns and townships are divided into precincts (dong or ri). Ward
chiefs and precinct chiefs are elected by the residents thereof.
Provinces and the Special City of Seoul are authorized by law to
impose a local surtax on certain national taxes and also impose local
indigenous taxes. Cities, towns and townships impose re-surtaxes on
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,
the aforesaid national taxes and also impose surtaxes on certain of
the indigenous provincial taxes. They also impose indigenous taxes.
Local taxes are imposed on residents or persons having an office or
place of business in the municipality concerned.
National Tax rates are uniform throughout the Republic) but local
tax rates although uniform within an6autonomous unit, vary between
different municipal organizations.
See attached chart.
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? 4 ?4", ri X ? et. WRIT
LOCAL R.UTONO_OUS ORGANIZATIM
Autonomous
Unit
Elected
Council
Term
(Years)
3
Administrative
Head
Governor
"TOCHISA"
Flay be removed
by vote of
Local Coun.
How
Selected
Appt. by
Pres.
Term
(Years)
L:erves
at will
of pre-
sident
hajor Sub
Division
Counties
"GUN"
Administrative
Head
County
Administrator
"GUNSCO"
how
Selected
Appt. by
Pres.
Term.
(Years)
Serves
at will
of pre-
sident
.Local Taxes
Province
"TO"
Yes
a. Surtax on national land tax, busi-
ness tax & Mining Tax.
b. Indigenous taxes; house-hold tax;
building tax; special land tax; fore-
stry tax, slaughter tax; fishery ?
taxes, vehicle tax; immovable
, property tax;
Cities
See cities
below
See
cities
below
,
Special I
City of
Seoul
.
Yes
3
hayor
"ShICHANG"
May be removed
by vote of
Local Coun.
Rppt. by
Pres.
Serves
at will
of pre-
sident
bards
"IX"
Chief
"LUCHUNG JANG"
Appt. by
Pres.
oerves
at will
of pre-
sident
Same as provincial tax with ?
additional special business tax,
dog tax, boat tax, and transporta-
tion tax.
City (over
500,000)
"Shin
CLASS (A)
Yes
,
3
kayor
"Sh1CHANG"
aected
by re-
sidents
3
:.ards
"Ial"
Chief
"KUCHUNG JANG"
Appt. by
Mayor
Serves
at will
of
mayor
a. Re-surtax on nationll land tax,
business tax&Eininl tax.
b. 3urtax on certain indigenous pro-
vincial taxes.
c. Indigenous taxes; vehicle (less
Auto) Tax; special business tax,
Dog tax, boat tax, and transporta-
tion tax.
City (over
50,000)
-"Shill
,
Yes
.
hayor
"SH1CHANG"
.
Elected
by re-
sidents
?
3
,
Precincts
"DONG"
headman
"DUG JANG"
Elected
by re-
sidents
2
Same as for city over 500,000.
Town (over
20,C00)
"UP"
Yes
3
Chief
"UP JAM,"
Elected
by re-
sidents
3
Precincts
"DUNG"
headman
"DUNG JANG"
Elected
by re-
sidents
2
Same as for .city over 500,000.
Township
(less than
20,000)
naux"
Yes
3
Chief
"HYUN JANG"
.
Elected
by re-
sidents
3
-
Precincts
Han
Headman
"RI JANG"
.elected
by ra-
sidents
2
Same as for city over 500,000.
.
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MARRIAGE
The marriageable age for males is 17 full years and for females,
15 full years. Consent of the parents and family heads is required
prior to the marriage in accordance with the customary law, Marriages
between lineal blood relatives or collateral blood relatives within
the 3rd degree are prohibited. A man and a woman who have the aame
family name and whose families originated in the same locality are
prohibited from marrying. Bigamous marriages are prohibited.
A woman may not marry for six months after dissolution or annul-
ment of a previous marriage unless the woman has given birth to a
child during said period. A person divorced because of adultery may
not marry the adultorous partner.
Marriage becomes effective upon acceptance by the registry of a
certificate of marriage signed by both parties and witnessed by two
adult persons.
The requisittes for the existence of a marriage between an alien
and a Korean are governed by the law of the country of each party con-
cerned; its form however is governed by the Law of the country where
it is performed. The effect of a marriage is governed by the law of
the husband's country. Property relations between husband and wife
are governed by the law of the husband's country at the time of
marriage,
An alien who becomes the wife of a Korean national acquires Korean
nationality. A Korean who marries an alien loses Korean nationality if
the nationality of the alien spouse is acquired by marriage.
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44r-
In Korea it is customary for marriages between foreignors or a
Korean and a foreignor to be registered with the diplomatic repre-
sentative of the foreignor as a prerequisite to notification to the
Korean authorities.
(Also see Conflicts and Application of Laws, this Digest)
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MINES AND MINERALS
In accordance with the Constitution, the Government. through the
Ministry of Commerce and Industry controls the issuance of licenses
for the exploitation, development and utilization of mines and other
underground resources.
Mining licenses may only be granted to Korean citizens or juridical
persons in which more than one half of the investment and a majority
of the control belong to Korea citizens. In exceptional cases licenses
may be granted to aliens upon special authorization by the Executive
Branch of the government with approval of the National Assembly.
Licenses may not exceed 25 years subject to renewal 3 months
prior to the end of the period for a similar term.
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MORTGAGE
A mortgage grants to a mortgagee the right to have his claim
satisfied from sale of the mortgaged property furnished by the debtor
or a third person as security with priority over other creditors.
Except as noted below only immovables (land) may be mortgaged. A
mortgage extends to all things, except buildings, which appertain to
or form the part of the land mortgaged, unless otherwise provided for
by the act of creation. Where several mortgages have been created
on an imarovable to secure two or more debts, the rank of their
priority is according to the order of registration. A mortgagee may
remortgage his right to secure another debt or may assign or waive
his right or its rank of priority for the benefit of another creditor
of the mortgagor. Vessials, railways, canals and 1!4ctory and mining
rights or fisheries may be mortgaged under special law. Mortgages
must be registered tit put 3rd parties on notice.
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?
NOTARIES PUBLIC
Notaries prepare notarial deeds and authenticate documents re?
lating to juristic acts, sales, gifts, leases, loans, partnership,
contracts, powers of attorney, marriages, domestic relations, inheri?
tance, and corporations or etc., upon application of the parties or other
persons who have an interest therein. Because of the formalities
attendant upon the execution of notarized documents, a strong pre?
sumption arises as to their validity.
72.
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PATENTS
Provision relating to Patents are provided in USAMGIK ordinance
911 promulgated 5 October 1946.
Cases involving infringements of patents rights, etc., are de-
termined by the Patent Bureau with a right of appeal to the Supreme
Court only upon the ground that the decision is against the law or
regulations. The Bureau of Patents is under the Minister of Commerce
and Industry. The Bureau of Patents is divided into four sections:
a. The Peneral Affairs Section, handling patent applications,
. issuance of patent letters, regulation of patent attorneys,etc.
b. Examination Section.
c. Judgement Section.
d. Library Section.
The Patent law provides that a person who haw filed an application
for a patent outside Korea may file an application for a Korean patent
within 12 months (6months in case of a design patent) from the earliest
date on which any foreign application was filed. No extension is pro-
vided for cases where the foreign patent was filed during World War II
or during the Korean War.
(Information concerning Patents, Trade Marks and Copyright may
be obtained by writing to the Director, Patent Bureav, Ministry of
Commerce and Industry, Seoul, Korea.)
73.
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r.
PARTNERSHIP
A Partnership under the Civil Code is created by a contract whereby
each of the parties has agreed to carry on a joint undertaking by
making a contribution thereto. Services may also be made the object
of contribution. The contributions made by each partner and the other
property of the partnership belong to all the partners in common. The
management of the affairs of the partnership is decided by a majority
of the partners, unless management is entrusted to one or more partners
by the partnership contract, in which case it shall be decided by a
majority of sach persons. Such partner or partners cannot resign or be
removed except for reasonable cause, In the absence of an agreement
as to the sharing of profit and losses, it shall be decided in pro-
portion to the value of the contribution of each partner. If the
proportion has been fixed for the sharing of profits or losses alone,
such proportion is presumed to apply both to profits and losses. Prior
to liquidation, a partner cannot demand partition of the partnership
property. If no period for the duration of the partnership has been
fixed by the contract or, if it has been specified that it shall 'con-
tinue during the life of a partner, each partner may retire at any
time, but except for unavoidable necessity. not at a time which would
be disadvantageous to the partnership. .
A partnership created under the Civil Code is not a juristic
person) and cannot acquire property or rights, even where a period has
been fixed for the duration of the partnership. A partner ceases to be
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such by death, bankruptcy, an adjudication of incompetency, or by
ex?
pulsion. Expulsion of a partner may be made only for reasonable
cause and with the unanimous consent of the other partners. A part?
nership is dissolved upon the accomplishment of the undertaking for
which the partnership was made or if such accomplishment becomes .
impossible. Any member can demand dissolution of the partnership
because of urgent necessity.
75.
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411
PLEDGE
A pledgee is entitled to hold possession of an object which he
has received from the debtor or a third person as security for his
? obligation and to obtain satisfaction out of the thing in preference
to other creditors. A thing which is unassignable cannot be pledged.
The Pledge is effective upon-delivery and the pledgee loses his rights
if the pledged object is returned to the pledgor. Immovables may
also be pledged for not . more than ten years, subject to renewal.
Property rights and debts may be pledged but, if the right or debt
:is evidenced by a writton document, the document must also be
delivered to the pledgee.
76.
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?1 0
? .
PRINCIPAL AND AGENT
Agency and its authority is created by law and contract. A deed
made by an agent within the scope of his authority and disclosing the
fact that he is acting for a principal will bind his principal.
An agent need not be a person of full capacity. An agent whose
authority is not specified, has authority only to utilize or improve
the thing or right over which he has control but only in so far as the
nature of such thing or right is not altered thereby. An agent created
by mandate may not appoint a subagent, except where he has obtained the
consent of the principal or absolute necessity requires it. An agent may,
on his own responsibility, appoint a sub-agent. A sub-agent has the same
rights and duties as the agent towards the principal and third persons
and represents the principal in respect of acts within the scope of his
authority. A person who holds out another to a third person as his agent
is bound by all acts between such agent and the third person within the
scope of such apparent authority. A principal is also responsible for
an agent who has exceeded his authority. if a third person had just
reason to believe that the agent has proper authority to do such act. A
contract made by a person without authority as agent does not bind the
principal unless it is ratified by the principal. If a person who has
made a contract as an agent of another can neither prove his authority
nor get the principal to ratify the contract, he shall be liable to the
other party at the latter's option either for performance or for damages,
except in a case where the other party .was aware of, or was negligent in
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0
f
not knowing that such persoh lacked the power of representation or
lacked the capacity for entering into such contract.
Agency ceases by: (1) death of the principal, (2) adjudication
of incompetence or bankruptcy of the agent. Agency made by mandate
lapses by limitation of the mandate. .
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. ?
SALE
A sale is defined as a contract by which one party to a contract
agrees to transfer a property right to the other party for a price. A
sale becomes effective when one of the parties agrees to transfer a
property right to the other party and the other party agrees to pay
the purchase?price to the former. A unilateral promise to sell or
purcnase becomes effective as a sale from the time when the person to
whom such promise is made declares his intention to complete the sale.
When the buyer has paid earnest money to the seller, the buyer may re?
scind the contract by giving up his earnest money and the seller may
rescind by refunding double its amount so long as neither of the
parties has commenced performance of the contract. The expenses re?
lating to a contract of sale shall be borne by both rartias in eeual
shares. Upon the completion of a sales contract, the seller is respon?
sible for delivering the object of sale, and the buyer for paying the
purchase price. The place for payment is the domicile of the seller
unless otherwise specified by the pertics. If a time is fixed for
delivery of the thing sold, it is presumed that the same time is fixed
for payment of the price. If the purchase price is to be paid sim?
ultaneously with delivery of ttle subject matter of the sale, the payment
must be made at the place of delivery. When a right belonging to
another person has been made the object of sale, the seller is bound to
acquire such right and transfer it to the buyer. If in this case the
seller cannot acquire the right, the buyer may rescind the contract;
but if he was aware at the time of the contract that the right did not
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,
belong to the seller, he cannot claim damages i If the seller was
unaware at the time of the contract that the Hight he sola did hot iDe?
long to him, he may rescind the contract by paying damages arising
from his itability to carry out the contract. If a part of the right
which forms the object of a sale belongs to another person and the
seller cannot transfer it to the buyer, the buyer may demand a re?
duction of the purchase?price in proportion to such part. If the buyer
would not have bought the remaining part, had such alone been the
object of the sale, the buyer if acting in good faith may rescind the
contract. A demar.d for reduction of the purchase?orico or a rescission
of the contract does not preclude a claim for damages by a bonafide
buyer. The right of cancalation or reduction must be exercised
within one year from the time when the buyer first becomes aware
of the facts if the buyer was acting in good faith and from the time
the contract vr.s made if the buyer was acting in bad faith. ? If the
thing sold has a concealed defect and the buyer discovers the fact, he
may cancel the contract if the defect is such that he is unable to
accomplish the object for which he made the contract. In other cases
he can only claim damage.
80.
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1
SHIPPING
Korean shipping agents, ship owners, ship builders, salvage firms,
and persons engaged in the Marine Transportation Business are subject
to the licensing and other provisions of the Ship Control Law promulgated
on 3 March 1950. General provisions relating to shipping and maritime
law are to be found in Book IV of the Commercial Code, the Marine
Collision Prevention Act, the Shipts Tonnage Act and other pertinent
laws and regulations.
Korean ships have Korean nationality if they belong to the Korean
government, a Korean citizen or cormercial companies whose principal
office is in Korea provided the managing directors are Koreans.
No Korean ship may be transferred, chartered, mortgaged or de?
livered to any person not entitled to own a Korean ship without first
obtaining permission from the Korean government.
Consignors must declare money, negotiable instruments and other
valuables in order to hold the shipowner far losses resulting therefrom.
No attachment or provisional attachment of ship maybe made on a
ship which has completed preparations for commencing a voyage.
A shipowner may relieve himself of liability for acts done by the
Master within the scope of his legal authority, or for damage done to
another person by the Master or other mariners in perfonaance of
their duty, by abandoning to the claimant at the end of the voyage the
ships the freight, passage money, and any claims which he may have
for damages or remuneration in connection with the ship; provided,
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however, that this shall not apply if the shipowner has been negligent.
The rights of mariners which have arisen cut of a contract for service
are not subject to this provision.
A shipts husband has authority to do all acts in or out of Court
relating to the employment of the ship, except the following: (a) trans?
fer, abandonment, leasing or mortgaging of the ship, (b) effecting
insurance on the ship, (c) making a new voyage, (d) major repairs of
the ship, and (e) borrowing money. Limitations imposed upon the
authority of a 5hi1)7s husband cannot be set up against third persons
acting in good faith.
The lease of a ship, if registered, shall be effective e-ren against
persons who have subsequently acquired real rithts in the shi-.).
During a vome the Master shall make disposition of the cargo in
the manner which will be to the best advantage of the interested parties.
Away from the port of registry, a Master has authority to do all acts
in or out of court necessary for the voyage. Except to defray expenses
for repair of ship, salvage or other exi:enses necessary for the contin?
uance of the voyage, the Master shall not mortgage the ship, borrow
money or sell or pledge the whole or any part of the cargo. If a
ship has become unrepairable while away from her port of registry, the
Master may sell her by (official)auction with the permission of the
marine authority.
Damage and expenses which have arisen from a disposition made by
the Master in regard to a ship or cargo in order to preserve the ship
and cargo froma common peril shall constitute general average. This
provision shall not prejudice claims for damages by interested parties
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against the negligent party when the peril was caused by negligence.
When a collision is caused by the negligence of the mariners of
both ships and it is impossible to determine the degree of negligence
of both sides, the damage which has arisen from such collision shall
be borne by the owners of both ships in equal shares. Claims arising
from general average or from a collision between ships are extinguished
by prescription upon the lapse of one (1) year. In the case of general
average the period shall be computed from the time when adjustment is
completed.
Persons who, with no duty to do sop have salvaged a ship or the
whole or part of the cargo in distress at sea, may claim :,..easonable
remuneration for the results.
When a contract of carriage has been mad.? with reference to the
whole or part of a ship and all preparations necessary for unloading
the cargo have been completed, the Master shall dispatch notice
thereof to the consignee without delay. If the period allowed for un?
loading the cargo has, been specified, thchmperivdshhifldliepconlputedice
ftomettie, dash64.1nwinipthat-,onuthictathe notice was given. If cargo
has been unloaded after the expiration of such period, the shipowner
may, even in the absence of a special agreement, demand reasonable
renumoration. The period mentioned in the preceding paragraph shall
not include days during %?thich it was impossible by reason of vis major
to effect the unloading.
If a contract of carriage has been made with reference to specific
cargo the consignee shall without delay unload such cargo in accordance
with the directions dal* the Master.
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Persons having any of the following claims have a preferential
right over the ship, its appurtenance, and unpaid freight:
a. Expenses relating to a sale of the ship and its appurtenances
by (official) auction, and expenses of preservation after
commencement of proceedings for sale by (official) auction.
b. Expenses of preservation of the ship and its appurtenances
at the last port of call.
c. Public dues levied on the ship in respect of the voyage.
d. Pilotage duet; and towage dues.
e. Salvage remuneration and the ship's contribution to general
-average.
fo. Claims which have arisen from a necessity for continuance of
the voyage.
g. Claims of the Master and other mariners which have arisen
from their contracts of service.
h. Claims which have arisen from the sale or construction or
equipping of the ship, if the ship has not yet made a voyage
after Such sale or construction, and claims in respect to the
equipment, food, and fuel of the ship on her last voyage.
i. Claims in respect of which abandonment is permitted in accord-
ance with the provisions of Article 690 of the Commercial
Code, except the claims mentioned in items b, fl and h above.
Preferential rights of a ship's creditors are extinguished upon
the lapse of one (1) year from the time when they have arisen.
A registered ship and its appurtenances may be mortgaged. The
provisions relating to mortgages of immovables apply mutatis mutandis to
mortgages on ships. Preferential rights of a shiPCreditors take
precedence over a mortgage. 84.
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STATUTES
Korea is a civil law country and the bulk of its law is to be
found in the five Codes: the Criminal Code, the Criminal Code of Pro-
cedure, the Civil Code (less parts of Books IV and V), ths Civil Code
of Procedure, and the Commercial Code. The Criminal Code lull Criminal
Code of Procedure have been recently promulgated by the Korean Government,
A Civil Code was promulgated on 22 February 1958, but will not become
effective until 1 January 1960. The remaining Codes were reneived from
the Japanese and are presently in effect pending enactment of Korean
Codes. A Civil Code of Procedure is now pending before the National
Assembly. A new Commercial Code is in the drafting stage. In addition,
laws have been promulgated on such subjects as banking, trademarks,
patents, Chamber of Commerce, extensive labor laws, nationality, taxation,
mining, land reform, etc. Laws relating to companies, negotiable instru-
ments, insurance, admiralty, land, etc., are of Japanese origin and are
maintained in effect in Korea by virtue of Article 100 of the constitu-
tion. Domestic and inheritance matters are regulated in accordance with
the unwritten Korean customary laws. Numerous orders and ordinances pro-
mulgated by the Japanese Governor Generals of Korea during the period
Korea was anLexed to Japan and about fifty ordinances published by the
U.S. Military Government in Korea from 1945 to 1948 are still in effect.
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TORTS
A person who intentionally or negligently violates the right of
another person must respond in damages. In the event of the death of
another, the wrongdoer is liable to the parents, spouse and children
of the deceased. Minors are only responsible for their acts if they
had sufficient intelligence to understand the responsibility for their
actions.
A person who employes another to carryout an undertaking is bound
to make compensaticla for damage done to a third person by the employee
in the course of the execution of the undertaking; but this shall not
ap7ly if the employer has exercised due care in the appointment of the
employee and the supervision of the undertaking or if the damage would
have ensued even if due care had been exercised. A person who super?
vises the undertaking in place of the employer shall aIso assume the
responsibility mentioned in the preceding paragraph. The provisions of
the preceding two sentences shall not preclude the employer nor the
supervisor from demanding reiMlyursement from the emdloyee.
A person who, in order to protect his own right or that of a third
person against the unlawful act of another, unavoidably commits a
harmful act is not liable in damages; however, this shall not preclude
a claim for damages by the injlired party against the person who co
mitted the unlawful act. The provisions of the preceding sentence
shall apply with necessary modifications to oases where a thing belonging
to another is damaged in order to avert an imminent danger which has
arisen from such thing.
86.
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The doctrine of comparative negligence prevails in Korea.
The right to claim compensation must be exercised within three
years from the time when the injured party or his representative
became aware of such damage and the identity of the person who caused
it, but in any event within twenty (20) years from the time the un?
lawful act was committed.
87.
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TRAD KS AND TRADENAMES
Trademarks
A trademark is defined as an emblem used to nark commodities in
such a way that sellers) manufacturers, etc., may distinguish their
goods from those of another by means 'of symbols, letters) shapes or
other combinations thereof. Operational insigniaiilenUfying business
concerns may also be the subject of trademarks. Trademarks are created
by application to the Director of patents and subsequent registration
and are valid for ten years subject to renewal for a similar period.
Foreign trademarks may be submitted for registration in Korea.
Those who infringe on trademarks are subject to civil suit and criminal
?
pro secutioh.
Tradenames
A trader may his surname, surname and given name, or other
appellatiGn as his tradename. Juristic persons must indicate the kind
of organization as part of the tradename. A tradename registered by
one person cannot be registered by another person for the same business
in the same city) town or village. the registered owner of a tradename
may demand discontinuance of the use of the same name by another person
any place in Korea on the grounds of unfair competition.
Tradenames may only be assigned together with a sale of the business
or when the business is discontinued. Unless differently agreed upon)
the seller of a business cannot engage in the same type of business in
88.
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the same or adjoin ing city, torn, or village for 20 years.
Trademarks are registered with the Patent Bureau. Further infor?
mation may: be obtained by writing to the Director, Bureau of Patents,
Ministry of Commerce and Industry, Seoul, Korea.
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TREATIES AND AGREEMENTS
The Constitution provides that the President is authorized to
represent the Republic in relations with Foreign States. Proposed treaties
must be first presented to the State Council for decision after which
the President is authorized to conclude and ratify treaties subject
to consent by the National Assembly.
A partial list of treaties and other international acts between
the U.S. and Korea includes the following:
26
Sept 1948
Initial Financial and Property Settlement upon
Termination of U.S. Military Government in Korea.
14
Dec. 1948
Agreement on Aid to be Furnished to Korea.
29
June 1949
Provisional Air Transport Service Agreement
1
July 1949
Parcel Post Agreement
1
July. 1949
Agreement on Establishment of U.S. Military
Advisory Group (KMAG) to the Republic of Korea,
signed 26 Jan. 1950 and retroactive to 1 July 1949.
19
Sept. 1949
Economic Cooperation Administration (ECA) Agreement.
26
June 1950
Agreement on Mutual Defense
28
Apr. 1950
Financing of Education Exchange Program.
12
July 1950
U.S. Forces Exempted from ROK Criminal Jurisdiction.
28
July 1950
Agreement on Use of Currency and Credits by Forces
Operating in Korea under UNC.
24
May 1952
Agreement on Economic Coordination (amld 14 Dec. 195=
1
Oct. 1953
Mutual Defense Pact signed.
17
Nov. 1954
Minute of Understanding on Military, Economic and
Political matters.
17
N4v. 1957
Tteaty of Friendship, Commerce and Navigation
90.
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UN Agreements with the Republic of Korea include:
21 Sept. 1951 Privileges and Immunities of UN Personnel.
31 May 1954 UNKRA Aid Agreement.
91.
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TRUSTS
A trust created in real property.must be registered in order to be
set up against a third person. Trusts in reference to negotiable in?
struments must be indicated thereon. A trustee must administer and
dispose trust property in accordance with the terms of the trust.
Minors or incompetents cannot be trustees. A trust for the purpose of
carrying out litigation is illegal. A trust created by a debtor which
prejudices a creditor's interest maybe set aside by the creditor. A
trustee must carry out the spirit of the trust and use the standard
of care of a good manager. A trustee who causes damages to the pro?
perty in trust by improper management or disposal of the property or
who acts contrary to the spitit of the trust must respond in damages
or return the property. A charitable trust may be created for the
purpose of science, art or other public interests under the supervision
of the government.
92.
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TAXES
Taxes are assessed on the national and local level and are supple-
mented by a rather complicated system of direct contributions especially
at the local level. (See also local autonomy and taxation, this Digest).
The national tax system is exceedingly complex:and represents a consider-
able degree Of sophistication. In the distribution of national taxes, the
ratio of direct and indirect taxes is 40/60 for the previous fiscal year
and the ratio is approximately reversed if local taxes and contributions
are added.
The national tax system consists of custom duties and some fifteen
particularized taxes. The taxes contributing to the national treasury in
rank order of their revenue importance for the fiscal period July 1, 5.955
- December 31, 1956 were customs duties, the commodity tax, the temporary
land income tax, the personal income tax, the business tax, the liquor tax,
the corporation income tax, the travelling tax, the electricity and gad
tax, the admissions tax, the entertainment and restaurant tax, the regis-
tration tax, the stamp tax, the accession tax (death tax), the horse
track tax4 and the mining tax.. During this period the total revenue
produced amounted to approximately 118.6 billion hwan. In terms of
relative revenue importance only customs duties, the commodity tax, thie
temporary land income tax, the personal income tax, and the business tax
produced revenue in excess of 10 billion hwan.
Customs duties are relatively moderate in their ad valorem rates.
The tariff as it presently exists is largely a tariff for revenue purposes
rather than a tariff for industry protection.
93.
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The commodity tax which is first in revenue importance among the
internal levies is collected from. manufacturers and importers at differ-
entiated rates, depending on the commodity, ranging from 2 percent to
100 percent.
The temporary land income tax which was enacted in 1951 to replace
the land tax classifies income from land into three categories. Class
I, category A of the temporary land income tax is a levy in kind on
agricultural land engaged in the production of cereals. The base of the
tax is gross yield of cereals and the tax rates, on a progressive scale,
range from 6 to 3.3 percent, Class I, category B of the temporary land
income tax graduated currency (25% - 60%) tax on the net income of
agricultural land engaged in the production of fruits, vegetables,
ginseng and produce other than cereals. The Class 2 land tax is a pro-
perty tax based on a percentage of the assessed rental value of non-farm
real property as building sites, saltern fields and the like. The rate
of tax is a flat 12 percent.
The personal income tax provided 15.7 billion hwan of revenue for the
1956 fiscal period. It is a schedular tax consisting of six schedules
which differentiate personal income as to source and is payable by every-
one domiciled in Korea or residing in Korea, f&r.tnne y1arstifizate?nr
petsontshout side Korea who have income generated in Korea. Income class-
ification under the schedular tax is as follows:
3.) Income from non-farm real property and vessel charters.
2) Income from dividends and interest.
3) Income from enterprises.
4) Earned income.
5) Income from capital gains.
6) Miscellaneous income.
94.
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pe.
?
The differentiated income by schedules is subject to personal income
tax under three schedules of progressive income tax rates. Non-farm
real estate income is taxable at rates ranging from 19 to 57 percents
while earned income is subject to the lowest rates ranging from 4 percent
to 40 percent. Income from dividends, interest, capital gains, etc., is
taxable at rates ranging from 14 percent to 52 percent. Earned income
receives the most favorable discrimination under the personal income tax
with real estate income subject to the highest rates of tax.
Supplementing the scheduler tax is a global income tax which is an
over-riding, equalizing tax for the schedular taxes when income is over
11 4,000,000 and is derived from twc, cr more scheduler sources.
The tax rate schedules under the personal income tax and the tem-
porary land income tax involve the unusual combination of a step rate
schedule and a block rate schedule.
The business tax is a multiple classified gross sales tax. Applicable
rates range from .2 percent to 4.2 percent.
The liquor tax is a manufacturer's excise tax with the tax rates
varying with the alcoholic content of the beverage. The tax rates are
relatively substantial.
The corporation income tax applies flat rates of 32 percent against
the net income of commercial corporations and 27 percent against the net
inccme of special corporations. Its statutory provisions are comparatively
simple.
95.
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KA,
e?.?,, ?
ROK
C ONSTITUTIO N
INDEX
Chapter Page
General Provisions
1
II
Rights and Duties of Citizens
3
.1II
The N ational Assembly
10
IV
The Executive
17
Section 1 The President
17
Section 2 The State 'Council
22
Section 3 The Executive Ministeries
25
V
The Courts
I%
. . .
ft
26
VI
Economy
29
VII
Finance
.
31
Ian
Local Autonomy
.
33
Ii
Amendments to the Constitution
.
34
X
Supplementary Rules
.
35
4
(The Constitution has been amended twice - July 7, 1952 and November 291
1954. Articles amended or superseded are indicated at the end of the
text.)
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r>.
TME CONSTITUTION OF THE REPUBLIC OF KOREA
(Annotated)
PREAMBLE
We, the People of Korea, possessing a glorious tradition and history from
time immemorial, follow the great spirit of independence as manifested in the
establishment of the Republic of Korea and by proclamation thereof to the whole
world by the March 1st movement in the year of Kimi (T.N.A.D. 1919).
Now, at this time we are engaged in the r-gstablishment of a democratic
and independent State and are determined:
To consolidate National unity through justice, humanity and fraternity;
To establish a democratic system of government eliminating evil social
customs of all kinds;
To afford equal opportunities to every person and to provide for the
fullest development of the capacity of et' ch individual in all the
fields of political, economic, social and cultural life;
To require each person to discharge his duties and responsibilities;
To promote the welfare of the people at home and to strive to maintain
permanent international peace and thereby to ensure the security,
liberty and happiness of ourselves and our posterity eternally;
Do hereby, in the National Assembly, composed of our freely and duly
elected representatives, ordain and establish this constitution on the twelfth
day of July in the year of Tangun four thousand two hundred and eighty-one (T.N.
July 12, A. D. 1948).
CHAPTERI
GENERAL PROVISIONS
ARTICLE 1 The Republic of Korea shall be a Democratic and Republican State.
ARTICLE 2. The Sovereignty of the Republic of Korea shall reside in the people.
All State authority shall emanate from the people.
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ARTICLEat The requisites for Korean citizenship shall be determined by law.
Nationality Law No. 16 ? Presidential Decree 567
ARTICLE AL The territory of the Republic of arca shall consist of the Korean
peninsua and its accessory islands.
Presideatial Declaration on Sovereignty over Adjacent Sea, State
Council Notification No. 14.
ARTICLE 5. The Republic of Korea, in all fields of political, economic, social,
and cultural life shall be responsible for respecting and guarantee?
ing tIm liberty, equality, and initiative of Bach individual and
for protecting and adjusting these for the purpose of promoting the
gene:T.1 welfare.
ARTICLE 6. The Republic of Korea shall renounce all aggressive wars. The mission
of the National Armed Forces shall be to perform the sacred duty of
protecting the country.
Naval Base Law, 'Law No. 102
Marine Defmase Act, Law No. 104.
National Defense Law? Korean interim Government
National Armed Forces Organization Law No. 9.
ARTICLE 7. I. Duly ratified and published treaties and the generally recog?
nized.rules of international law shall have the same effect as
that of the law cf Korel. The statue of aliens shall be guaranteed
within the scope of international la:w and treaties.
Law on Entry, Exit and Registraticn of Aliens, Law No: 65 ?
Presidential Decree 285.
Registration of Korelns in Foreign Countries, Law No. 70 ?
Presidential Decree 279.
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II. Legislation concerning imp,rt%nt matters pertan.aing to a national
crisis which might limit the sovereignty of the Republic of Korea
or cause a change in its territr,ry shall after passage by the National
Assembly be referred to a National Referendum for confirmati.m. Such
confirmaticn shall require the valid affirmative votes of two?thirds
or more of the voters in a referendum participated in by two=--thirds
or more of the voters eligftle to vote for the election of members
of the House of Representatives.
Such National referendum shall be initiated by the petition,
within one month after passage of such legislation of five hundred
thousand or more of the voters qualified to vote for the election
of members of the House of Representatives.
When confirmation is not obtained by such National referendum,
the decision of the Natimal Assembly in question shall become retro?
actively null and vcid.
CHAPTER II
RIGHTS AND DUTIES OF CITIZENS
ARTICLE 8. All citizens shall be equal before the Law. No discrimination as
to political, economic or social life, based upon sex, religien or
social position shall exist.
No privileged catts shall be recognized, nor be ever established
hereafter.
The award of decorations or marks of honor in ahy form shall confer
upon recipients only personal honor and no privileged status shall
be created thereby.
Awards and Decoration, Presidential Decree Na. 89 as amended
3.
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ARTIOLP 9. All citizens shall enjoy personal liberty. No citizen shall be
arrested, detained, searched, triel, punished, or subjected to com-
pulsory labor except as provided by law.,
In any case of arrest, detention or search, a warrant therefcr shall
be necessary; except that in any case of flagrant? delicto or in ank
caoe where there is danger that the criminal may escape or that the
evidence of the crime may be destrcyel, the detaining autitprities
may request an ex pust facto confernity with provisions prescribed
by law.
To all persons who may be arrested or detained, the right to have
the prompt assistance of counsel and the right to request the Court
for a review of the legality of the arrest or detention, shall be
guaranteed.
Cost of Criminal Procedure, Law No. 338,
Lawyers Act, Law No, 63.
Code of Criminal Procedure, Law No, 341.
Criminal Code Law No, 293,
ARTICLE 10t,
All citizens shall be free from restrictions, except as specified by law,
on domicile or the change thereof, and from trespasses on and searches of private
premises.
ARTICLE U.
Cost of Criminal Procedure, Law No. 338.
Code of Criminal Procedure, Law No, 293.
Civil Code.
The privacy of correspondence of all citizens shall remain inviolate and
4.
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ezt.f.
?
shall not be infringed except in accordnnce with law.
Chiminal Code, Law No. 293.
ARTICLE 12t
All citizens shall enjoy the freedLm ef religion and crnscience. No State
religion shall exist. Religion shall ba severed from politics.
4RTICg_11._
Citizens shall not, except as specified by law, be subjected to any re?
strictions on the freedom of speech, press, assembly and association.
arogation of Kwanju Press Lem, Law No. 237.
Office of Public Information Organizatien, Presidential Decree No. 301,
as amended.
Newspapers and Periodicals, Licensing of, US,UAGIK Ordinance No. B.
ARTICLE 14.
All citizens shall have freedom of learning and the right to practice the
sciences and arts. Rights of authors, inventrrs and artists shall be protected by
law.
Culture Protection Law, Law No. 248.
Patent Bureau Organization, Presidential Decree No. 119.
Patent Law, USAIAGIK Ordinance No. 91
Amendment to Patent Law, Law No. 238.
ARTICLE
The right of property shall be guaranteeed. Its nature and restrictions
shall be defined by law.
The exercise of property ri6hts shall conform to the welfare of the public.
The expropriation, use or the imp' siticn of restrictions on private property for
5.
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Yg:
public purposes shall be accompanied by paz;ment of just ccmronsatim in accordance
with the provisions of law.
Grain Control Law, Law No. 97 as mended ? Presidential Decree 353 as am.
Special Measure for Requisition, Prosiaential Emergency Decree No. 6.
Compensation f:-)r Confiscation by Government, Presidential Decree No. 381
as amended by 519.
Civil Code.
ARTICLE 16.
All citizens shall be entitled to equal opportunities of education. The
attainment of at least an elementary education shall be compulsory and free of
cost.
All educational institutions shal] be administered under the supervision of
the State and the organization of the educational system shall be determined by
law.
Education Law, Law No., 86?as amended,? Presidential Decree 331 as amended.
ARTICLE 17.
All citizens shall #ave the right and duty to work. The standards and condi.,
tions of labor shall be determined by law. Special protection shall be accorded to
the labor of women and children.
Labor Relations Board, Law No. 281.
Labor Union, Law No. 280, ? Presidential Decree 782,
Labor Protection of USAMGIK Ordinance 19, Pgh. 2.,
Labor Standard Law, Law No. 286. Presidential Decree 889.
ARTICLE 18.
Freedom of association, collective bargaining and collective action of
laborers shall be guaranteed within the law.
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')z
Workers employed in profit-earning private ent.erprises shall be entitled to
share in the profits of such enterprises in accordance with the provisions of
law.
Labor Relations Board, Law No. 281.
Labor Union, Law No. 280. Presidential Decree 782,
Labor Dispute, Law Noo 279. Presidential Decree 7$3.
ARTICLE 19.
Citizens who are incapable of earning their living due to old age, infirmity
or such other reasons as may cause incapability to work, shall be protected by
tie State in accordance with the provisions of law,
ARTICLE 20.
'Marriage shall be based on the equality of nen and women. The purity of
marriage and the health of the family shall receive the special protection of
the State.
ARTICLE 21.
All citizens shall have the right to submit written petitions to any govern-
mental agency,
The Government shall be obliged to consider such petitions.
Petition Law., Law No. 211. Presidential Decree 713.
N ational Assembly Law, Law No. 5 as amended by 38, 179, 251, 275, 352.
ARTICLE 22.
Citizens shall have the right to be tried in conformity with the law by
judges authorized and directed by law.
7.
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Criminal Code, Law No. 293.
Code of Criminal Procedure, Law No. 341.
Court Organization Law, Law No. 51
Minor Offense Law, Law No. 316.
Civil Code.
Civil Code of Procedure.
ARTICLE 23.,
No citizen shall be prosecuted for a criminal offense unless such act shall
have constituted a crime prescribed by law, at the time it was committed, nor be
placed in double jeopardy.
Criminal Code, Law No. 2934
Code of Criminal Procedure, Law No. 341.
ARTICLF 24.
All defendants in criminal cases shall have the right to be tried in public
without delay unless there is proper cause for not doing so.
When a defendant in a criminal case, having been detained, is thereafter
found not guilty, he shall have the right to claim compensation by the Govern?
ment in accordance with the provisions of law.
Code of Criminal Procedure, Law No. 341.
ARTICLE 25.
All citizens shall have the right to elect public officials in conformity
with the provisions of law.
Local Autonomy Law, Law No. 32 as amended. Presidential Decree 211 as
amended.
8.
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4rc:
Election of National 4ssemb1ymen Law No. 121 as amended by 204.
ARTICLE 26:
All citizens shall have the right to hold Public Office in accordance
with the provisions of law.
National Public Officials Law, Law No. 44 as amended by 103.
Public Officials Appointment Decree, Presidential Decree
No. 208 as amended by 436, 678) 821, 828, 938, 1013, and 1123.
ARTICLE 27.
Public Officials shall be the trustees of the sovereign people and
shall at all times be responsible to the people. All citizens shall have
the right to petition for the removal of public officials who have
acted unlawfully.
Citizens who have suffered damages lir unlawful acts of Public
officials done in the exercise of their official duties shall have
the right to request compensation by the Government or the Public .
Corporate bodies concerned; however, the civil or criminal liability
of the Public Officials Concerned shall not be exempted thereby.
Government Compensation Law, Law No. 231.
ARTICLE 28.
Liberties and rights of the people not enumerated in this consti?
tution shall not be ignored.
Laws imposing restrictions upon the liberties and rights of citizens
shall be enacted only when necessary for the maintenance of public order
or the welfare of the commuity.
A
ARTICLE 29.
All citizens shall have the duty to pay taxes levied in accordance
with the provisions of Law.
Tax Collection Law, Law No. 82 as mn. P.D. 357.
9.
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Income Tax Law, Law No. 319 as am,
Judicial Person Tozc Law, Law Nic. 62 as am. Presidential Decree 238.
Business Tax Law, Law Nc. 48 as am, Presidential Decree 447 as am.
Mining Tax Law, Law Nc. 266. Presidential Decree 756.
Inheritance Tax 1,-.1q, Law Nc. 114 as am. Presidential Decree 343.
Travel Tax Law, Lf114 Y.. 99 as am. Presidential Decree 287.
Temporary Land Insome Tax Law, Law No. 220 as am. Presidential Decree
539 as amended.
Registration Tax Law, Law No. 167 as amended.
Punishment of Tax Delinquenb Law, Law No. 199 as amended. Presidential
Decree 4449 as amended.
Procedures for Punishment of Tax Delinquents Law, Law No. 200.
Local Tax Law, Law No. 84 as amended, Presidential Decree 511.
Local Apportionment Tax Law, Law No. 249 as amended. Presidential Decree
714.
Admission Tax Law, Law No. 61 as amended. Presidential Decree 239 as am.
Entertainment Tax Law, Law No. 52 as amended. Presidential Decree 206
as amended,
Commodity Tax Lar, Law No. 166 as amended. Presidential Decree 409 as am.
Liquor Tax Law, Law No. 60 as amended. Presidential Decree 213 as amended
Stamp Tax Law, Law No. 110 as amended. Presidential Decree 292.
Pari-Mutuel Tax Law, Law No. 92 as amended. Presidential Decree 290 as ar
ARTICLE 30.
All citizens shall have the duty to defend the national territory in accord-
ance with the provisions of law.
Military Service Law, Law No. 41 as amended. Presidential Decree 281 as
amended.
Armed Forces Organization Law, Law No. 9.
CHAPTER III
THE NATIONAL ASSEMBLY
ARTICLE 31.
The legislative power shall be exercised by the National Assembly.
The National Assembly shall consist of the House of Representatives and the
House of Councilors.
National Assembly Law, Law-No. 5 as amended.
10.
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ARTI2LU2.
Each House shall be c:Omposed of members Sleeted by equal, direct,
and secret vote.
No member of either House may serve concurrently as a member of the other
House.
The details for the election of, and the number of members of the National
Assembly shall be determined by law. (152 AM.)
National Assemblymen Election Law, Law No. 121 as amended. Presidential
Decree 325 as amended.
ARTICLE at
The term of members of the House of Representatives shall be four years.
The term of the members of the House of Councilors shall be six years, but
one half of the members of the House of Councilors shall be changed every three
years. (154 AM.)
ARTICLE 34.
The National Assembly shall be convened once in each year in accordance with
the provisions of law. (154 AM.)
National Assembly Law, Law No. 5 as amended.
ARTICLE 35.
In case of extraordinary necessity, the &airmen cf both Houses shall pub?
licly notify the convening of a temporary session of the National Assembly upon
the request of either the President, one fourth or more of the representatives
day elected and seated, or one half or more of the councilors duly elected and
seated. (152 AM).
U.
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ARTICLE q.6.
The House of Representatives shall elect one speaker and two vice speakers.
The Vice President shall be the speaker of the House of Councilors and two
vice speakers shall be elected by the House of Councilors.
The speaker of the House of Councilors shall preside over joint sessions of
both Houses. (52 ZIA.)
National Assembly Lam, Law No. 5 as amended
Remuneration of National Assemblyraent Law No. 23 as amended.
ARTICLE 37.
Unless otherwise provided in the Constitution,or in the rules of the
National Assembly the attendance of a majority of the members duly elected and
seated and the votes of a majority of the members present shall be necessary
for acts of each House.
In case a Bill is not adopted by one of the two Houses, or the resolutions
of the two Houses adopted on a Bill are nct in accord with each other, the
adoption of the final Bill shall be determined by the vote of a majority of a
jointesession of the two Houses, attended by a majority of the members of each
.House duly elected and seated. In case the House of Councilors shall render
decision pertaining to a budget different than that of the Hcuse of Representa?
tives, the budget shall be referred for reconsideration to the House of Repre?
sentatives, and the decision made by the House of Representatives upcn such re?
consideration shall be deemed to be the resolttion of the National Assembly.
The Speaker of the House of Representatives shall have a vote.
The Speaker of each House shall have the right to break a tie vote. (154 AM)
N ational Assembly Law, Law No. as amended.
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ARTICLE 38.
The proceedings of the National Assembly shall be open to the public. How?
ever, a closed session may be held by a resolution cf either House, or of a joint
session of the two Houses. ('52 Li)
National Assembly Law, Law No. 5 as amended.
ARTICLE 39.
Bills may be introduced by any member of the National Assembly or by the
Executive.
Budgets shall be first presented to the House of Representatives.
A Bill rejected by the House of Representatives shall not be sent to the
House of Councilors or to a joint session of the two Houses.
(In case a Bill is not adopted within sixty days, excluding adjournments,
after it ;las been sent iby one of the two Houses to the other, the House which
sent the Bill to the other House may consider the Bill rejected by the other
House. (154 am).
Natiohal Assembly Law, Law No. 5 as amended.
ARTICLE 40.
Every Bill passed by the National Assembly shall be sent to the executive
and the President shall, within fifteen days, promulgate it as Law.
In case of vote, the President shall return the Bill with his Veto to the
National Assembly for reconsideration. If, thereafter at a joint session of the
two Houses attended by two thirds or more of the members of each House duly
elected and seated, the Bill shall be passed by a majority of the members present,
the same shall become Law.
If any Bill has not been returned within fifteen days from the date of
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presentation thereof to the executive, the same shall become law.
The President shall promulzate without div, every lam which has been
enacted under the provisions of the two fereoin...; parar:raphs.
Every Law shall be effective twenty days after the date of its promula?
tion unless otherwise ,,rovlded by law. (T54 AM.)
Method of Ircmulgation of as, Presidential Decree No. 1 as AM.
ARTICLE 41.
The National Assembly shall consider and decide upcn bud,ets.
Fiscal Law, Law No. 217 as AM ? P.D. 570 as AM.
ARTICLE 42. ? I.
The National Assembly shall have power to consent to the itatification
of treaties concernin international organizations, treaties pertaining to
mutual aid 1 peace treaties, commercial treaties, treaties financially in?
cumbent on the state or the people, or treaties related to legislative affairs
'and to the declaration cf war.
ARTICLE 42 ? II.
The House of Councilors shall have the right to consent to the appoint?
ment of justices of the Supreme Curt, i'rosecubor General, the Chairman of the
Board of Audit, Ambassadors and Ministers to foret3n countries, and other
public officials desi,z,nated y law.
ArlY Appointment of officials referred to in the fore:oing paragraph .
made when the National Assembly is closed cr adjourned sholl require the
ex?post facto consent of the House of Councilors at the following session.
('54 AM,)
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A-ATICLE 0,
The National Assembly shall; for the ,urlose of inspectin:.; the Executive
-Branch, have the power to compel the Producti.m of necessary documents and
the Appearance of the Witnesses in person to testify or furnish opinions.
Audit and Inspection National Administraticn Law, Law No. 276.
Witnesses before National Assembly, Law No. 340.
ARTICLE 44.
Members of the State Council and itepresentatives cf the Executive shall
be authorized to attend meetin:;s of the National Assembly, to State their
opinions and answer questions and, by request uf the National Assembly, they
shall attend any meting of the National Assembly and answer questions.
('54 24.)
National is Law, Law No. 5 as AM.
AhTICLE 45.
Each House shall investigate the Qualifications of its members, establish
rules of procedure and decide ,n discirlinary matters concerning its members.
The Courrence c.f two?thirds cr more the menLers of each lic,use duly elected
and seated shall be nccessary for the Expulsion of any member cf the National
Assembly. ('52 M.)
National Assembly Law, Law No. 5 as AM.
AaTICLE 46.
In case the Iresident, Vice-1-resident, members of the State Counil, the
Chairthan of the Board of Audit, Judges and other rublic Officials designated
by law shall have violated, in the Exercise of their duties, provisions of
this Cvnstitution or other laws, the Nati nal Assembly shall have power to
A resolve motions for their impeachment.
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A Mction for impeachment shall be si;ned 11.y not less than thirty memLers
of the Reuse cf Representatives. The vete el' a majcrity of the members of
each House duly elected and seated shall be noceEsary to institute impeachment.
(154 AM.)
Trial For Imreachment Law: Law Dir.,. 101 as AM.
ARTICLE 47.
The Impeachment Court shall 1)e esta lished by law fcr the iurpcse of
Trying Impeachment cases.
The Impeachment Ccurt shall be presided over ly the Vice?FresiAint.
Five Justices cf the Sulreme Crurt and five memlers ef the House of Councilors
shall serve as associate judes. When the president cr the vice?president is
to be tried, the Chief Justice shall ',reside ever the Court.
The Courrence cf two?thirds or Imre ,f the Jud3es shall be required
for impeachment.
Any Decree of Impeachment shall nct extend further than removal from
office; but the Person Cenvicted shall not thereby be exem,ted frcm Civil cr
Criminal Liability. (152 AM)
Trial For Impeachment Law: Law Nc. 101 as AM.
ARTICLE 48.
No Member of the National Assembly shall concurrently hold effice in
any Local Council.
Local Autonomy Law, Law No. 32 as AK ? I.D. 158 as AK.
ARTICLE 49.
During Sessions (f the National AsseMbIy, no member of the National
Assembly shall be arrested or detained witheut the censent of the House cf
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which he is a member except in cases ,f flrmte dolictc. In cases of the
Apprehension of a member bef.re the oronin; of the Session, such member shall
be released during the Session u n the request ..f the 11-use ,f which he is
a merDer. ('52 AM.)
ARTIME 50.
Members of the National Assembly shall be held roslynsible only by the
Assembly for Statements or votes made within the Assembly.
CkLYTER IV THE EXECUTIVE
SECTION I THE FOSIDENT
IIRTIff..,E 51.
The President Lf the Republic shall be the huad f the Executive Branch
of the Government and shall reixesent the ReTublic in relations with Forcigi
States.
Governmmt Organization Law, Law Nc. 354 as M.
ARTICLE. 52.
In case of the Inability of the 1-resident to execute the duties of his
office for any reason, the Vice-President shall act as the President and in
case of Inability of both the President and the Vice-Tresident to execute the
duties of their offices, a member ,f the State Council selected in the order
determined by law, shall act as the President. (154 ,71.)
Government Organization Law, Law No. 354 as amended by 384. (See Art. 13).
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iARTICLE 53.
The President and Vice-iresident respectively shall be elected by universal,
, equal, direct, and secret vote ef the people.
In case the President or the Vice-President shall have been elected
when the Naticnal Assembly is not in session, the speakers of both Houses,
shall by notice, convene the National Assembly for the purpose of
hearing the election returns. A sealed report of the count of votes of
Presidential and Vice-Presidential elections, listing the number cf votes
for each candidate shall 10 transmitted by the election committee of each
special city and province to the speaker of the House of Ccuncilors.
The Speaker of the House of Councilors shall immediately count the
number of votes referred tc in the foregoin.!, para,;raph at an open, joint
session of the two Houses attended by a majority of the members of each House
and shall announce the president and vice-president elected. The Candidates
having the greatest number of th, votes shall be thd iresident and Vice-President.
If there are two or more Candidates havinF, an equal number of votes)
the successful Candidate shall be determined by a majority vote of the joint
session of the two Houses as prescribed in the preceding paragraph.
The details for the election of the President and Vice-President shall
be specified by law.
The President and Vice-President shall not held additional offices as
members of the National Assembly. ('54 h.M.)
President and Vice-President Election Law, Law No. 247.
ARTICLE 54.
Before the President assumes office, he shall take the following affirmation
at a joint session of the two Houses:
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"I do solemnly affirm to the people that I shall ftlithfully execute
the office of President by observing the Ccnstitution, promoting the welfare
of the people and protecting the State." (152 AM.)
ARTICLE 55.
The President and Vice-President shallhcld office for a term of four
years. However, re-election to Consecutive Terms shall be permissible for one
time only.
In case a vacancy exists in the office of the President, the Vice-
President shall succeed the President during the remaining period of the term.
A vacancy in the office of the Vice-President shall be filled without
delay by a by-election for a successor to serve the remaining period cf the
term.
In case of vacancies in both the office of the President and the
office cf the Vice-President, c member of the State Council selected in
the erder specified by law and in accordance with the provisicns of Article
52 shall act as President. Within three mknths after the date rn which
such vacancies occurred, an election for President and Vice:43resident shall
be held. (154 AM.)
Gcverrudent Organization Law, Law Ne. 354 as w
National Assembly Law, Law Nc. 5 as AN.
President and Vice-President Election Law, Law No. 247.
ARTICLE 56.
The Election for President and Vice-President shall be held nct later than
thirty days prior to the expiration of the terms of the preceding President and
Vice-President. (154
President and Vice-President Election Law, Law No. 247.
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ARTICLE 57.
When, in time of civil war, in a dang-r,us situation arising from foreign
relations, in case cf natural calamity on ace, unt of a grave eccncmic or
financial crisis, it is necessary to take urgent measures for the maintenance of-
public order and security, the President shall have power to issue orders having
the effect of law or to take necessary financial disposition, provided, however,
that the President shall exclusively exercise such pcwer (nly if time is lacking
for convening of the National Assembly.
Such orders ur disp