Major Overhaul of Korea’s Civil Code Forthcoming From 2009

by Brendon Carr

For the first time since the Korean Civil Code was last overhauled in 1958, the basic statute of Korean laws will be overhauled completely from 2009-2012, reported the Law Times yesterday. The scholarly effort will be similar to the epochal Restatements of the Law undertaken by the American Law Institute, in that the forthcoming changes to the Korean Civil Code will aim to reduce to clear, concise language principles of law already developed through case precedents since 1958 but not codified into law. However, unlike the Restatements, the new Korean Civil Code will be primary legal authority binding on all courts.

This is an important undertaking, as the Korea of 1958 would hardly be recognizable to the young Koreans of 2008. They will need a modern body of laws to take them forward.

A select body of Korean legal scholars intend to work their way through the Civil Code in four stages, addressing each year one of Part I to Part IV of the 1118-article statute.

Part I will be wholly amended and replaced in 2009. Currently, Part I of the Korean Civil Code contains general principles of law applicable to business organizations and relationships and juridical acts. Notably, Part I of the Civil Code also contains the articles concerning extinctive prescriptions, or Korea’s statutes of limitations on claims.

Part II is the keystone of the Civil Code, in my experience. This is where the articles defining real rights in property (and thus, as a consequence, security interests in property as well) are found. A key reform that would improve Korea’s economic foundation would be a formal legal recognition of security interests in non-real properties, so called “personalty”, and non-titled movables. Currently, small Korean businesses are starved for credit (I know, now is not the best time to be talking about a credit-based economy) by the fact that only land and buildings can be offered as security; if small businesses could, for example, pledge their inventory as security for credit, more small businesses could operate and grow. Security interests in intangible properties probably also merit consideration. From 2010, if the scholars working on the Civil Code are paying attention, this could breathe new life into the small and medium enterprise segment of the Korean economy.

Part III addresses claims in contract and tort. It contains Korea’s basic rules on formation and rescission of contracts of all types (including contracts for sale of goods, and contracts of employment), bailments of property, and a very thin chapter on torts. One of Korea’s legal failings, in my opinion, is poorly defined set of expectations and standards for a duty of care—i.e., negligence is really hard to prove, as the Civil Code doesn’t say all that much. After 2011, Korea’s doctors, dentists, accountants, and—yes—lawyers may have to take greater care with their services lest they be found negligent.

Part IV, scheduled for 2012, may be most momentous as this part of the Civil Code addresses family relationships, marriages and divorce, and inheritance law. It currently comprises almost 1/3 of the bulk of the Civil Code, spanning Arts. 767-1118. Might we even see—gasp!—gay marriage addressed in Korean laws?

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