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Program Manager: Assoc Prof Ann Black, Deputy Director, Centre for Public, International and Comparative Law

CPICL and Korean Ministry of Justice
CPICL visit and briefing with the delegates from the Ministry of Justice, ROC. Prosecutor Kihong Cheon, Ministry of Justice Professors, Prosecutors and Lawyers, TC Beirne School of Law academics and local practitioners in December 2014

For over a decade the TC Beirne School of Law, with the support of the Korean Ministry of Justice, has welcomed prosecutors and judges from the Republic of Korea (ROK) with the objective of conducting research on topics of importance to South Korea and to Australia. As visiting research fellows of the Centre for Public International and Comparative Law they make a positive contribution to analysis of contemporary legal issues at the intersection of Korean and Australian law.

The Korea-Australia relationship is an important and instructive one. In this ‘Asian Century’ academic collaboration between legal scholars and practitioners from South Korea (ROK) and Australia is of increasing importance.  Today both nations have fully-fledged democracies and the rule of law and each looks for ways to continue legal reform particularly in legal education, family law, criminal justice, and transnational crime. The pace of legal reform in South Korea is significant and its Constitutional Court has become a model for many other Asian nations.  In this era of globalisation, collaboration between Korean judges and prosecutors with the Centre’s legal academics has enabled a broad range of contemporary and challenging legal issues to be explored and debated.

Australian flagSouth Korea flagAs the Republic of Korea stands in stark contrast to the policies and programs found in the North of the Korean Peninsula (DPRK), it is of strategic and political importance to Australia and all the nations of the Asia-Pacific region. Economically, South Korea is the world’s 12th largest economy and is Australia’s fourth-largest overall trading partner (total two-way trade was worth $32.7 billion in 2011), and Australia's third largest market for goods and services combined (2011). Through comparative research undertaken as part of the Korean Law program, Australian lawyers can gain insight into Korean ideas and attitudes towards law and governance, and our Korean Research Fellows can gain insights into the workings of the common law system in Australia. The aim is that in this way there will be improved regional cooperation and better understanding of each other’s law and legal culture.

Jonglyoul Oh, Public Prosecutor, Seongnam Branch Of Suwon District Prosecutor's Office.

Research Project: The means for the protection personal information in developed countries: a comparison and evaluation of Australia and the Republic of Korea, in how to approach, investigate, and prosecute leaks of personal information.

In 1999 Prosecutor Oh commenced  his LLB at the Korea University’s College of Law and after graduation successfully passed the Korean National Bar Exam in 2002 before entering the Judicial Research and Training Institute. He has held various positions since 2004 including two years (2005-2007) as a military judicial officer [military prosecutor and staff judge advocate] with the Korean Army and subsequently as a prosecutor in Seoul (2008-2010); Jinju Branch of Changwon District (2010-2012) , and from 2012 in the Seongnam Branch Of Suwon District Prosecutor's Office where his specialised in Narcotics & Organized Crimes and Public Security Crimes. In 2012, he was award a prize (Merit Prosecution from the Minister of Justice.

His research will be supervised by Dr Mark Burdon.

Research Focus:
Today, people store their personal information in order to register for access to websites. Governments have access to this personal information for various reasons; business companies monitor and capture their customer's information and information is provided to third parties for marketing purposes. owever, despite the importance of securing personal information, supplement policies are insufficient to prevent the leaking of private information.

Recently, there was an incident in which three credit card companies in South Korea were hacked and a vast amount of personal information was leaked. Also, personal details of asylum seekers in Australia have been stolen via website last year.

Personal information leakage is not only a problem in itself, but also causes the bigger problem in which illegally accessed personal information can be wrongfully used in financial fraud and identity theft without even realizing it.

My current research interests include :

  • identifying how to manage and protect personal information in developed countries
  • comparing and evaluating both countries, Australia and the republic of Korea, how to approach, investigate, and prosecute when the leak of personal information occurs.

Kihong-CheonKihong Cheon, Prosecutor, Suwon District Prosecutor's Office

Research project: The current handling of Transnational Organised Crime particularly organised gang violence & narcotic trafficking in Australia and the Republic of Korea: a comparative analysis.

Click here to read his research paper: ‘The Current Handling of Transnational Organised Crime particularly organised gang violence & narcotic trafficking in Australia and the Republic of Korea: A Comparative Analysis’  which is available in English and in Korean.

Kihong Cheon’s paper published in - The Research Papers of Abroad Training Public Prosecutor (Vol 30, 2015) pp 843-952, received an excellence ranking.

Kwan-Soo-JungKwang Soo Jung, Prosecutor, Seoul Central District, Prosecution Department.

Kwang graduated in law with distinction, from Seoul National University in 2003. He completed both the National Bar Examination and an L.LM (majoring in Constitutional Law) before entering the Judicial Research and Training Institute under the Supreme Court of Korea in 2005. He has worked as a prosecutor for seven years since and is currently with the Seoul Central District, specializing in finance, stock and tax investigation.

Click here to download paper: Ann Black & Kwang-Soo Jung, ‘When a revealed affair is a crime, but a hidden one is romance: an overview of adultery law in the Republic of Korea’ [2014] International Survey of Family Law, 275–307.

Research project: South Korea’s Law on Adultery: is it maintaining morality and protecting women?

Background: Adultery can be a morally reprehensible act as it involves deception, betrayal, the breaking of promises, and is a cause of emotional pain. Under Korean law, other than warranting moral reprehension and the institution of a divorce suit, adultery entails criminal prosecution. As such, Korean criminal law is given the difficult task of encouraging spousal fidelity through the use of state authority. The crime of adultery is prohibited under Article 241 of the Korean Penal Code(KPC), which provides for a maximum two-year prison sentence to married person as well as their partners if found to have committed adultery. Adulterers may only be prosecuted upon the accusation of a spouse, and the accusation can only be made after the marriage has been dissolved or a divorce action has been filed. Approximately 150,000 persons have been prosecuted annually for the crime of adultery since the 1980s.

From a comparative legal perspective, Article 241 of the KPC can be viewed as a unique legal provision found in contemporary democratic societies. Only two western countries, Austria and Switzerland, criminalize adultery. In contrast, Denmark (in 1930), Sweden (in 1937), Japan (in 1947), Germany (in 1969) and France (in 1975) have all abolished the crime of adultery, and although adultery remains a crime in twenty-four states within the United States, the laws are a dead-letter statutes rarely enforced and seldom prosecuted. In 1955, the American Law Institute eliminated the crime of adultery from the Model Penal Code. None of the other Far Eastern countries that share the Confucian tradition, such as China, Japan and North Korea, criminalize adultery.

Many Korean legal scholars argue today that adultery should not be criminalized, maintaining that adultery should be a matter dealt with under divorce law and not under criminal law. In three separate decisions, however, the Korean Constitutional Court has repeatedly confirmed constitutionality of Article 241 of the KPC. On the other hand, the Korean Constitutional Court decided Article 304 of the KPC that banned sexual acts under false promises of marriage is unconstitutional (in 2009).

This research with Associate Professor Ann Black, Deputy Director of CPICL will ask the following research questions:

  1. What are the factors – legal, religious, economic, historical, & cultural – that support the retention of adultery?
  2. The extent to which the law is employed and criminal sanctions imposed?
  3. What has been the rationale for the Constitutional Court’s finding that the laws are constitutional, including an analysis of the  majority position and the dissenting views?
  4. What movements supports it abolition and its retention in Korea and in the region?
  5. What insights does this give into Korean legal culture?

Yongshin-ChungYongshin Chung, Judge of the Seoul Family Court.

The Hon. Yongshin Chung, Judge of the Seoul Family Court, South Korea, was appointed to the bench in 2003. She received a B.A. from Yonsei University in 1997 and a LL.B. from the same university in 2000. Prior to her appointment to the judiciary, she passed the Senior Entrance Examination for Administrative Service and worked at the Ministry of Education & Human Resources Development as a Deputy Director. Judge Chung has dealt with civil, criminal, and family cases from 2003 to 2012.

Click here to download paper: "Introduction to the Judicial System of Korea"

Research project: Reforming the Family Courts in Korea: are there lessons from the Australian experience?

The courts of Korea have been trying to diversify the roles for the family courts. As a result the family courts of Korea not only deal with trials but now provide a one-stop service, playing a pivotal role as a center-point of their community in resolving fundamental problems for families.

One of the main issues which the family courts are covering include: i) supporting multi-cultural families and ii) preventing child maltreatment.

Concerning the first issue, the problems related to multi-cultural families are considerably increasing in Korea, as the number of international marriages has increased rapidly. As a result, many more children from multi-cultural families are suffering from financial difficulties, domestic violence or broken homes. And yet the family courts to date have not enough sufficient expertise nor programs to support these endangered children and families.

Australia, on the other hand, clearly has a longer history concerning the issue of multi-cultural families ;for instance, the Australian government abolished the White Australia policy in 1973 and accepted immigrants from diverse cultures. Therefore I now am researching some of the solutions and systems regarding multi-cultural family disputes based on the Australian experience.

Concerning the second issue, although child maltreatment is undoubtedly a universal problem, recent serious child abuse cases have alarmed the Korean society.

The Korean family court judges have the authority to impose punishments on parents convicted of serious child abuse and to deprive them of their parental rights. However I believe the family courts of Korea should try to develop more preventive measures, as many studies show that intervention at early stages from the family courts for maltreated children could be very effective in preventing child abuse.

In order to adopt effective actions at early stages in Korean family courts, I am studying the methods used in Australian children's courts, which have reputation for their systematic approach in helping abused children. 

Eventually, it is my greatest hope that I could contribute to Korean family courts to perform the duties in solving above issues with the products of my study in Australia.

Judge-LimDae Ho Lim, Judge of the Seoul Central District Court.

The Hon. Dae Ho Lim, Judge of the Seoul Central District Court, South Korea, was appointed to the bench in 2002. He graduated with a Bachelor of Law from the Department of Public Law, Seoul National University. Judge Lim is currently in charge of civil cases in Seoul Central District Court (2011~2013) and is a member of the medical law research committee, of the Supreme Court of Korea.

Research project: A Korean perspective on climate change litigation in Australia

The research undertaken was on climate change through assessment of comparative regulatory regimes. It included:

  1. Examining the different types of climate change litigation in Australia and US.
  2. Comparing litigation strategies, procedure and evidence, the outcomes of litigation, and recent cases in the field of climate change.
  3. Analyzing the method and limitation of judicial review on the discretion of administrative agencies in environmental cases.


 

Kook Ryang Ryoo, Prosecutor, Seoul Southern District, Prosecution Department.

Ryoo received a B.A from Korea University and passed the National Bar Exam before his appointment to the Prosecution Department in 2002. He has worked as a prosecutor for 11 years and is currently with the Seoul Southern District, specializing in murder and violent crimes.

Research project: Research on investigation and trial document of criminal case in Queensland

So far considerable research has been undertaken on the difference between the criminal system of Queensland and that of Korea. However, the research undertaken whilst at the University of Queensland was focused on the kind of documents made by police officers, prosecutors and judges in Queensland and Korean jurisdictions, in particular why these documents are made in this way and the key differences between the two systems. This research provides criminal documentation of real cases in Queensland. It includes police brief, indictment, arrest warrant, written judgment and so on.