Traditional law

Traditional law (전통법/傳統法) of Korea dates back to the founding of the nation (Gojoseon, 고조선/古朝鮮) in 2333 B.C. While Korean history proceeds dynasty by dynasty, remnants of old dynasties' laws are scattered in the historical documents.

After Joseon (조선/朝鮮, Yi 이씨/李氏) Dynasty was founded in 1392, most of Joseon laws were well preserved. In the 20th century, during the Japanese occupation from 1910-45, Korean law was severely damaged, but the customary laws survived. With national liberation in 1945, Korea regained its sovereignty and resumed exercising its independent legislative powers.

Key words
traditional law, customary law, Joseon Dynasty, practical school

Joseon Dynasty laws
Though it was not the same concept as that of modern states, Joseon Dynasty was ruled by the rule of law and Jori (조리/條理, 사리/事理), or nature of things.

Joseon Dynasty promulgated and implemented the following laws:
 * Gyeongje Yukjeon (경제대전/經濟六典, Six Codes of National Governance, 1397)
 * Gyeongguk Daejeon (경국대전/經國大典, Great Code of National Governance, 1471)
 * Daejeon Sokrok (대전속록/大典續錄, Supplementary of the Great Code, 1492, 1543)
 * Sok Daejeon (속대전/續大典, Supplemented Great Code, 1746)
 * Daejeon Tongpyeon (대전통편/大典通編, Unified Great Code, 1785)
 * Daejeon Hoetong (대전회통/大典會通, Compendium of Great Code, 1865)

The traditional legal codes were composed of six legal divisions, which corresponded with the divisions of the Government. For further information, consult Korean History site.
 * Ijeon (이전/吏典, public laws)
 * Hojeon (호전/戶典, civil laws)
 * Yejeon (에전/禮典, ritual laws)
 * Byeongjeon (병전/兵典, military laws)
 * Hyeongjeon (형전/刑典, criminal laws)
 * Gongjeon (공전/工典, technical laws)

Traditional Legal Culture
The general principles of the legislations were:
 * 1) Respecting the achievements of the predecessor kings;
 * 2) Priority of the old good laws; and
 * 3) Indigenization from the Chinese laws and court decisions.

In the middle age, Neo-Confucianism dominated the governing ideology throughout East Asian countries. Neo-Confucianism means the renewed Confucianism initiated by Chu Hsi in Sung (송/宋) China during the 12th century. Korea received this philosophy during the Goryeo (고려/高麗) Dynasty. During the following Joseon (조선/朝鮮) Dynasty, Neo-Confucianism became the ruling state ideology for 500 years. Therefore, Neo-Confucianism is essential when attempting to understand the law and politics of the Joseon Dynasty.

In the Early Joseon Dynasty, such prevailing philosophy was represented by the then most influential scholar-stateman, Chung Tojon (정도전/鄭道傳, 1342-1398). Chung said:
 * Generally speaking, the King relies on the state, which in turn relies on the people. Therefore, people are the basis of the state and the heaven of the king. It is said in Chou Li (주례/周禮) that the king received a census register with a bow when it was submitted to him. This was because he ought to hold his heaven in high esteem. Realizing this truth, the king should be sincere in his affection for his people.

As people are so precious, Chong asserted, all acts of the ruler, all facilities of government, all laws, and all ordinances should be aimed at promoting their welfare and dictated by popular wihses.

During the second half of the Joseon Dynasty, there was an expansion of scholarly interest into Korean history, geography, society, economics and culture. This trend is often labeled "practical learning" (실학/實學), because these scholars were looking for concrete answers to the practical problems Korean faced in the wake of the Japanese and Manchu invasions (왜란/倭亂, 호란/胡亂).

One of the greatest practical scholars was Chong Yakyong (정약용/丁若鏞, 1762-1836). Once the fovorite of King Jeongjo, Chong was arrested and banished to the countryside in the aftermath of the so-called Sinyu Catholic Persecution (신유사옥/辛酉邪獄) of 1801. In spite of 18-year long secluded life in a remote mountain village, it was a good opportunity for Chong to develop his scholarship and thought. He authored immortal works about practical learning. At that time he conducted historical research on the voluminous Confucial classics from the angle of practical learning, and attached new and rational annotations to these classics.

Case law
Traditional law or customary law was several times mentioned in the following highest court cases, among others.

Relocation of the Capital City case
When President Roh Moo-hyun tried to keep his Presidential election pledges to relocate the administrative function of the capital to the Chungcheong area, the opposition group argued that his bill for the Special Act on the Establishment of the New Administrative Capital, which was promulgated on January 16, 2004, was unconstitutional.

In October 2004, the Constitutional Court, in an 8:1 opinion, held the Special Act at issue was unconstitutional on the grounds:
 * There is no express provision in our Constitution that states "Seoul is the capital." However, that Seoul is the capital of our nation is a continuing practice concerning the life in the national realm of our nation for a period of over six-hundred years since the Joseon Dynasty period. . . Therefore, that Seoul is the capital is a constitutional custom that has traditionally existed since even prior to the establishment of our written Constitution, . . As such, it is part of the unwritten constitution established in the form of a constitutional custom.
 * Constitutional custom is also part of the constitution and is endowed with the same effect as that of the written constitution. Thus, such legal norm may at the least be revised only by way of constitutional revision. . . Pursuant to Article 130 of the Constitution, national referendum is mandatory for the constitutional revision. Therefore, the citizenry has the right to express its opinion with respect to the constitutional revision through a binary pro-and-con vote. Here, the Act at issue [is] merely in the form of a simple statute without following the constitutional revision procedure. Thus, the Act is in violation of the Constitution as it excludes the exercise of the right to vote on referendum, thereby violating such right, . ..

Holographic Will without Seal case
When a wealthy testator left a will (유언/遺言), written in his own handwriting, containing full date, address, name and full text with no seal attached, in which he promised to donate his real estate and bank deposits to a University in Seoul, his heirs filed a suit for return of such assets because the holographic will was invalid as it was defectively executed due to omission of the testator's seal.

In this case, the Constitutional Court held:
 * As prescribed in Article 1060 of the Civil Act providing that "no will shall take effect unless it is in conformity with the formality stipulated by this Act", a will is valid only when executed pursuant to the formality. Such formal requisites for execution of will not only were recognized by traditional legal systems such as Roman law and German law, but also have been generally accepted as statutory requirements in many countries in modern jurisprudence.
 * Turning to our attention to the local practice, Korean legal history shows that in the Joseon Dynasty, most of wills were executed following certain formalities in the form of a written deed called "Yu-seo" (유서/遺書) which required a seal or a signature by the testator to be valid. During the period of the Japanese forced occupation of Korea, however, the formality requirements were abolished. According to the Decree on Civil Affairs of Joseon (hereinafter, the "Decree") enacted during the aforementioned period, as family law was a product mostly formed on the basis of unique tradition and social convention of a country, Japanese Civil Act pertaining to family relation and inheritance could not be applied in Joseon, resulting in execution of wills being the matter regulated by Korean customary law. The Decree observed that customary practice of will execution in Joseon required no particular formality, permitting both written and nuncupative forms of deed. But, the current Korean Civil Act discarded the practice set by the Decree and came up with formality for being valid wills and provided for five different forms of valid wills such as a holographic will, sound recording, notarial and secrete documents and instrument of dictation (Article 1065 of the Civil Act).
 * The Supreme Court's precedents have coherently demonstrated that the legislative purposes of formality of wills are to clarity the testator's intention and to prevent legal disputes and confusion therefrom. Also, we understand that making the testator execute a will more cautiously and accurately after carefully considering all the situations is another legislative purpose for the strict formality requirements under the Civil Act.
 * As seen above, a will deviating from the legally required formality becomes invalid pursuant to Article 1060 of the Civil Act. The Supreme Court precedents also indicate that a will which does not conform to the formality should be regarded as ineffective although the invalid will truly reflects the testator's real intention.

Customary Clan Member case
In July 2005, the Supreme Court rendered an epoch-making decision on the validity of the former customary law (관습법/慣習法) which limited the qualification of clan members (종중 구성원/宗中構成員, 宗員) to adult males. Contrary to the traditional thought based on the Confucianism, the Supreme Court affirmed all the descendants having the same family name and family origin become clan members upon coming of age without distinction of sex, but made it sure that its changed opinion as to the qualification of clan members would not apply retrospectively to other cases about the qualification of clan members raised before this judgment and other associated legal relations.

The Supreme Court reasoned:
 * The legal confidence that the members of the society had in the past custom of limiting the clan membership to adult male and not giving the clan membership to women has either significantly been shaken or weakened, and above all, the overall legal order whose highest regulation is the Constitution, has changed in the direction of guaranteeing family life based upon individual dignity and gender equality, not discriminating women against men in actual rights and obligations in families, and abolishing discrimination against women and realizing gender equality in all areas of politics, economy, society and culture, and such principle of gender equality will even be strengthened, so the past custom that a clan is a customary organization that is naturally created group of a tribe that consists of men who have come of age for the purpose of protecting the graves of collective ancestors, conducting religious service and enhancing friendliness among the members, and decided that a clan is established at the time of the death of the collective ancestor by its descendants, but that only adult male descendants of the collective ancestors become members of the clan and women cannot be members of the clan, gives or takes away the chance to participate in clan activities such as protecting the graves of the collective ancestors and conducting religious services for ancestors only based upon the gender that is determined by birth, and therefore shall not be deemed justifiable or reasonable as it does not fit the overall legal order that has changed as mentioned above. Therefore, it shall be deemed that the past common law that limits the clan membership to adult male is no longer legall effective. In this regard, there is a Separate Opinion: Even though we agree that the concept that focuses on the relatives of the paternal side needs to be revaluated, considering the fact that the founder or the mid-founder of a clan is a male (A clan can be created with a female founder or a mid-founder, but it is an issue outside the scope of common law.), a more serious review shall be conducted on the scope and the limit of the gender equality in clans. Additionally, clans are unique to Korea and are the relics of our tradition. In accordance with the Constitution, the country bears a constitutional obligation of striving to succeed and develop traditional culture and to promote the national culture (Article 9 of the Constitution). Therefore, in evaluating the past common law concerning clans, effort should be made to succeed and develop our traditional culture in such a way that is shall be in harmony with the modern legal order. It is well known that the Supreme Court has judged that adult males become members of a clan regardless of their intentions, and it is our view that there is currently no problem with this part. Such view originates from the opinion that laws do not have to intervene since the most important obligation of clan members is to continue to conduct the religious services for their ancestors, and therefore the members have had to prepare materials needed for the religious services such as the purchase of the service ware, protection of the graveyard and relevant repairs and maintenance, which is not legally binding but is only a moral and ethical obligation, so their rights have never actually infringed. Therefore, it shall be deemed too mechanical for the majority opinion to literally apply the principle of gender equality to newly created legal relationships for the reason that part of the past common law concerning clans might be tolerated so far with the power of common law and the traditions.
 * As a clan is a customary organization that is naturally created group of a tribe that consists of men who have come of age for the purpose of protecting the graves of collective ancestors, conducting religious service and enhancing friendliness among the members, in light of such purpose and essence of a clan, the descendants who share the family name with the collective ancestors shall be deemed naturally to be the members of the clan when they come of age, regardless of their gender. In this connection, a Separate Opinion by Chief Justice Jong-young Choi, Justices Ji-dam Yu, Gi-won Bae, Gyu-hong Lee, Jae-yoon Park, and Yong-dam Kim said: Generally, in recognizing the qualification to be a member of a private organization, a reason that anybody shall be a member regardless of their faith or intention, cannot and shall not exist. As well known, the freedom of assembly is an individual right to freedom towards natural persons and legal entities, which at the same time guarantees the establishment and the existence of the assembly. In detail, it prohibits a forced or an automatic membership, which means it guarantees the freedom of membership and its cancelation, which is all the more the case in a private assembly as in a clan, where the individual's freedom of conscience and freedom of religion should be guaranteed. Where adult females expressed their intention to be members of the defendant's clan, as long as they have justifiable and reasonable reasons to be denied their membership including, but not limited to, the fact that they are not the descendants of the Samasenggong group of the Lee clan of Yong In, they shall be deemed to qualify to be members of the defendant's clan by expressing their intention to be members.

Also there is a Supplementary Opinion by Justice Hyun-chul Koh to the Majority Opinion: The separate opinions' criticism that it is unfair that a male naturally becomes a member of the clan when he comes of age regardless of his intention because of the freedom of assembly and the freedom of conscience is a result of a non-consideration of the essence of a clan and its characteristic that is distinguished from a normal organization or a non-legal organization. It is also hard to understand why there is no problem with an adult make to become a member of the clan when he comes of age regardless of his intention but it is problematic for adult females.
 * As this change in the opinion of the Supreme Court on the qualification of the clan members changes the foundation of the clan system which has been regulated by the Supreme Court precedents as a customary institution, the reason why the Supreme Court changes its opinion on the qualification of the clan members like the above in this decision is because the past custom that recognize only adult male as clan members no longer fits the idea of gender equality pursued by our legal order due to the changes in the general society's concept toward clan members and the changes in the overall legal order so its legal effectiveness shall be denied, and if the changed opinion like the above is applied to the past precedents, it would change the effectiveness of numerous legal relationships formed with the confidence in the past Supreme Court precedents that had been maintained for dozens of years so far, which would be in violation of the principle of constitutionalism that protects the legal parties based upon the legal stability and sincerity, it shall be reasonable to apply the Supreme Court opinion changed as the above only to the qualification of clan members and the legal relationships that are newly created after this decision is delivered.
 * However, the purport of the Supreme Court's change in its past opinion on the qualification of clan members is eventually to judge relevant cases by ruling out the effectiveness of the past common law, and if the above changed opinion is not applied to this case where the plaintiffs are arguing about the effectiveness of the past common law to save their rights and that they are qualified to be the members of the defendant's clan, it would be against the essence of the judiciary action whose purpose is to salvage a party's rights in a specific case and be seriously against justice, therefore the above changed opinion shall be applied to this case where the plaintiffs are seeking to validate the status of the members of the defendant's clan.