Korean Law Demystified!

How Courts Generally Work in South Korea: Appeals Especially

Appeals exist because judges are not infallible. In Korea, a case may be heard (normally) a max of 3 times: Trial Court (제1심) –> Appellate Court (항소심) –> Supreme Court (상고심).

Of course, only a losing party may appeal. This includes losing partially. So, only if you got what you wanted 100%, you can’t appeal. This is the same for civil and criminal cases. For example, if the prosecutor asked for 10 years but the defendant was sent to (only) 5, the prosecution may appeal (as well as the defendant). This, of course, means not guilty decisions can be appealed as well. So it’s possible to see sometimes: Not Guilty! (Trial Court) –> Guilty! (Appellate Court) –> Not Guilty! (Supreme Court). (FYI, there is no plea bargaining in Korea. The prosecution is still seen as too powerful an opponent to engage in any bargaining with…)

What about civil cases: same. Recently here in Korea, the Supreme Court ruled that tenants who are (registered) foreigners should be afforded the same protection as Koreans, in the event of foreclosure. (This was actually sort of common knowledge already. But I say “sort of” only because there hadn’t been a Supreme Court decision on this matter yet. Only lower court decisions affirming this.) Interestingly, the Supreme Court had to overturn the appellate court decision (brought before it) which had denied equal protection. The appellate court’s reasoning was that “alien registration (currently in Korea) does not function as constructive notice enough” when compared to national registration (for Koreans), so there’s perhaps a need to protect the latter (unwitting) mortgagees or lienholders more. (In other words, the status of foreigners is not as easily look-up-able.) Anyway, it’s also interesting that the appellate court themselves had to overturn the trial court decision. So in sum: Yes! (Trial Court) –> No! (Appellate Court) –> Yes! (Supreme Court).

In Korea, a Supreme Court decision is legally binding only on the parties involved (in that case). So there is no need for lower courts to necessarily rule in accordance with existing Supreme Court decisions. (But they usually do.) For example: recently here in Korea, an appellate court – for the first time – found a conscientious objector not guilty. This acquittal runs contrary to the current Supreme Court stance (based on the Constitutional Court ruling which had found such criminal punishment constitutional). Anyway, this is how outdated Supreme Court stances get changed sometimes. (Recent stances hardly change.)

Earlier this year, the Chief Justice of the Supreme Court of Korea urged all judges to rule based on what they truly thought was right. Meaning, they should try each case with a “the buck stops here” mindset and avoid a mechanical application of the law.

To learn more about lawsuits in Korea, click here.

FYI 1: I normally don’t use the word “verdict” unless for jury trials. I use “ruling” or “decision” (when not a jury trial).

FYI 2: High courts are all appellate courts, but district courts can function as trial or appellate courts. 

Thanks for reading!

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