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Legal Counsel in Korea: Lawyers, Saböpsösa, and the Realization of Justice Linda S. Lewis Litigation in the United States is highly adversarial in nature. The American popular image of courtroom proceedings is of two well-paid lawyers fighting it out before an impassive judge, whose verdict will favor the side marshalling the most impressive arguments or exercising the most ingenuity in uncovering technicalities. Without lawyers there can be no litigation; as Choi (1980:76) points out in comparing Western and Korean legal institutions, "Litigation and court proceedings in the West constitute a competition between private persons; the attorney system in litigation consummates competition at court and thus contributes to the realization of justice. Therefore, denial of counsel is tantamount to denial of justice." In contrast, Koreans routinely venture into civil, family, and criminal courtrooms without legal counsel, and the majority of litigants in lower-level civil courts in fact choose to represent themselves. The absence of lawyers in the courtrooms often disturbs American observers of Korea's legal institutions, who tend to view it as an indication that the "rule of law" has not yet taken root. The usual assumption is that Koreans involved in legal actions would hire a lawyer if they could and, from this, that if few Koreans are represented by legal counsel, it must be that lawyers are too expensive, or inaccessible, or perhaps Koreans are not sophisticated enough to seek professional legal help. In addition, there is the vague notion that there are in Korea judicial scribes, saböpsösa,1 who act as a kind of "people's lawyer" for those who cannot afford attorneys. When I began doing research in the District Court [chibang popwon ] in Kwangju,2 1 was intrigued by the role of professional legal coun- 114LEWIS sel in the judicial process, including the place of the saböpsösa in Korean legal culture. Although it was not the primary focus of my work within the courts, I had the opportunity during the course of my research to examine the part played in the legal system by these two classes of legal specialists—lawyers and saböpsösa. In this article I will discuss some of my observations on legal counsel in Korea, particularly the place of advocacy in the judicial system, who lawyers and saböpsösa are and what they do, how the two professions differ, and what this suggests about the realization of justice in the Korean civil courts. Korean Legal Counsel: The Context It is important at the outset to understand the relationship between lawyers [pyönhosa],1 saböpsösa and other judicial actors: the judges [p'ansa], prosecutors [kömsa], and court employees. Legal personnel in Korea cannot be divided neatly into competing professional groups, composed of those who sit on the bench and those who practice before it. Rather the different structural positions are filled by individuals who have progressed to different points in a two-track legal career path. The judge hearing a case will probably retire into private practice as a lawyer, and return to represent his own clients as a member of the bar. The clerk who assists the judge undoubtedly hopes to eventually open his own office as a saböpsösa, writing the legal documents he now processes for the court. Almost all of Kwangju's twenty-nine lawyers served first as judges and prosecutors, just as most of the city's fifty-four licensed saböpsösa began their careers working at the District Courthouse.4 Moreover lawyers and saböpsösa continue to identify with their former colleagues, and in the Korean courtroom the roles of the hired legal specialists tend to be supportive of, rather than at odds with, the efforts of the judge. Korean legal personnel—judge and lawyer alike— enter the courtroom with shared attitudes toward litigation and with similar aims and expectations for its outcome. In addition to this shared perspective on the law, two other related factors are very important in shaping the role of legal counsel in Korea, particularly in relation to the judge: the use of a civil law system,5 and the lack of a strong advocacy...

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Additional Information

ISSN
1529-1529
Print ISSN
0145-840X
Pages
pp. 113-129
Launched on MUSE
2011-03-30
Open Access
No
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