The legal system of South Korea is a civil law system that has its basis in the Constitution of the Republic of Korea. The Court Organization Act, which was passed into law on 26 September 1949, officially created a three-tiered, independent judicial system. The revised Constitution of 1987 codified judicial independence in Article 103, which states that, "Judges rule independently according to their conscience and in conformity with the Constitution and the law." The 1987 rewrite also established the Constitutional Court, the first time that South Korea had an active body for constitutional review.[1]
The Korean judicial system is based on a continental style inquisitorial system, which is markedly different from the English adversarial system. Like Chinese prosecutors and Japanese prosecutors also, Korean prosecutors directly or indirectly conduct criminal investigations. Another departure from the British/American system is the admissibility of suspect interrogation records produced by the prosecutors without defense counsel being present. A confession made without assistance of legal counsel is admissible if the suspect confirms the authenticity of the record at a preparatory hearing or during the trial. If the suspect denies its authenticity, the record could still be admissible if there is a circumstantial guarantee of trustworthiness. However, a record made by a police officer is inadmissible if the suspect denies authenticity later in the process.
Both the Constitution and the Penal Code contain provisions that prohibit ex post facto laws and violations of due process. In addition, the Constitution requires judicial warrants for arrest, detention, search, or seizure, except where a person suspected of a crime is caught in flagrante delicto or where a person suspected of a sufficiently serious crime is a flight risk or might destroy evidence, in which cases an ex post facto warrant may be issued. Additionally, no criminal suspect may be tortured or compelled to testify against himself. The Constitution also requires that a person arrested for a crime be given assistance of counsel and have the right to petition the court for habeas corpus.
Citizens of the Republic of Korea are guaranteed various civil rights and protections by Chapter II of the Constitution, which also imposes the duties of military service and taxes. These rights can be suspended however, for the purposes of social order and national security. The National Security Act prohibits "anti-government activities", which effectively criminalizes activities such as promoting anti-government ideologies (especially communism) and joining anti-government organizations.
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