South Korea

   

Quality of Democracy

#31
Key Findings
Fresh from a turnaround prompted by protests and presidential impeachment, South Korea scores relatively poorly in international comparison (rank 31) with respect to democracy quality. Its score on this measure has increased by 0.6 points relative to 2014.

Massive protests, ultimately followed by the impeachment of President Park on corruption charges, fundamentally transformed the direction of Korea’s society. The scandal revealed systematic collusion between the government and big business groups, but also showed the power of public pressure to overcome government influence and networks of control.

President Moon has substantially reduced efforts to influence the media, and improved access to information. Civil rights conditions are expected to improve considerably. Moon has promised to improve gender equality, and started by appointing a record number of women as ministers. Migrants, LGTBQ people and North Korean defectors continue to face discrimination.

Political campaigns are very expensive, and with most candidate funding coming from private donations or “investments.” Infractions of the election-financing law are common, but carry little stigma. Major newspapers show conservative bias, but were forced to cover Moon’s campaign to an unusual degree due to the public protests.

Electoral Processes

#30

How fair are procedures for registering candidates and parties?

10
 9

Legal regulations provide for a fair registration procedure for all elections; candidates and parties are not discriminated against.
 8
 7
 6


A few restrictions on election procedures discriminate against a small number of candidates and parties.
 5
 4
 3


Some unreasonable restrictions on election procedures exist that discriminate against many candidates and parties.
 2
 1

Discriminating registration procedures for elections are widespread and prevent a large number of potential candidates or parties from participating.
Candidacy Procedures
8
The National Election Commissions, an independent constitutional organ, manages the system of election bodies. Registration of candidates and parties at the national, regional and local levels is done in a free and transparent manner. However, deposit requirements for persons applying as candidates are relatively high, as are ages of eligibility for office.

In mid-December 2014, the Constitutional Court ruled in a controversial decision that the Unified Progressive Party (UPP) had undermined democracy and worked toward the achievement of North Korean-style socialism. The party, founded in late 2011, had five serving lawmakers, all of whom were deprived of their parliamentary seats. This was the first time a political party had been dissolved by a court or government order since 1958.

Although the National Security Law allows state authorities to block the registration of so-called left-wing or pro-North Korean parties and candidates, there is no evidence that this had a real impact in the 2017 presidential elections.

Citations:
Public Officials Election Act, Act No. 9974, Jan. 25, 2010 Freedom House, Freedom in the World 2009, New York: Freedom House
The Guardian 2014. South Korea court orders breakup of ‘pro-North’ left-wing party. Dissolution of Unified Progressive party raises questions of South’s commitment to democracy, 19 December 2014, http://www.theguardian.com/world/2014/dec/19/south-korea-lefwing-unified-progressive-party-pro-north

To what extent do candidates and parties have fair access to the media and other means of communication?

10
 9

All candidates and parties have equal opportunities of access to the media and other means of communication. All major media outlets provide a fair and balanced coverage of the range of different political positions.
 8
 7
 6


Candidates and parties have largely equal opportunities of access to the media and other means of communication. The major media outlets provide a fair and balanced coverage of different political positions.
 5
 4
 3


Candidates and parties often do not have equal opportunities of access to the media and other means of communication. While the major media outlets represent a partisan political bias, the media system as a whole provides fair coverage of different political positions.
 2
 1

Candidates and parties lack equal opportunities of access to the media and other means of communications. The major media outlets are biased in favor of certain political groups or views and discriminate against others.
Media Access
7
The 2017 presidential election was unusual, since the political opposition received unprecedented publicity due to the public protests and impeachment process. As a result, there were considerable improvements with regard to candidates’ media access. Previously under the Park Geun-hye government, the Blue House had exerted strong pressure on the country’s major broadcast networks to appoint political supporters of the president as CEOs, and had employed high-ranking network hosts or journalists as Blue House spokespeople. While TV stations and the three major newspapers still had a conservative orientation, it was impossible for them to ignore the massive political protests. The spread of alternative online media has also diminished the power of the traditional media. During the 2017 presidential election campaign, there was new competition in the use of new media by presidential candidates, particularly in the form of personal broadcasting activities using the Afreeca TV, SNS media platform, Facebook Live and YouTube Live services. Cyberpolitics and e-democracy have gradually changed the culture and rules of the game for South Korea’s elections.

In the past, the Korea Communications Standards Commission and the National Election Commission have sought to block accounts or fine online users for online comments critical of the government or the ruling party. It has even come to light that the Korean National Intelligence Service (NIS) used social-media posts to support the election of President Park in 2012. Recently, the use of social-media bots to influence online discussions has also become a matter of concern. The immensely controversial National Security Law also applies to online media, creating significant limitations regarding the freedom of expression. The opaque character of South Korean election law concerning allowable support for candidates during the election period, which can last for up to 180 days before an election, represents an electoral gray area. According to some interpretations of Article 93 of the election law, all public expressions of support for candidates or parties are illegal during that period unless one is registered as an official campaigner. This might be seen as a disadvantage for smaller candidates who do not have the same access to traditional media.

Citations:
“Do you know the dismissed journalists?” Journalists Association of Korea, January 20, 2016. (in Korean) http://www.journalist.or.kr/news/article.html?no=38319
Kyunghyang.Competition of new media strategies among presidential candidates. March 16, 2017. http://sports.khan.co.kr/bizlife/sk_index.html?art_id=201703161022003&sec_id=561101&pt=nv

To what extent do all citizens have the opportunity to exercise their right of participation in national elections?

10
 9

All adult citizens can participate in national elections. All eligible voters are registered if they wish to be. There are no discriminations observable in the exercise of the right to vote. There are no disincentives to voting.
 8
 7
 6


The procedures for the registration of voters and voting are for the most part effective, impartial and nondiscriminatory. Citizens can appeal to courts if they feel being discriminated. Disincentives to voting generally do not constitute genuine obstacles.
 5
 4
 3


While the procedures for the registration of voters and voting are de jure non-discriminatory, isolated cases of discrimination occur in practice. For some citizens, disincentives to voting constitute significant obstacles.
 2
 1

The procedures for the registration of voters or voting have systemic discriminatory effects. De facto, a substantial number of adult citizens are excluded from national elections.
Voting and Registration Rights
9
All citizens of South Korea aged 19 and over have the right to cast ballots, provided that they are registered as voters at their place of residence in South Korea or in another country. National elections are national holidays, making it easier for all citizens to vote. Legally incompetent individuals and convicted criminals still serving prison terms are deprived of active voting rights. The same applies to individuals whose voting rights have been suspended by a court verdict, those who have violated election laws, committed specified crimes while holding one of a set of public offices, and those who have violated the law on political foundations or specific other laws. Since the candlelight demonstrations, public support for expanding voting rights to all citizens aged 18 and over has grown.

Since 2009, overseas citizens aged 19 or older have been able to vote in presidential elections and in National Assembly general elections. Overseas citizens are defined as Korean citizens resident in foreign countries in which they are permanent residents or short-term visitors. Moreover, Korea was the first country in Asia to grant voting rights to foreign residents who have lived in the country for three or more years. Citizens can appeal to the National Election Commission and the courts if they feel they have been discriminated against.

Citations:
National Election Commission, Right to Vote and Eligibility for Election, http://www.nec.go.kr/nec_2009/english/ National Election Commission, NEWS No.7
“Rival parties agree to new map,” Korea Joong Ang Daily, 24 February 2016.
http://koreajoongangdaily.joins.com/news/article/article.aspx?aid=3015438
Korea Herald. “Voter Turnout Reaches 77%.” May 9, 2017. http://www.koreaherald.com/view.php?ud=20170509000522
Korea Joongang Daily. “Koreans divided over lowering voting age.” February 11, 2017. http://mengnews.joins.com/view.aspx?aId=3029735

To what extent is private and public party financing and electoral campaign financing transparent, effectively monitored and in case of infringement of rules subject to proportionate and dissuasive sanction?

10
 9

The state enforces that donations to political parties are made public and provides for independent monitoring to that respect. Effective measures to prevent evasion are effectively in place and infringements subject to effective, proportionate and dissuasive sanctions.
 8
 7
 6


The state enforces that donations to political parties are made public and provides for independent monitoring. Although infringements are subject to proportionate sanctions, some, although few, loopholes and options for circumvention still exist.
 5
 4
 3


The state provides that donations to political parties shall be published. Party financing is subject to some degree of independent monitoring but monitoring either proves regularly ineffective or proportionate sanctions in case of infringement do not follow.
 2
 1

The rules for party and campaign financing do not effectively enforce the obligation to make the donations public. Party and campaign financing is neither monitored independently nor, in case of infringements, subject to proportionate sanctions.
Party Financing
5
Since being enacted in 1965, the Political Fund Act in Korea has undergone 24 revisions for the purpose of guaranteeing that political funding is fairly and transparently provided. According to financial reports submitted by political parties in 2015, the total amount of membership fees collected from party members was $52 million, representing only 25.8% of the parties’ total income of $201.3 million. Parties also receive public subsidies according to their share of the vote in the most recent previous election. However, a larger share of campaign financing comes from private donations. Today, many election candidates raise funds in the form of special investments. A system encouraging people to report illegal electoral practices, introduced in 2004, has played a positive role in reducing illegal campaign financing. Although election laws strictly regulate political contributions, efforts to make the political funding process more transparent have had only limited success. Many violations of the political funding law emerge after almost every election, and many elected officials or parliamentarians have lost their offices or seats due to violations. However, breaking the election law carries little stigma. For example, after the 2016 general election, Ahn Cheol-soo resigned as co-leader of the People’s Party following a party financing scandal, but was still nominated to be his party’s presidential candidate in the May 2017 presidential elections.

Citations:
OECD. Korea – Financing Democracy. February 4, 2016.
http://www.keepeek.com/Digital-Asset-Management/oecd/governance/financing-democracy/korea_9789264249455-12-en#page1
“People’s Party lawmaker appears for questioning over rebate allegation,” The Korea Herald, 23 June 2016.
http://www.koreaherald.com/view.php?ud=20160623000719
“People’s Party falls into crisis as Ahn resigns,” The Korea Times, 29 June 2016.
http://www.koreatimes.co.kr/www/news/nation/2016/08/116_208219.html

Do citizens have the opportunity to take binding political decisions when they want to do so?

10
 9

Citizens have the effective opportunity to actively propose and take binding decisions on issues of importance to them through popular initiatives and referendums. The set of eligible issues is extensive, and includes national, regional, and local issues.
 8
 7
 6


Citizens have the effective opportunity to take binding decisions on issues of importance to them through either popular initiatives or referendums. The set of eligible issues covers at least two levels of government.
 5
 4
 3


Citizens have the effective opportunity to vote on issues of importance to them through a legally binding measure. The set of eligible issues is limited to one level of government.
 2
 1

Citizens have no effective opportunity to vote on issues of importance to them through a legally binding measure.
Popular Decision-Making
5
Citizen referendums can be conducted at the local and provincial levels, requiring the support of at least 5% to 20% of voters to be called, and a turnout of at least 33% to be valid. Results are not legally binding. At the national level, only the president can call a referendum, but this has never taken place. However, President Moon has indicated that a referendum addressing amendments to the constitution will take place in June 2018. According to the president, the amendment’s content will be aimed at providing more autonomy to local governments and expanding people’s basic rights. Since 2006, there have been several binding recall votes at the local level. However, the rate of success for such events is very low; often, initiatives have been rejected due to voter turnout lower than the required ratio of 33.3%.

Citations:
Korea TImes. Moon seeks referendum on constitutional revision next year. November 10, 2017. http://www.koreatimes.co.kr/www/nation/2017/10/356_234939.html
NEC, http://www.nec.go.kr/engvote/overview/residents.jsp
“Fail on recall Governor Hong caused by the institution,” Oh My News October 28, 2016 (in Korean) http://www.ohmynews.com/NWS_Web/View/at_pg.aspx?CNTN_CD=A0002255460

Access to Information

#31

To what extent are the media independent from government?

10
 9

Public and private media are independent from government influence; their independence is institutionally protected and fully respected by the incumbent government.
 8
 7
 6


The incumbent government largely respects the independence of media. However, there are occasional attempts to exert influence.
 5
 4
 3


The incumbent government seeks to ensure its political objectives indirectly by influencing the personnel policies, organizational framework or financial resources of public media, and/or the licensing regime/ market access for private media.
 2
 1

Major media outlets are frequently influenced by the incumbent government promoting its partisan political objectives. To ensure pro-government media reporting, governmental actors exert direct political pressure and violate existing rules of media regulation or change them to benefit their interests.
Media Freedom
6
In the Reporters Without Borders’ 2017 Press Freedom Index, South Korea was ranked 63rd, climbing seven places from 2016. South Korea also remains on the list of “countries under surveillance” in the category of internet censorship. Defamation suits are frequently filed as a means of preventing critical reporting.

Under the Park Geun-hye government, government interference with the press was common. Since the president appoints the head of the public Korean Broadcasting Service (KBS) and indirectly the leadership of the also-public Munhwa Broadcasting Corporation (MBC), the Blue House was able to exert its influence both with regard to internal management and media coverage. In August 2017, KBS and MBC union members initiated a simultaneous strike, demanding the resignation of leaders appointed under the old government. The protest escalated after it was found that the media companies had created blacklists of journalists based on the contents of their news reporting and had subjected those on the list to disadvantages.

However, the coverage of the impeachment scandal and the public protests demonstrated that the media is able to freely report if public support and interest in an issue is overwhelming. Some media companies such as JTBC even played a crucial role in investigating the corruption scandals related to the Park administration. The freedom of the press is expected to improve further under the Moon government.

Citations:
Korea Times. “KBS MBC to begin strike on Monday.” August 30, 2017. http://www.koreatimes.co.kr/www/nation/2017/08/371_235664.html
Reporters without Borders, Report South Korea, https://rsf.org/en/south-korea
Freedom House, Freedom of the Press Report 2013, http://www.freedomhouse.org/report/freedom-press/2013/south-korea
Freedom of the Press 2017, https://freedomhouse.org/report/freedom-press/2017/south-korea
“Voldemort for KBS? The way to cover the allegations on the Mir Foundation without mentioning Choi Soon-sil,” Media Today, September 26, 2016. (in Korean)
http://www.mediatoday.co.kr/?mod=news&act=articleView&idxno=132309&sc_code=&page=2&total=58
“ The end of medias causing King’s wrath,” Media Today, October 2, 2016. (in Korean) http://www.mediatoday.co.kr/?mod=news&act=articleView&idxno=132442

To what extent are the media characterized by an ownership structure that ensures a pluralism of opinions?

10
 9

Diversified ownership structures characterize both the electronic and print media market, providing a well-balanced pluralism of opinions. Effective anti-monopoly policies and impartial, open public media guarantee a pluralism of opinions.
 8
 7
 6


Diversified ownership structures prevail in the electronic and print media market. Public media compensate for deficiencies or biases in private media reporting by representing a wider range of opinions.
 5
 4
 3


Oligopolistic ownership structures characterize either the electronic or the print media market. Important opinions are represented but there are no or only weak institutional guarantees against the predominance of certain opinions.
 2
 1

Oligopolistic ownership structures characterize both the electronic and the print media market. Few companies dominate the media, most programs are biased, and there is evidence that certain opinions are not published or are marginalized.
Media Pluralism
5
South Korea has a vibrant and diverse media sector that includes various cable, terrestrial and satellite television stations, and more than 100 daily newspapers in Korean and English. As the country has the world’s highest internet penetration rates, a great number of readers today gain news exclusively from online sources. Yet despite the great variety of offerings, the diversity of content remains limited. The print media is dominated by three major newspapers: Chosun Ilbo, Dong-a Ilbo and Joong Ang Ilbo. Although the combined market share of these three outlets is declining, it remained at about 65% in 2014, according to the Korea Press Foundation. Smaller alternative newspapers also exist. The major newspapers are politically conservative and business-friendly, partly because they depend to a very large degree on advertising revenues. There is more pluralism in the broadcasting sector due to the mix of public and private media. However, the diversity of political opinions in this arena is threatened by government influence over broadcasters’ personnel policies.

At the same time, newspapers and TV are losing importance as a source of information, particularly among the younger generations. Among these consumers, internet sources such as NewsTapa, GoBal News and AfreecaTV have become increasingly important sources of information. NewsTapa, launched by a former journalist forcibly dismissed for political reasons during the Lee Myung-bak administration, is the only Korean member of the International Consortium of Investigative Journalists. It has gradually been gaining popularity by reporting on issues ignored by the mainstream media.

Citations:
Youn S., Lee H. (2015) The Ongoing Media Pluralism Debate in South Korea. In: Valcke P., Sükösd M., Picard R.G. (eds) Media Pluralism and Diversity. Palgrave
Media Us. “Eight years after Media Law,” July 21, 2017. http://www.mediaus.co.kr/news/articleView.html?idxno=96976 (In Korean)
Freedom of the Press 2016, https://freedomhouse.org/report/freedom-press/2016/south-korea

To what extent can citizens obtain official information?

10
 9

Legal regulations guarantee free and easy access to official information, contain few, reasonable restrictions, and there are effective mechanisms of appeal and oversight enabling citizens to access information.
 8
 7
 6


Access to official information is regulated by law. Most restrictions are justified, but access is sometimes complicated by bureaucratic procedures. Existing appeal and oversight mechanisms permit citizens to enforce their right of access.
 5
 4
 3


Access to official information is partially regulated by law, but complicated by bureaucratic procedures and some poorly justified restrictions. Existing appeal and oversight mechanisms are often ineffective.
 2
 1

Access to official information is not regulated by law; there are many restrictions of access, bureaucratic procedures and no or ineffective mechanisms of enforcement.
Access to Government Information
6
The Act on Disclosure of Information by Public Agencies regulates access to government information. It makes available all documents described by the act. Information can also be accessed online at the Online Data Release System. If an individual requests the disclosure of information, the agency in possession of that information must make a decision on the petition within 15 days. While this is a reasonable level of exception in theory, “national security” is often interpreted very broadly.

South Korea’s ranking in the Open Data Barometer has declined from eighth place out of 92 countries in 2015 to 17th out of 86 in 2017, with an overall score of 57.65 points in the latter year. Korea obtained a fairly high 79-point score in the “readiness” category, but only a respective 54 points and 48 points in the implementation and impact sections. For example, there have been significant limits on access to detailed data on government spending and registered company lists, as reflected in the low score of five out of 100 in this area. The Park government in particular was very reluctant to disclose official information, particularly about Park herself or the sinking of the Sewol Ferry. By contrast, the Moon government has proved more proactive in administering national affairs as transparently as possible, in part by disclosing information very quickly.

Citations:
Article 19. Country Report: The Right to Information in South Korea. January 21, 2016. https://www.article19.org/resources.php/resource/38242/en/country-report:-the-right-to-information-in-south-korea
Open Data Barometer, World Wide Web Foundation. Global Rankings 2017.
http://opendatabarometer.org/2ndEdition/analysis/rankings.html
Open Data Barometer, World Wide Web Foundation. Country Detail: Korea. http://opendatabarometer.org/4thedition/detail-country/?_year=2016&indicator=ODB&detail=KOR

Civil Rights and Political Liberties

#34

To what extent does the state respect and protect civil rights and how effectively are citizens protected by courts against infringements of their rights?

10
 9

All state institutions respect and effectively protect civil rights. Citizens are effectively protected by courts against infringements of their rights. Infringements present an extreme exception.
 8
 7
 6


The state respects and protects rights, with few infringements. Courts provide protection.
 5
 4
 3


Despite formal protection, frequent infringements of civil rights occur and court protection often proves ineffective.
 2
 1

State institutions respect civil rights only formally, and civil rights are frequently violated. Court protection is not effective.
Civil Rights
6
Despite the establishment of the Human Rights Commission in 2001 and the relatively effective performance of courts in protecting civil rights, many problems remain.

Under the Lee Myung-bak and Park Geun-hye administrations (2008 – 2016), South Korea experienced many symptoms of a reversal of democracy, across a wide range of areas. The country is now in the process of restoring that democracy. Civil-rights conditions are expected to improve under President Moon, a former human-rights lawyer.

Serious issues include limits on the freedom of association; limits on free speech related particularly to the National Security Law; inadequate rights accorded to migrant workers; insufficient protection accorded to refugees; inadequate protection for LGBT rights, particularly within the military; and the imprisonment of conscientious objectors. South Korea also maintains the death penalty, though there has been a moratorium on executions since 1997. The threat from North Korea has been used in the past to suppress civil and political rights. Recently, several people indicted in 2013 on suspicion of being North Korean spies were determined to be innocent, and the charges are today regarded as fabrications by the National Intelligence Service and the Prosecutor’s Office.

Citations:
AI – Amnesty International: Amnesty International Report 2014/15 – The State of the World’s Human Rights – South Korea, 25 February 2015 (available at ecoi.net)
http://www.ecoi.net/local_link/297359/419715_en.html (accessed 15 May 2016)
Amnesty International, Report on South Korea 2013, http://www.amnestyusa.org/research/reports/annual-report-south-korea-2013
“2013 was a poor year for South Korean democracy,” Globalpost, Jan 17, 2014
Seoul News, Toward the Military that can be trusted, http://www.seoul.co.kr/news/newsView.php?id=20151026010003
Amnesty International Report 2014/2015, https://www.amnesty.org/en/documents/pol10/0001/2015/en/
Amnesty International Report 2015/2016
https://www.amnesty.org/en/documents/pol10/2552/2016/en/
“After South Korean farmer’s death, family continues fight for justice,” Amnesty International Korea, 27 September 2016.
https://www.amnesty.org/en/latest/campaigns/2016/09/after-south-korean-farmers-death-family-continues-fight-for-justice/
Freedom on the Net 2016, https://freedomhouse.org/report/freedom-net/freedom-net-2016

To what extent does the state concede and protect political liberties?

10
 9

All state institutions concede and effectively protect political liberties.
 8
 7
 6


All state institutions for the most part concede and protect political liberties. There are only few infringements.
 5
 4
 3


State institutions concede political liberties but infringements occur regularly in practice.
 2
 1

Political liberties are unsatisfactory codified and frequently violated.
Political Liberties
5
Political liberties are protected by the constitution, but infringements do take place. The freedoms of opinion and of the press are constitutionally guaranteed, and the freedoms of association and assembly are respected in principle; however, the past 10 years of conservative government produced many problems including infringements of the freedoms of speech, assembly and collective action. After President Park’s impeachment, substantial new information emerged indicating the full extent of the infringements of political liberties that had taken place under her administration, including a blacklist of more than 9,000 artists who had been punished for voicing opposition to the government. However, improvements were evident even as early as the onset of the public protests calling for Park’s impeachment, as peaceful protests were allowed without much restriction, and unlike previous such incidents, the police refrained from using force. The situation is expected to improve further under President Moon. Yet even if there are few new cases of infringements, many unresolved issues remain. For example, in May 2017, the Supreme Court ruled that labor-union leader Han Sang-gyun should remain in prison for organizing largely peaceful protests against the government in 2014 and 2015. Former UPP lawmaker Lee Seok-ki also remains in prison. The Korean Teachers and Education Workers Union’s (KTU) is still waiting for legalization after its legal status was revoked following accusations that it had violated the clause of the teachers’ union law, which bars dismissed and retired teachers from holding union membership. In general, labor unions still face considerable difficulty in organizing. For example, businesses can sue labor unions for compensation for “lost profits” during strikes, and civil servants are also limited in their political freedom. Most importantly, the National Security Law that limits the freedom of expression remains the biggest obstacle to improving political rights in Korea.

Citations:
Amnesty International Report, https://www.amnesty.org/en/countries/asia-and-the-pacific/south-korea/
Freedom House. “Freedom in the World 2016: South Korea.” https://freedomhouse.org/report/freedom-world/2016/south-korea
teachers-union/

How effectively does the state protect against different forms of discrimination?

10
 9

State institutions effectively protect against and actively prevent discrimination. Cases of discrimination are extremely rare.
 8
 7
 6


State anti-discrimination protections are moderately successful. Few cases of discrimination are observed.
 5
 4
 3


State anti-discrimination efforts show limited success. Many cases of discrimination can be observed.
 2
 1

The state does not offer effective protection against discrimination. Discrimination is widespread in the public sector and in society.
Non-discrimination
6
Discrimination remains a major problem in South Korea, particularly for women, migrants, LGTB people and North Korean defectors. In the Global Gender Gap Report 2017, South Korea was ranked 118th out of 144 countries measured. The country has shown progress on the Political Empowerment subindex and with regard to parity in tertiary enrollment; however, it also showed a small decrease in share of estimated income earned by women and in perceptions of wage equality within the Korean business community. The Moon government has promised to improve gender equality. As a start, he appointed six female ministers, which at one-third of the cabinet is a considerably higher share than in any previous Korean cabinet.

Discrimination against irregular workers and migrant workers is also common, with many migrant workers still having to submit to an HIV test in order to obtain a work visa. There were approximately 30,000 North Korean defectors in Korea at the end of 2016. They are eligible for South Korean citizenship, but often face months of detention and interrogations on arrival. According to a study by the National Human Rights Commission of Korea, half of the North Korean defectors in South Korea have suffered from discrimination, primarily directed at them by people in the street (20.6%), their supervisors (17.9%) or by co-workers (16.5%).

In 2015, the Ministry of Justice rejected an attempt by the Beyond the Rainbow Foundation to become the country’s first registered LGBT advocacy group. However, in August 2017, the Supreme Court ordered the government to allow Beyond the Rainbow to register as a charity with the Ministry of Justice. Article 92 of the Military Penal Code, which currently faces a legal challenge, singles out sexual relations between members of the armed forces of the same sex as “sexual harassment” punishable by a maximum of one year in prison.

Citations:
Freedom House. “Freedom in the World 2016: South Korea.” https://freedomhouse.org/report/freedom-world/2016/south-korea
Chosun Daily. “N.Korean Defectors Complain of Discrimination in S.Korea.” March 15, 2017. http://english.chosun.com/site/data/html_dir/2017/03/15/2017031501539.html
World Economic Forum. Global Gender Gap Report 2017. November 2, 2017. http://www3.weforum.org/docs/WEF_GGGR_2017.pdf

Rule of Law

#27

To what extent do government and administration act on the basis of and in accordance with legal provisions to provide legal certainty?

10
 9

Government and administration act predictably, on the basis of and in accordance with legal provisions. Legal regulations are consistent and transparent, ensuring legal certainty.
 8
 7
 6


Government and administration rarely make unpredictable decisions. Legal regulations are consistent, but leave a large scope of discretion to the government or administration.
 5
 4
 3


Government and administration sometimes make unpredictable decisions that go beyond given legal bases or do not conform to existing legal regulations. Some legal regulations are inconsistent and contradictory.
 2
 1

Government and administration often make unpredictable decisions that lack a legal basis or ignore existing legal regulations. Legal regulations are inconsistent, full of loopholes and contradict each other.
Legal Certainty
7
The Park Geun-hye scandal, and particularly the Choi Soon-sil scandal, revealed a level of collusion and a degree of rule through private networks that most Koreans believed they already left behind. In October 2016, it was revealed that Choi – a longtime friend of President Park – apparently wielded substantial influence over government affairs despite having no formal office. Although the degree of her influence was still not fully clear by the close of the review period, the scandal further undermined the administration’s credibility. The personalization of state affairs by an individual without any official credentials brought South Koreans to the streets to protest in large numbers, ultimately leading to President Park’s impeachment. President Moon is expected to return to a more predictable governance style based on the rule of law.

When it comes to the legal system more generally, courts in South Korea are highly professional and judges are well trained. On the other hand, the unpredictability of prosecutors’ activities remains a problem. Unlike judges, prosecutors are not independent, and there have been cases when they have used their power to harass political opponents, even though independent courts later found the accusations to be groundless.

Citations:
“South Korean Leader Says She Will Submit to Scandal Inquiry,” New York Times, Nov. 3, 2016
Sang-young Rhyu, “Catastrophe 2016 in South Korea: A Tale of Dynamic History and Resilient Democracy,” EAF Policy Debates, No.63, November 22, 2016.

To what extent do independent courts control whether government and administration act in conformity with the law?

10
 9

Independent courts effectively review executive action and ensure that the government and administration act in conformity with the law.
 8
 7
 6


Independent courts usually manage to control whether the government and administration act in conformity with the law.
 5
 4
 3


Courts are independent, but often fail to ensure legal compliance.
 2
 1

Courts are biased for or against the incumbent government and lack effective control.
Judicial Review
8
The South Korean judiciary is highly professionalized and fairly independent, though not totally free from governmental pressure. Under South Korea’s version of centralized constitutional review, the Constitutional Court is the only body with the power to declare a legal norm unconstitutional. The Supreme Court, on the other hand, is responsible for reviewing ministerial and government decrees. However, in the past, there have been cases with little connection to ministerial or government decree in which the Supreme Court has also demanded the ability to rule on acts’ constitutionality, hence interfering with the Constitutional Court’s authority. This has contributed to legal battles between the Constitutional and Supreme courts on several occasions. On the whole, the Constitutional Court has become a very effective guardian of the constitution since its establishment in 1989. In March 2017, the Constitutional Court unanimously upheld the impeachment of President Park amid massive public protests, demonstrating its independence from government influence.

To what extent does the process of appointing (supreme or constitutional court) justices guarantee the independence of the judiciary?

10
 9

Justices are appointed in a cooperative appointment process with special majority requirements.
 8
 7
 6


Justices are exclusively appointed by different bodies with special majority requirements or in a cooperative selection process without special majority requirements.
 5
 4
 3


Justices are exclusively appointed by different bodies without special majority requirements.
 2
 1

All judges are appointed exclusively by a single body irrespective of other institutions.
Appointment of Justices
6
The appointment process for justices of the Constitutional Court generally guarantees the court’s independence. Justices are exclusively appointed by different bodies without special majority requirements, although there is cooperation between the branches in the nomination process. The process is formally transparent and adequately covered by public media, although judicial appointments do not receive significant public attention. Three of the nine justices are selected by the president, three by the National Assembly and three by the judiciary, while all nine are appointed by the president. By custom, the opposition nominates one of the three justices appointed by the National Assembly. The head of the court is chosen by the president with the consent of the National Assembly. Justices serve renewable terms of six years, with the exception of the chief justice. The National Assembly holds nomination hearings on all nominees for the Supreme Court and the Constitutional Court.

In September 2017, President Moon Jae-in’s initial nominee to head the Constitutional Court was rejected by parliament, the first time such a rejection had taken place.

Citations:
Article 111 of the Korean Constitution
Croissant, Aurel (2010) Provisions, Practices and Performances of Constitutional Review in Democratizing East Asia, in: The Pacific Review 23(5).
Jongcheol Kim, The Rule of Law and Democracy in South Korea: Ideal and Reality, EAF Policy Debates, No.26, may 12, 2015
Korea Herald. “Moon names new nominee for Constitutional Court Chief.” October 27, 2017. http://www.koreaherald.com/view.php?ud=20171027000588

To what extent are public officeholders prevented from abusing their position for private interests?

10
 9

Legal, political and public integrity mechanisms effectively prevent public officeholders from abusing their positions.
 8
 7
 6


Most integrity mechanisms function effectively and provide disincentives for public officeholders willing to abuse their positions.
 5
 4
 3


Some integrity mechanisms function, but do not effectively prevent public officeholders from abusing their positions.
 2
 1

Public officeholders can exploit their offices for private gain as they see fit without fear of legal consequences or adverse publicity.
Corruption Prevention
6
The massive recent corruption and abuse-of-power scandal that led to the impeachment of President Park revealed systematic corruption and collusion between the government and big business groups. The scandal also revealed weaknesses in the country’s integrity mechanisms and anti-corruption institutions, which failed to uncover these illegal activities taking place at the highest level. At the same time, the scandal showed that the Korean public, civil-society organizations and the media are vigilant and ready to effectively protest top-level abuses of power at the top.

Courts have also been tough on those involved in corruption scandals, handing down prison sentences to many involved. President Park’s confidante Choi Soon-sil received three years in prison, and Samsung Vice-Chairman Lee Jae-yong, who is also the heir of the Samsung business group, received five years in prison for his involvement in the scandal. In the aftermath of the scandal, President Moon promised to strengthen anti-corruption initiatives and announced not to pardon members of the elite involved in corruption scandals, as has been common practice in Korea in the past. In September 2017, President Moon presided over the First Anti-Corruption Policy Consultation Council. This council is tasked with establishing more systematic anti-corruption policies at the national level. The recent corruption scandals are mainly related to lobbying activities involving high-ranking officials, politicians and businesspeople. With an eye to reducing future potential corruption, a new lobbying act is being debated.

Another positive development is that the Kim Young-ran Act that came into effect in September 2016, also known as the anti-graft law (improper solicitation and graft act), has received largely positive feedback and might lead to a deeper cultural change to the gift-giving culture in Korea. The law bans public servants, teachers and journalists from receiving free meals valued over KRW 30,000 ($27), gifts more than KRW 50,000 won, or congratulatory or condolence payments of more than KRW 100,000. In surveys, nearly nine out of 10 citizens have indicated that they believe the law to be effective, with 53% saying that the frequency of requests for job-related favors has declined, and 55.4% responding that their own exchanges of gifts have been reduced.

Citations:
Anti-Corruption and Civil Rights Commission. “President Moon says anti-corruption should be first priority of new government.” September 26, 2017. http://www.acrc.go.kr/en/board.do?command=searchDetail&method=searchDetailViewInc&menuId=020501&boardNum=67059
Yonhap News. “South Korea moves away from corruption-prone culture.” September 24, 2017. http://english.yonhapnews.co.kr/news/2017/09/22/0200000000AEN20170922012400315.html
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