South Korea

   

Quality of Democracy

#28
Key Findings
Though the new government is taking a far more open approach than its predecessors, South Korea still falls into the lower-middle ranks (rank 28) with respect to democracy quality. Its score on this measure has increased by 1.0 point relative to 2014.

Following two conservative presidents, the last of whom was impeached for corruption, President’s Moon’s more liberal government has made considerable strides in areas from human rights to media freedom. Some concerns nonetheless remain, including a National Security Law that limits expression, and continuing de facto discrimination against migrants, LGTBQ people and North Korean defectors.

Moon has reduced government efforts to influence the media, though internet censorship remains widespread. Labor unions are still limited in their ability to engage in political activities. Political campaigns are very expensive, and with most candidate funding coming from private donations or “investments.” A proposed constitutional-reform referendum was rejected by the opposition party.

Considerable strides have been made against public-sector corruption, with the two most recently serving presidents now in jail for bribery or corruption. The Me Too has additionally brought many abuse-of-power cases to light. However, there has been less success in curbing influence peddling by big business groups.

Electoral Processes

#29

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.
The National Security Law allows state authorities to block the registration of so-called pro-North Korean parties and candidates, there is no evidence that this had a real impact in the 2017 presidential elections. However, the controversial decision of the Constitutional Court to disband the Unified Progressive Party (UPP) for being pro-North Korean in 2014 remains in force.

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
Candidate media access has improved under the Moon administration. Under past conservative administrations, 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 President Park’s elections 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 can be seen as a disadvantage for smaller candidates who do not have the same access to traditional media. In general, small parties have a difficult time gaining coverage in the mainstream 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
Sent, Dylan. 2018. “Social Media Manipulation of Public Opinion in Korean Elections”. The Diplomat, August 31. Retrieved October 13, 2018 (https://thediplomat.com/2018/09/social-media-manipulation-of-public-opinion-in-korean-elections/)

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 against President Park in 2016 – 2017, 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 residing 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 in local elections to foreign residents who have lived in the country for three or more years. Unfortunately, voter turnout rates among foreigners are still low. 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
Park, Si-soo. 2018. “Eligible Foreign Voters Surpass 100,000, but Few Cast Ballots.” The Korea Times.https://www.koreatimes.co.kr/www/nation/2018/10/177_257145.html

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. However, results are not legally binding. The Blue House has also introduced a petition system under which the government is required to address a certain topic if at least 200,000 citizens sign a petition. There have been several binding recall votes at the local level, although the rate of success for such efforts is very low, because voter turnout rates have typically been lower than the required 33.3%. At the national level, only the president can call a referendum, but this has never taken place. In 2017, President Moon announced a referendum addressing amendments to the constitution that would improve people’s basic rights and provide local governments with greater autonomy. However, the referendum was rejected by the opposition party in the parliament, and thus could not take place. As of the time of writing, no new date for a referendum had been set.

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
Kang, Jin-Kyu. 2018. “Constitutional reform derailed”. Korea Joongang Daily, April 25. Retrieved October 13, 2018 (http://koreajoongangdaily.joins.com/news/article/article.aspx?aid=3047355)

Access to Information

#24

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
7
Under the Moon administration, South Korea has shown significant improvement with regard to media freedom. Reporters without Borders ranked South Korea at 43rd place in the 2018 World Press Freedom Index, representing a jump of 20 places from the previous year. However, some issues remain outstanding. For example, Reporters without Borders criticizes the system by which managers are appointed at public broadcasters. Furthermore, Korea has very problematic anti-defamation laws that punishes defamation (including true statements) with harsh prison terms if the statements are seen as not being in “the public interest.” Defamation suits are frequently filed as a means of preventing critical reporting. Reporting on North Korea remains censored by the National Security Law. All North Korean media are jammed, and North Korean websites are not accessible from South Korea. In general, internet censorship remains widespread, with “indecent internet sites” blocked. Consequently, Freedom House ranks South Korea among the countries in which the internet is only “partly free.” A potentially problematic new development is the government’s declaration of a “war against fake news,” with stricter legislation on the issue promised.

Citations:
Freedom on the Net 2018, https://freedomhouse.org/report/freedom-net/2018/south-korea
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
Cho, Sang-hun. 2018. “South Korea Declares War on “Fake News,” Worrying Government Critics.” The New York Times, October 2. Retrieved October 13, 2018 (https://www.nytimes.com/2018/10/02/world/asia/south-korea-fake-news.html)

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
6
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. While there is more pluralism in the broadcasting sector due to the mix of public and private media, the diversity of political opinions in this arena is threatened by government influence over broadcasters’ personnel policies. However, internet-based media such as podcasts and netcast programs have recently become very popular among younger people.

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 score in the Open Data Barometer improved to 72 (out of 100) in 2017, compared to 62 the year before (though the more recent score was based on a new methodology). In the implementation section, Korea obtained 90 out of 100 points for having a detailed government budget, but only 5 points with regard to publishing detailed data on government spending. It received 50 points in the legislative category. The National Assembly has proved reluctant to disclose information about its spending, a fact that has triggered considerable public criticism.

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/

Civil Rights and Political Liberties

#31

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
7
Despite the courts’ relatively effective performance in protecting civil rights, and the election of a former human-rights lawyer as president, many problems remain. Serious issues include limits on the freedoms of association and assembly (see also “Rule of Law”), limits on free speech related particularly to the National Security Law, and inadequate rights accorded to migrant workers. South Korea also maintains the death penalty, though there has been a moratorium on executions since 1997. On a positive note, the Korean Supreme Court in November 2018 for the first time accepted “conscience or religious beliefs” as a justifiable reason for conscientious objection to the mandatory military service. In doing so, it overturned a lower-court ruling in which a Jehovah’s Witness was sentenced to 18 months in prison. It remains to be seen how the government will react to this ruling, and whether it will offer an alternative civil service for conscientious objectors. Refugees’ difficulties in gaining asylum in South Korea has recently become an issue drawing public attention (see “Integration”).

Citations:
Amnesty International Report 2017/18, https://www.amnesty.org/en/documents/pol10/6700/2018/en/
Freedom on the Net 2018, https://freedomhouse.org/report/freedom-net/2018/south-korea
“In Landmark Ruling, South Korea’s Top Court Acquits Conscientious Objector”, New York Times, Nov. 1, 2018

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
6
Political liberties are protected by the constitution, but infringements do take place. Most importantly, the National Security Law remains the biggest obstacle not just to freedom of expression but also to political rights, because it can be abused for political purposes. The freedoms of opinion and of the press are constitutionally guaranteed, and while the situation has improved under the Moon administration, problems remain particularly when it comes to the freedoms of association and assembly. For example, the government still refuses to legalize the Korean Teachers and Education Workers Union (KTU) because it allows employees who have been fired to remain members. In general, labor unions still face considerable difficulties 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. Labor unions are still legally limited in their freedom to engage in political activities. In May 2018, Han Sang-gyun, president of the Korean Confederation of Trade Unions, was finally released from prison after serving almost two and a half years; he had been made legally responsible for what Amnesty International calls “sporadic clashes between protesters and police, and for his role in organizing a series of largely peaceful anti-government protests in 2014 and 2015.” The Supreme Court ruling dissolving the Unified Progressive Party (UPP) for allegedly plotting an armed rebellion in 2014 remains in force, and former UPP lawmaker Lee Seok-ki remains in prison.

Citations:
Amnesty International Report 2017/18, https://www.amnesty.org/en/documents/pol10/6700/2018/en/
Human Rights Watch, https://www.hrw.org/world-report/2018/country-chapters/south-korea

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, LGBT people and North Korean defectors. In the Global Gender Gap Report 2017, South Korea was ranked 118th out of 144 countries measured. The gender-based pay gap remains the largest in the OECD. 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. After several reshuffles the cabinet has now five female minsters.
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. However, mandatory HIV tests for foreign teachers and students were abolished in 2017.
There are approximately 30,000 North Korean defectors in South Korea, and discrimination against them is widespread. They are eligible for South Korean citizenship, but often face months of detention and interrogations upon 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%).
While courts have strengthened some rights for the LGBT community, the government has failed to take decisive actions to reduce discrimination. 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

#23

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
While government actions are generally based on the law, the scope of discretion is quite large, and unpredictable decisions are not uncommon. When new laws are introduced, the way they are to be interpreted is often not clear until courts have made a decision. Foreign companies often complaint about inconsistent interpretation of regulations, and “opaque regulatory decision-making remains a significant concern” according to the U.S. Department of State. Corruption also remains an impediment to improving legal certainty. After former President Park was jailed in 2017, her predecessor Lee Myung-bak was sentenced to 15 years in prison for corruption in October 2018. He is accused of collecting bribes from a variety of sources, including Samsung (for a total of about KRW 6.1 billion, or $5.4 million). In Korea, personal relationships generally play an important role in decision-making, while legal rules are sometimes seen as an obstacle to flexibility and quick decisions.

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.
Choe, Sang-hun. 2018. “Former South Korean President Gets 15 Years in Prison for Corruption”. The New York Times, October 5. Retrieved October 17, 2018 (https://www.nytimes.com/2018/10/05/world/asia/lee-myung-bak-south-korea-convicted.html)
US Department of State, Investment Climate Statements for 2018, Korea, Republic of

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
In general, courts in South Korea are highly professional, and judges are well trained. The South Korean judiciary is fairly independent, though not totally free from governmental pressure. For example, the unpredictability of prosecutors’ activities remains a problem. Unlike judges, prosecutors are not independent, and there have been cases in which they have used their power to harass political opponents, even though independent courts later found the accusations to be groundless.
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. That event also enhanced public awareness of the Constitutional Court’s independent role.

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.

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
7
After the massive corruption scandals involving the two previous governments, the situation in South Korea has improved, although the abuse of power for private gain remains a major problem. The Me Too movement has brought many abuse-of-power cases to light. As demonstrated by the protests against President Park, the Korean public, civil society organizations and the media are vigilant and ready to protest top-level abuses of power effectively. Courts have also been tough on those involved in corruption scandals, handing down prison sentences to many involved. Park’s predecessor received a 25-year jail sentence in October 2018, which means that the two most recently serving presidents are now in jail for bribery and corruption. President Moon promised to strengthen anti-corruption initiatives, and announced that members of the elite involved in corruption scandals would not be granted pardons as has been common practice in Korea in the past. Positive institutional changes made in past years, such as the Kim Young-ran Act, are now showing results, and have effectively limited Korean traditions of gift giving. Despite the strong campaign against corruption in the public sector, there has been less success in curbing corruption and influence peddling by big business groups. In February 2018, an appellate court reduced the five-year prison sentence originally given to Samsung Electronics Vice Chairman Lee Jae-yong to a suspended sentence of two and a half years. The controversial decision was seen as extremely lenient compared with the long jail sentences given to former public officials.

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
“Samsung Heir Freed, to Dismay of South Korea’s Anti-Corruption Campaigners”, New York Times, February 5, 2018.
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