Anyone who follows the news in South Korea is aware of the historic nature of the recent decision by the South Korean Supreme Court in favor of eight individual Korean plaintiffs who are suing the Japanese company Mitsubishi for forced labor during World War II. Especially those who read the opinion sections of the local newspapers will have seen the laud and adulation heaped upon the Supreme Court by the South Korean media.
And while this decision is a step towards the judiciary becoming an equal third branch of government, the fact that the decision favors Korean plaintiffs against a Japanese defendant mitigates against the decision having any significant impact on the power or reputation of the South Korean courts.
For the unfortunate truth is that the judiciary is regarded as corrupt and ineffectual by the majority of individuals in South Korea. Foreigners view the judiciary as biased and South Koreans view the courts as useless in civil matters and as a pawn of the government in criminal matters.
The courts regularly allow the powerful and the politically connected to escape justice and frequently permit the government to run roughshod over the rights of average Koreans and foreigners alike.
There are numerous examples of chaebol owners who repeatedly violate the law and are released again and again from confinement and granted pardons based on their “importance” to the country. In America there are companies that are “too big to fail”; in South Korea we have individuals who are “too important to jail.”
However with this decision the court appears to have begun to focus on the rights of the average individual and on the ideals of fairness and equity. Thus this decision not only stokes the fires of popular feelings in South Korea, it also sets a precedent of fairness and justice for all.
Nonetheless, the fact that the just verdict was also a verdict against a Japanese corporation made this decision easy for the court. The hard question that will inevitably face the court is whether to uphold the rights of an individual plaintiff against one of the South Korean chaebol. And an even harder question will be when the court is confronted with an ethnically foreign plaintiff who has a legitimate grievance against a Korean defendant.
Should the court be unable to free itself from the shackles of bias against non-Korean litigants it will relegate itself to irrelevance. The ultimate irrelevance of the court can already be seen in the continuing saga of the Lone Star Investment Fund.
To the foreign investment community Lone Star was the victim of egregious behavior by the South Korean government and of outrageous bias by the South Korean Supreme Court. As the fund now pursues international arbitration pursuant to one of the numerous treaties that South Korea has signed the decisions of the Supreme Court are becoming irrelevant.
As South Korea enters into more and more bilateral treaties such as the EU and U.S. free trade agreements the inability of the South Korean judiciary to reach fair and equitable decisions will only increase its isolation and irrelevance.
Similarly in the present case there is little chance that the Japanese government will follow the decision of the court.
Even a South Korean government official commented that the decision was only a civil matter between private persons and would be unlikely to affect the position of the government.
Nonetheless the obvious equity of this decision will hopefully prompt arbitration eventually supporting the decision of the Supreme Court. And while the justices may have seen this case as an opportunity to distract the average Korean from the travesty that is the South Korean court system, the international community may come to view the case as an important turning point; a turning point that could easily be reversed should the court fail to live up to its newfound status.
Therefore, while this decision may give the South Korean judiciary a small portion of the adulation that they so desperately desire, far more important to the everyday lives of South Korean citizens, residents and investors would be a judiciary that from the top to the bottom took seriously its duty to redress wrongs.
The judiciary of South Korea should use this opportunity to vow to right all wrongs and not just those that gain it a moment in the sunlight. For what really matters in the life of the average person and the average investor is that the rules are evenly enforced at all times and for all. Daily life in South Korea is affected by the behavior of the judiciary and as the courts follow the rule of law so the populace will follow the rule of law.
Perhaps when the courts of South Korea truly start to act as an independent and unbiased judiciary, and not only in the politically easy cases, South Korea will truly become a first world country.
By Daniel Fiedler
Daniel Fiedler is a professor of law at Wonkwang University. He also holds an honorary position as the lawyer representative for international marriages in Namwon, North Jeolla Province. ― Ed.