The Studying On Transplant, Transition And Development Of West Law In China And Korea

In his book "New Science" (Scienza Nuova), Italian philosopher, Giambattista Vico (1688-1744) created four categories of academic subjects; theology, philosophy, law and history. The academic classification is to apply the spirit of invention, which is the universal law of the natural science in the seventeen century, to new academic areas. The new academic classification was created by combining the Platonic doctrine with Newtonian one, and is divided into spiritual science and science of culture. Spiritual science is an academic study that deals with history, religion, linguistics, literature, art and etc, where the science of culture includes law, politics, ethnology and etc.The academic classifications in study were developed further by the new Kantian school in the nineteenth century. Rickert Heinrich (1863-1936) provided an insight on distinctions between natural science and'culture of science'. In this classification, natural science refers to the study of the deduction of general law, and the science of culture refers to deal with incommensurably diverse of objects associated with values and evaluating what objects are. According to the classification from philosophers, law contains not only objectivity and universality, but also diversities of cultures at the same time. This means that law includes universality and relativity.Comparative law explicitly shows the spirit of the law as it deals with universality of law and diversity of states. My thesis originates with the spirit of the law since it attempts to compare the process of legal transplants into China and South Korea. As we all know, both China and South Korea have significant similarities in terms of culture and legal system because they share East Asian region cultural traditions. In the pre-modern society, Chinese legal system had tremendous effects on East Asian states, and especially it was a custom that Korea transplanted the Chinese legal system. In the modern era, the custom however changed and Korea experienced new legal transplants from Western states. The change of legal transplant was the beginning of divergence of legal system between China and South Korea, and the legal divergence between two states became increasingly wider due to the establishment of different political systems. The following section demonstrates key questions of my thesis.The study shows how both states that have similarities in terms of geography, culture and custom experienced conflicts in the process of legal transplant from western states, and how the conflict caused legal modification. The main contributions of this thesis are to look at dissimilarity and similarity in the development of modern legislation between two states, and conflicts arising from changes of political system and people's perspective on legal transplantation.This thesis uses the approach of comparative civil law because it enables us to understand conflicting processes in detail due to its connection with every day life. The historical period looked at in this study limits in the twentieth century, where modern laws began to be transplanted, and criminal law and civil law were initially separated. This thesis explores the process, the significance and the localization of legal-transplant from western states in China and South Korea and its implication on civil law in two states. The results are as follows.In the China of late Qing dynasty western legal systems were transplanted in a passive way. China localized the transplanted legal system at certain levels and similarly formed it like the Continental law until the Republic of China. Since the establishment of the People's Republic of China, its legal system-based on Marxism-evolved by combining the Continental law, Anglo-American law and Chinese traditional law.On the other hand, the legal transplants in South Korea began by seeking a new paradigm of life. The process of legal transplantations from Western states proceeded without considerable obstacles because the Korean society at the beginning of legal transplants was at the level of feudal society of Western states. Most of all, Korean civil law accepted the most typical legal system from France, Germany and Switzerland, and Korea mainly transplanted the model for case law from the Anglo-American law as well as from various states. The legal transplantation from various states is very rare case in the world, and this resulted from the political demands of authoritarian governments rather than the necessity to enhance civil law itself.In the context of traditional society, there were similarities in their civil laws between these two states because Korean civil law-making were based on the law of Tang or great Ming dynasty. However, since the establishment of Republic of China dissimilarities in these laws between two states have gradually emerged, and these civil laws of two states explicitly diverged after the establishment of the Chinese Communist Party. Marriage and property laws representatively demonstrate distinctions between the two legal systems, and these distinctions resulted from the character of the dominant social system.In the case of Chinese transplants of Western civil law this thesis demonstrates the conflict of the sense of responsibility, etiquette and custom through maintenance of fully system and the debt situation. In terms of modification, it points out that the transplants of civil law evolved from a point to a face, from simple articles to institution, and from institutions to legal culture. This reflects the way that Chinese civil law began to develop independently. With economic and social development the great efforts of Chinese scholars, legal experts and intelligent groups in the transplantation process provided an opportunity to keep pace with Western states. The opportunity resulted in successful legal transplants in China.Unlike Korea, that transplanted laws through Japan and continually amended laws, Chinese legal transplants proceeded in a way of directly transplanting Continental law codes. China therefore had comparatively greater conflict, and since the ideological change of state the conflict deteriorated due to reckless transplantation of Soviet Laws. This resulted in the loss of Chinese traditional law.Chinese traditional law culture included laws that ideologically underpinned and affected authoritarian rule. Despite the fact that from an evolutionary point of view Chinese traditional laws included democratic and civilized concepts, these advantages in the Chinese traditional law were ignored. These advantages seem to be meaningful in the process of contemporary legal amendment along with the transformation of economic system from the planned-economy to the market-economy.In the case of Korean civil law this thesis looks at the Domestic Relations Law and the succession law in order to demonstrate the conflict and modification of western civil law in the transplantation process in Korea. Both laws caused great conflict because Korea was a society under strong Confucianism. In fact, the Domestic Relations Law and succession law were influenced by Japanese law, and the Domestic Relations Laws of Japan was directly transplanted from Germany. The initial code of Japanese civil law was base on the French one excluding the Domestic Relations Laws. Japanese Domestic Relations Laws based on German feudalistic ideas allowed the maintenance of pre-existing family and domestic relation systems. This law was directly transplanted into Korea. As a result, one of the representative Domestic Relations Laws is the family registry system, which was abolished in 2007. Yet Korea amended the code of civil law many times in order to remove vestiges and legal inferiorities of Japanese imperialism. Through these legal amendments Korea succeeded in modernizing civil law.To evaluate the effects of modified western civil law in Korea we need to look at two aspects; executive organizations and the general public. This is because civil law's nature requires different actors for enactment, enforcement and transplant should be considered to explore the process and effect of legal transplants. The ability to explicitly evaluate them is limited as a result of this nature. From the fact that legal dispute resolution relies on trial in court in South Korea, this thesis only assumes that institutional framework of the law has been formulated, but it has not been recognized in terms of perspective.This research has two implications in different areas. On one hand, through the history of civil law in the process of transplantation it suggests directions of legal enactment to improve civil laws in two states law. On the other hands, it provides distinctions between the civil laws of China and Korea for the purpose of comparative law study.It is true that research on law enactment and law is developing rapidly. Many studies have been produced, and new laws have been enacted along with the actual circumstance in both states. However, previous researches on law in South Korea have paid little attention to laws of China, Japan and Korea. In addition, it will need more comprehensive approach to understand transplantations from Western law. In China, the differences between the Chinese social system and others need to be considered when studying the modernization of the legal system.As mentioned this study demonstrates that civil laws in both states have universality and diversity, and have developed along with social changes. They also share common experience and perspective on openness. This will be important contributions of this study. These contributions should be developed further by more research on comparative civil law between China and Korea. Future research should take account of a wider amount of cases.