Codification in the 21st Century—A View from Korea

Abstract

The paper offers a brief overview of the making of the Korean Civil Code which is based largely on Japanese Civil Code. The latter was modelled after the First draft of the German Civil Code. To put these civil codes in perspective, the paper gives a summary account of three distinct types of civil codes: French Civil Code, California Civil Code and German Civil Code. In France, the Code (legislation) came to be regarded almost as the sole source of law, which was not intended by the drafters of Code Civil. In California, on the other hand, the cases (adjudication) remained as the most important source of law in spite of the Code. The paper goes on to discuss the characteristic features of the German Civil Code. It is suggested that the overly academic notions of “juridical act” and “declaration of intent” (upon which the German, Japanese and Korean Civil Codes are premised) are of little practical use and tend to overstate the difference between the civil law and the common law. The French and the German Code were the expression of the ideals of legal unity of a nation and romantic nationalism. In the post-nationalistic era of 21st century and beyond, the task of law-making should be undertaken through a partnership between legislation (a common Code which sets out broad principles universally applicable to diverse nations) and adjudication (cases where each county’s judiciary shapes the law of the country). In formulating a common Code, the concepts which tend to exaggerate the gap between civil law and common law (such as “juridical act” and “declaration of intent”) should be discarded in favour of the nations of “contract” and “obligation” which have a near universal appeal.