Opinion Leaders' Digest 99-12
Date: Apr 2, 1999
Author : Kwang-Kyu Yim, Attorney at Law

Desirable relief of people's violated rights

Last week reportedly in daily newspaper, President Kim Dae-jung instructed the Cabinet to prepare revised bill of judicature by the end of August and emphasized to expand people's right system to relieve people's violated right.

The most significant purpose of law is to protect people's right well so the success or failure of this judicature reform depends on how well the people's right will be protected. In this respect, President's instruction is a very desirable one.

Origin of right

The general idea of right as understood now in our daily lives is only about 300 years old. A sort of bill of rights called Magna Carta was made in England 784 years ago, but it was used for the powerful nobles by defining prohibitions and conditions in order to restrain the weakened king from reckless taxation. By the 17th century, people used to complain to the more powerful and influential class to get their stolen lambs back or to appeal for flogging criminals. Looking back upon the long human history, it reminds us how long time was taken to settle the idea of right.

The modern concept of right was introduced into Korea by Japanese imperialism. As a result, naive people who had experienced no trouble without laws were suddenly deprived of their lands only because they had no proper registration. Even nowadays those numerous cases of losing whole property by standing guarantee show that our people do not clearly understand their rights and duties yet.

Right exists on the precondition of duty

Right does not exist before duty exists. And the rightful person means one who can demand the obligor's property such as his sweat or accumulated purchasing power. When law protects one's right by exercising government power, it is depriving the obligor's property compulsorily to transfer to the rightful person. Though the obligor suffers troubles, it is assumed that the right (no matter what it is credit, cash, deposit, stock, real estate, etc.) of the rightful person did good for neighborhood, that is, the rightful person achieved such a right because he worked to the satisfaction of consumers.

Of course, sometimes the right is taken by unfair means. Nevertheless, the right becomes no more the right if the precondition of law about the right is destroyed. For example, while Mr. Kim's property is protected, Mr. Lee's property is ignored because Mr. Lee's property is presumed to have been acquired by unjust means. Then the principle of 'rule by law' collapses and as a result neither of them is protected by law. This is why the stability of law is necessary and it is the foundation and precondition for relief of right.

Is this correlation of right and duty firmly established in Korea? Since sometime the landed proprietor have to pay the squatter for returning land back. When the Supreme Court building was being constructed, the squatters rather demonstrated for their right to live instead of thanking for the exempted rentals thus far. Alternative solution should have been sought for the miserable squatters, because stability of law was damaged by approval of such a wrong claim. In addition, people hope to secure deposit or to possess a building by working hard while young, because they want easy income when old. It is to be considered only blaming such real estate possession or interests income for unearned income, without thinking of the wealth's origin. Instead of using the prejudiced term of 'unearned income', we have to inquire whether the origin of income is fair or not.

The complex correlation of right and duty

As people have many rights and duties correlated with one another, the correlation of right and duty is never a simple matter.

The lessor can demand rental and the lessee is right to ask the lessor to repair broken floor. The owner can inquire into quality of supplied materials and the contractor can request for installment (divided payments for construction) to be paid on time. The employer orders good work and the employee demands salary even though he is not engaged in company work as a full- time unionist. Bankrupted company has the right to call for preservation of its property while the creditor bank has the right to collect debts promptly.

If we examine this complicated correlation of rights and duties, we can understand the numerous relations of people while they produce things, work, and exchange, and when company issues bills and bank lends money. That is, most of correlation of right and duty has some connection with economic matters. Therefore, the judges of advanced countries became interested in economic principles and finally they got nicknames such as 'economist in judge's robe' or 'manager who is looking down from the bench'.

However, let's we look into the course of becoming a judge in Korea. Normally those who gain good mark at the scholastic ability test enter the law department in university, and then they immediately start to memorize fundamental rights in the constitution, faith and fidelity of the civil law, and lawful measures of criminal procedure code. We have to carefully consider what kind of studies is worked to pass the judicial examination and what kind of experiences is undergone to be appointed as a judge. Such considerations will be the essential clues for judicature reform now.

Relief expenses for violated right

The government's compulsory execution for the rightful person's violated right and pushing the obligor to carry out duties will accompany considerable cost. Let's suppose, a creditor having claims for 100 million wons tries to be relieved by law. About 10 million wons is estimated for lawyer's fee, court expenses, executor's fee, and so on. Moreover, he has to put up with pains during legal proceedings and psychological burden by becoming mutual enemies with the opposite party. If the obligor offers 80-million-won proposal for mutual consent and if he accepts it, the supposed amount for legal proceedings is agreed for 20 million wons between both parties in silence. In this case, the relief expense for the 100-million-won right is equivalent to 20 million wons.

Moreover, if every relief should pass legal procedure, it would waste tax paid by people. If disputes between fellow traders, arguments on cancellation of cheated contract, company owner's claim for compensation which was recklessly spent by director, and other disputes were all brought to the court, the limited court and execution capacity would be exhausted only to relieve the careless victim who chose wrong fellow, the cheated because of vain ambitions, and company owner who employed wrong person, etc. Such kind of relives will burden the taxpayer who are not careless, having no vain ambitions, and more cautious.

Therefore, the best way will be the voluntary execution of correlation of right and duty among the people. To establish this device, the person who violate other's right should be charged with considerable loss to become afraid of laws.

However, in Korea, when one broke the other's nose, the judgement will decide 4.79 million wons to be paid as compensation which covers 1.23 million wons for nose operation, 0.56 million wons for damage of daily allowance (except company employee as he can still receive monthly salary), and 3 million wons for consolation (Even a death receives about 25 million wons for consolation.). So no one dares to spend 4 million wons for court expenses and hiring lawyer to gain such a small compensation.

Even though a person intends to appeal to the court for his violated right, there are around 1,000 prosecutors in service (excluding the chief public prosecutor) working 8 hours for 300 days a year, that is, yearly 240 million hours of prosecutor's investigation is available. Moreover, the number of prisoners in jail exceeded 60,000 long ago, and budget of some million wons is being spent to feed each prisoner. So in many cases one who broke other's nose usually presents at the court several times and is granted a stay of execution.

In advanced countries, there's good understanding of reality that the government cannot relieve everybody's violated rights, and one who neglects or tramples down other's right is sentenced to quite a serious damage so that people are afraid of breaking law and voluntarily the correlation of right and duty is settled down. By this way, there exits minimum of disturbing other's right. Such kind of device is 'punitive damage'. For the previously stated example of broken nose, judge will decide totally 104.79 million wons of compensation that covers operation, daily allowance, consolation, and additionally 100 million wons as punitive damage.

Instead of expanding governmental organization¡¦.

I am afraid, any additional governmental organization would be established with justification of the importance on relief of people's violated right. This is the worst solution, because it is doubtful how many victims can be saved by such an organization. Moreover, since taxes are taxpayer's common property (right), spending tax for uncertain payment can be another violation of right.

And under the name of right's relief, there should be no approval for legislation that acknowledges, as the right, the demand for part of tax, which is the common claim of the people, without working hard. Spread of such principles of anti-market economy will violate the whole people's right indirectly.

The best way to relieve people's violated right is to make people undergo the genuine meaning of right, and to improve the judicial judgement to understand the complexity of correlation of right and duty and to treat it desirably, and to strengthen compensation on violation of right to make people believe that violating other's right brings about a certain loss.

(The view expressed here is the author's personal view. It is not the official view of the CFE.)