A comparative legal analysis of the institutions of non-contractual liability in the two Koreas

Abstract

The article provides a comparative legal analysis of the tort law of the Republic of Korea and the Democratic People’s Republic of Korea. The existing difference between the legal institutions of the two Koreas is considered, taking into account the influence of foreign legislation, among which special attention is given to the norms of the Russian Soviet Federative Socialist Republic (RSFSR). The author of the article shows that the historical roots of legal norms and the specifics of the political and economic system played a decisive role in the formation and development of the diametrically opposite institutions of tort law in the two Koreas. For example, the Civil Code of the Democratic People’s Republic of Korea, in contrast to the Civil Code of the Republic of Korea, establishes the principle of presumption of fault, which is a consequence of the direct and inevitable impact of Soviet law on North Korean legislation. Considering that, in contrast to bourgeois pre-revolutionary Russia, where, as in most Western countries and the Republic of Korea, the principle of the presumption of innocence in tort obligations was recognized, a change in the approach to fault took place in Soviet Russia due to socialist ideological factors. It was these ideological principles that formed the basis of the legislation of the Democratic People’s Republic of Korea. Meanwhile the Civil Code of the Republic of Korea from the very beginning was based on completely different principles, as was the case in most Western countries. In addition to general tort, this article studies the norms of special torts, among which the emphasis is on the norms on liability for harm caused by minors and for harm caused by activities that create increased danger to others. It is these norms that best reveal the differences in the legal policy pursued by the legislators in South and North Korea. As is the case with general tort, different ideological principles that form the basis of legislation in the two Koreas led to a difference in the law of special torts. Although at present, the gap between South and North Korean tort institutions is not critical, it will become a serious problem in the medium to long term, as it will negatively affect the potential for unification of the two Koreas. 

Keywords:

Tort liability, Republic of Korea, Democratic People’s Republic of Korea, Soviet law, principle of the presumption of fault, principle of the presumption of innocence