CONTRACT LAW & NEGOTIATION
관리자 
20-05-19 14:37
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[What are some salient features of commercial contract law in South Korea?] I think it is helpful to look at Korea through an historical lens. Depending on how far you go back, Korea’s legal system can probably be traced back to Roman law upon which the Napoleonic Code was based. Boney was of course rather successful in disseminating his brand across Europe and it made its way across the Germanic states. A little later, the Emperor Meiji of Japan was looking to update and improve his country’s legal system. He sent envoys across the world to benchmark various legal systems. It was determined that the Prussian system was the best and this was broadly adopted in Japan. Japan subsequently occupied Korea from 1910 to 1945 and imposed various of its institutions on the country including its legal system. Korea is a civil law jurisdiction. Its contract laws are enshrined in the Civil Code. The system itself is excellent and has been translated into English which makes it accessible to foreigners. The main provisions affecting commercial law are contained in the Civil Act and Commercial Act. Whilst the legal system has its roots in Europe, it has also been influenced on a number of different levels by the USA. Korea was partitioned in 1945 and was decimated by the war from 1950-3. It was then one of the poorest countries in the world; now it is one of the most technologically advanced and the 11th richest by GDP. This is known as the Miracle on the Han, the river which bisects Seoul. Its growth was characterised initially by large family owned conglomerates known as chaebol initially in heavy industries but later more broadly in technology, automobiles etc. The Korean economy is characterised by these relatively small number of companies having a large degree of horizontal and vertical integration. These companies – Samsung, LG, Hyundai etc. are of course household names. Korea is also a Confucian society which means among other things that its workplaces tend to be very hierarchical. It does have a highly educated and technologically savvy workforce though there are frequent accusations (sometimes misplaced) of a lack of creativity. On many levels, it is international in its outlook and is keen to become a significant hub for business and commerce in East Asia. [Cultural attitudes to negotiation] The aphorism that the business culture is different but the same commercial considerations always apply would be relevant. Like many cultures, Korea is a relationship based society. This is reflected to a certain extent in attitudes to contracts. One explanation for this is that Korea’s main crop is rice. In the pre-mechanised era, it took a lot of cooperation to successfully produce a crop. The production of wheat is perceived as a more individualistic pursuit. Whilst this may be somewhat apocryphal, there is always an element of truth in there somewhere and this is arguably manifested to a certain extent in the attitude towards contracts. In western cultures, parties who do not know each other would contract. Contracts would tend to be lengthy and detailed. In Korea, the relationship was the first step. The contract was perhaps less important. Contracts tend to be much shorter and perhaps less detailed. This situation has changed somewhat with Korea’s economic development and increasing globalisation. There is certainly a delta where east meets west and it might not be the most comfortable one for a western hemisphere lawyer. Of course, the same commercial considerations apply; these considerations are universal – getting a good deal and making sure you get paid etc. Perhaps you just need to look at the issue in a different way. There is certain obvious prophylactic action you can take when the attitude to contracts is perceived to be less important. Two obvious ones spring immediately to mind. The first is that you should do your due diligence and make sure you strike a good commercial deal – mitigate commercial risk. The other is to pay a lot of attention to managing the contract well. [이 게시물은 관리자님에 의해 2020-05-19 14:38:09 뉴스레터_eng에서 이동 됨]