Customary Law in South Korea — Focusing on Civil Cases —

The purpose of this article is to demonstrate how customary law in Korea is formed, maintained, and transformed by introducing and analyzing several Supreme Court rulings related to customary law issues. The development of customary law in Korea is closely related to its historical background, from the Joseon to the current Republic of Korea, with the Japanese Occupation in between. The structure of the judiciary also exerts a significant influence. There is an ongoing debate regarding whether the authority to declare customary law unconstitutional lies with the ordinary courts or with the Constitutional Court. The majority opinion in 2002Da1178 determined that traditional customary law, which recognized only men as eligible for membership in a jongjoong, is no longer valid and women automatically become members when they reach the age of majority, just like men do. The concurring opinion disagreed, stating that strictly adhering to the principle of gender equality in a literal sense is too mechanistic and cannot be supported. In 2007Kagi134, the Supreme Court ruled that customary law related to civil matters is not subject to constitutionality review by the Constitutional Court. However, the Constitutional Court stated that customary law holds substantial legal effect similar to statutes, and therefore, it falls within the scope of its constitutionality review. The debate is still ongoing. Additionally, the paper discusses the Supreme Court's 2017Da228007 ruling, which addresses compensation for tomb base superficies acquired by prescription. The majority opinion holds that payment is required upon the landowner's request, aligning with conventional wisdom. However, the concurring opinion suggests applying similar legal norms from analogous cases when customary law doesn't specify fee obligations. Conversely, the dissenting opinion argues that past precedents don't necessitate compensation for tomb base superficies.