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Korean Reunification from a Legal Perspective

After taking office, Park Geun Hye has expressed the government’s strong will towards unifying the two Koreas through the Dresden Declaration, and has inaugurated a special reunification committee for establishing practical, detailed reunification plans. As she engages with Kim Jong Un’s unstable reign over North Korea, expectations of reunification are increasing. If unification happens suddenly, social integration will become one of the main issues and hence the maintenance of regulations will be essential. Since the study of Korean reunification legislation so far has revolved around research into North Korean law itself, it is time to focus on ‘reunification laws’ with action plans that can address different forms of unification.

To determine the scope for the study of reunification laws, the concept of reunification laws must first be identified. Reunification laws can generally be defined as, “A system of legal principles which aims to unify Korea as one community.” The field for the study of reunification laws involves the statutes for the exchanges between the two Koreas under the division and North Korean legislation. Next, from a comparative law perspective, the enactment of legislation in the previously divided countries during their periods of unification and separation should be reviewed. The German and Yemeni unifications, as well as the process of legislative cooperation in Cross-Strait Relations and the progress of legislative maintenance following the Vietnamese reunification, are all examples to learn from. In addition, it is critical to have a guarantee of the reunification laws to apply after unification into a single state.

However, the most important issue is the assurance of temporary measures to apply to the problems that may occur during the reunification procedure. Due to the long period of separation there are major socio-cultural differences between the two Koreas, which will be the cause of conflict. Legislation during this transition will be geared towards minimizing such societal setbacks, in order to showcase the behavior of an exemplary unified country. Following the Korean liberation, Korea's failure to independently determine the legal terrains of its peninsula escalated and ultimately resulted in the country's division. It is evident from analyzing the roots of this painful part of Korean history that the lack of thorough preparation towards the reunification may lead to unexpected dilemmas. Hence, we need detailed legislative preparations that can accommodate a range of reunification methods.

There are numerous standards that could be applied to analyzing the reunification. Depending on the form of government, reunification could lead to a unitary state or federal state, and unification could be done by absorption or mutual agreement, either by peace or force. Nevertheless, the key element to reunification is the urgent demand for legislative preparation. Hence the following can be assumed, that the speed of reunification is the standard for analysis. Firstly, a slow reunification through cooperation of the two states or the gradual downfall of North Korea can be expected. Under a process akin to the unification of North and South Yemen, there is greater assurance for the time available to prepare legislation for the reunification. However, in the case of an abrupt reunification, for reasons such as a sudden breakdown of the North Korean system, a variety of unanticipated complications could arise during the social integration process. There are limitations to using the German Reunification as a model for the unification of Korea, as there had been ongoing exchanges between East and West Germany which lessened the socio-cultural tension.

Therefore, to effectively overcome transient miracle effects of the reunification, sensible legislation should be made, and practical bills are required. Furthermore, in order to preserve the consistency of information in the legislation, the general principles and individual bills should be designed to be compatible. Likewise, it is also important to determine the degree of recognition to be granted to pre-existing North Korean legislation, as the total abolition of North Korean legislation has the potential to fuel a range of issues. Specific areas to be further examined include the North Korean court of justice, executive departments, and laws regarding the police department, as well as food assistance programs and property ownership for North Korean citizens. Whether the wishes of the North Korean citizens will be followed in the reunification preparation legislation is also an issue which demands careful consideration.

The study of reunification law cannot continue to be confined to studies on a personal dimension. It is necessary to thoroughly prepare for various possible methods of unification and critical that the provision of statutes under circumstances is subject to the ministry in charge. In particular, a clear decision must be made on whether the Ministry of Justice or the Ministry of Unification will be responsible for the preparation of the reunification laws, to prevent problems arising from wasting resources on overlapping research. Through these efforts, we must prepare for our future as a reunified state by preparing bills for a variety of forms of unification.

Translated by Hyunju Ban

Video outlining President Park's reunification initiative.

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