Pluralism anxiety and globalization: development of constitutional law in the new framework.

• Author: Choi, Kyungho

ABSTRACT

Globalization permeates every pore of society, and the globalization of the legal profession is no exception. This Article provides the comprehensive analysis of the relationship between globalization of the legal profession and the development of constitutional rights in China and South Korea. The issue's significance is best illustrated by the theory of benefits from legal pluralism and analysis of legal globalization's positive influence on the promotion of constitutional rights, as well as on the idea of the evolution of global constitutionalism. This Article details the current hurdles in the development of constitutional rights in China. The solution needs to harmonize with China's unique political circumstance. While preparing this Article, I found the dysfunctional side of the role of Chinese human rights lawyers. Therefore, it is important to provide role models and success stories of human rights lawyers who have resisted inappropriate power, developed constitutional rights, and acquired peoples' respect. Chinese legal educators need to make an effort to find educational role models worldwide (global role models). In addition, this Article examines whether an opening in the area of domestic legal practice to Chinese lawyers in foreign-based global law firms in China could promote a flow of more diverse perspectives regarding fundamental rights to the courts. As of September 2013, Korea has partially opened its legal market, and it is scheduled to open its legal market completely in 2017. Unlike Korea, according to the law regulating foreign law firms in China, Chinese lawyers employed at foreign law firms in China may not become involved in Chinese legal affairs. My suggestion is to amend Articles 15 and 17 of the regulation and allow these PRC licensed lawyers of global law firms to practice Chinese domestic law. China could benefit from the promotion of creative interpretation of the Chinese Constitution by diversified legal professionals in global law firms in China.

1. INTRODUCTION

   "There is no war between the Constitution and common sense." (1)

   --Justice Tom Clark

   Globalization (2) permeates every pore of society, and the globalization of the legal profession (3) is no exception. The United States and the United Kingdom have been key countries in the globalization of the legal profession. The purpose of this Article is to examine the relationship between globalization of the legal profession and the development of constitutional rights. (4) Although there is no clear definition of the term "global constitutional law," (5) I categorize global constitutional law as the constitutional principles which should apply to the human being irrespective of cultural and legal differences between countries. This Article investigates how the globalization of the legal profession could be a useful tool for maximizing the recently well recognized notion of global constitutionalism in China and South Korea. The process of globalizing the legal profession includes denationalizing the legal markets. China--a country with a large number of global lawyers that also operates under a distinctive political system--provides a somewhat unique opportunity for examining the impact of global lawyers in terms of the public and private interests of the country where they practice. Demand for foreign legal services by multinationals in China has increased since China instituted their Open Door Policy in 1978. (6) The first American law firm to gain footing in China was Coudert Brothers in 1979. (7) As of December 31, 2011, 30 years after the establishment of the Chinese representative office of Coudert Brothers, the Ministry of Justice of China allowed 208 registered foreign law offices from several foreign countries, including the United States, the United Kingdom, France, and Germany. (8) In March 2009, the Korean National Assembly finally passed a bill authorizing a partial opening of the domestic legal services market. (9) The purpose of the Korean Foreign Legal Consultants Act is to establish prerequisites to qualify, register, and work as a Foreign Legal Consultant in South Korea. (10) After the implementation of the Korea-US and Korea-EU Free Trade Agreements (FTA), Korea opened its legal market to FTA member countries with Korea. (11) Several U.K. and U.S. based global law firms submitted applications for the approval and establishment of representative offices in Korea. As of November, 2013, the Ministry of Justice of Korea approved the applications of Korean representative offices from global law firms, including Clifford Chance, Ropes & Gray, Shepperd Mullin, Cleary Gottlieb, Simpson Thacher & Bartlett, Paul Hastings, McDermott Will & Emery, and Squire Sanders. (12)

   A high speed of economic development, planned and controlled by the government, has often been used as a defense or excuse to ignore the fundamental rights of people. China (13) and South Korea have been no exception to the trend of recent economic development at the expense of concern for fundamental rights. (14) The production of a greater quantity of goods, and the economic success that results, can contribute to a higher quality of life. However, it is also important to increase quality of life by advancing the protection of fundamental rights. Now, China and South Korea need to concern themselves more seriously with maintaining a proper level of fundamental rights recognized by developed countries. (15) Although South Korea might have worked to address this concern earlier than China, the room for advancing fundamental rights in Korea is still huge. China, with its unique political system, might encounter more hurdles on the way to becoming a rule of law country that sufficiently protects fundamental rights. (16)

   In this Article, the role of two main types of actors, "inside actors" (domestic legal professionals) and "outside actors" (foreign legal professionals) is discussed. This Article also examines the relationship between the broad scope of the legal market opening and further development of constitutional rights. Prior to the discussion of this relationship, Part I details current hurdles in the development of constitutional rights in China and South Korea, comparing their levels of protection with global standards of protection. (17) Part II discusses plausible development of constitutional rights through the globalization of the legal profession, including opening the legal market more broadly and the globalization of legal education - sharing role models in the global setting. This discussion is based on the theory of benefits from legal pluralism and analysis of legal globalization's positive influence on the promotion of constitutional rights, as well as on the idea of the evolution and convergence of global constitutionalism. (18)

2. COMPARATIVE STUDY OF THE LAWYER'S ROLE IN THE DEVELOPMENT OF CONSTITUTIONAL RIGHTS IN CHINA AND SOUTH KOREA: IMPROVING CONSTITUTIONAL RIGHTS IN THE DOMESTIC SETTING

   1. Framework of Conflict in Constitutional Law in China

      1. Conflicting Provisions in the Chinese Constitution and China's Separation of Powers

         To understand the legal system of a country well, it is crucial to know the recent history of the country and the political environment. It is even more crucial to know the recent history of the country in order to study the areas of constitutional law and the human rights status of a country. Existence of a well established statute by itself is not enough to guarantee the protection of these fundamental rights. (19)

         Western criticism of the Chinese legal system often focuses on criminal procedure. (20) In the practice of law, violations of Chinese criminals' constitutional rights, such as due process and presumption of innocence, have been noted. (21) Article 5 of the Chinese Constitution prescribes: "All state organs, the armed forces, all political parties and public organizations and all enterprises and institutions must abide by the constitution and the law. All acts in violation of the constitution or the law must be investigated." (22) The third amendment of the Chinese Constitution (1999) adopted for the first time the concept of the rule of law. (23) As Article 5 of the Chinese Constitution states, China is willing to recognize and respect the principle of the rule of law in the law itself. One commentator states: "China's Criminal Procedure Law per se transplants most of the rules in Common Law system including the evidence standards and burden rules." (24) However, as of 2013, in real practice, several criminal incidents show the insufficient function of the rule of law in China.

         Based on constitutional analysis, one reason for the failure of rule of law in China might be found in the dysfunctional status of the separation of powers. Absolute power is centered in the Communist party. The Communist party's absolute power reaches over the administration, judiciary, and legislature in China. In fact, there is no system of checks and balances against the Communist party. (25)

         Another important limitation to the rule of law in China can be found in the relationship between Article 5 and the Preamble (26) of the Chinese Constitution. (27) One commentator notes:

         The Constitution itself illustrates the conflict between the authority of law and the authority of the Party in two contradictory provisions. On one hand, the Constitution provides that all organizations, including political parties, are subject to the law. On the other hand, the Constitution recites the "four cardinal principles" as the pursuit of socialism, adherence to Maoist-Leninist political theory, the method of proletarian dictatorship, and, not least, the leadership of the Communist Party. (28)

         In other words, the Chinese Constitution states that the Communist party is subject to the rule of law without exception. However, the Chinese Constitution simultaneously purports to "elevate the Party to a privileged...