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The Law and Culture of the Apology in Korean Dispute Settlement (With Japan and the United States in Mind)

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The Law and Culture of the Apology in Korean Dispute Settlement (With Japan and the United States in Mind) Michigan Journal of International Law Volume 27 Issue 1 2005 The Law and Culture of the Apology in Korean Dispute Settlement (With Japan and the United States in Mind) Ilhyung Lee Center for the Study of Dispute Resolution, University of Missouri-Columbia Follow this and additional works at: https://repository.law.umich.edu/mjil Part of the Comparative and Foreign Law Commons, and the Law and Society Commons Recommended Citation Ilhyung Lee, The Law and Culture of the Apology in Korean Dispute Settlement (With Japan and the United States in Mind), 27 MICH. J. INT'L L. 1 (2005). Available at: https://repository.law.umich.edu/mjil/vol27/iss1/1 This Article is brought to you for free and open access by the Michigan Journal of International Law at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of International Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. THE LAW AND CULTURE OF THE APOLOGY IN KOREAN DISPUTE SETTLEMENT (WITH JAPAN AND THE UNITED STATES IN MIND) Ilhyung Lee* I. APOLOGY AND THE U.S.-JAPAN Axis ..................................... 6 A. Apology: The Background................................................. 6 B. Apology: The U.S.-JapanAxis ........................................ 13 II. KOREA ...................................................................................... 17 A. Korea: The Traditionaland Contemporary..................... 18 B. Harmony, Hierarchy, Collectivism, Shaming .................. 21 1. H arm ony .................................................................. 21 2. H ierarchy .................................................................. 23 3. Korea's Collectivity ................................................ 26 4. Shaming in Korea .................................................... 27 5. Summary of Cultural Indicators .............................. 29 III. KOREAN APOLOGY, KOREAN LAW .......................................... 30 A. Sah-gwah [Apology] ....................................................... 30 B. Apology and the Legal Institutions................................. 36 C. The Court-OrderedApology ............................................ 37 1. Japan ......................................................................... 38 2. The United States ..................................................... 41 3. Korea, Comparatively .............................................. 46 IV . C ONCLUSION ............................................................................52 The comparative commentary regarding the role of the apology in dispute settlement has in large part revolved around the U.S.-Japan axis. Beginning with the pioneering work of Professors Hiroshi Wagatsuma and Arthur Rosett,' commentators have argued that cultural norms ex- plain the Japanese tendency to apologize when one's actions have * Associate Professor of Law and Senior Fellow, Center for the Study of Dispute Resolution, University of Missouri-Columbia. B.A., M.A., J.D. For their counsel and com- ment, I thank Professors Richard Buxbaum, Jonathan Cohen, William Fisch, Tom Ginsburg, Whitmore Gray, Setsuo Miyazawa, Kazuo Makino, Eri Osaka, Richard Reuben, and Sang- Hyun Song. I also benefited from the opportunity to present portions of this Article at the 2004 annual meeting of the Association for Asian Studies in San Diego, California; the University of California-Berkeley, Center for Korean Studies; the University of Chicago, Asia. in the World Workshop; and the Seoul National University College of Law, Foreign Authority Fo- rum. Judge Sang-Kyun Jang was an invaluable resource in this project. Special thanks to the judges and attorneys in Korea who participated in the surveys described herein, and to Woon- seol Cho, Bomsinae Kim, Hyun Kyung Kim, Esq., professional interpreters, for their contribution. For translations and their extraordinary assistance, I thank Wookyung Kim, Esq., Heekyoung Kim, Esq., and Chul-Jae Lee, Esq. Leslie Ashbrook and Evan Fitts provided able research assistance. 1. Hiroshi Wagatsuma & Arthur Rosett, The Implications of Apology: Law and Cul- ture in Japan and the United States, 20 LAW & Soc'v REV. 461 (1986). Michigan Journalof InternationalLaw [Vol. 27:1 resulted in the significant injury of another and the U.S. inclination to refrain from apologizing or to deny responsibility in the very same situa- tion.2 The legal system in each country jibes with the respective societal inclination or disinclination to apologize. Recognizing that the apology is an "important ingredient in resolving conflict,"3 Japanese legal institu- tions have reinforced the societal use of the apology4 and integrated it into their justice system.5 The culture of Japan is such that all of society, including the bench and bar, expects and demands an apology from a party causing harm or injury to another. There is no such expectation stateside. The societal inclination not to apologize in the U.S. setting is matched (and perhaps shaped) by a legal culture that advises clients not to issue an apology for fear that it may be used against the apologizer as an admission of legal liability.7 In the United States, the apology takes a much "lower legal priority";8 the "legal doctrine based on apology" is simply "underdeveloped"; 9 and the disconnect between the apology and the legal system continues. Perhaps Japan is frequently selected as the country of contrast to the United States' because it is a "radically different culture,'"" a society with persons of a different race and ethnicity and one with different val- ues, norms, and attitudes. Although Japan's neighbors in East Asia could also fit this description, the apology commentary addressing Korea'2 and 2. E.g., Jonathan R. Cohen, Advising Clients to Apologize, 72 S. CAL. L. REV. 1009, 1012-13 (1999) [hereinafter Cohen, Advising Clients]; Jonathan R. Cohen, Legislating Apol- ogy: The Pros and Cons, 70 U. CIN. L. REV. 819, 850 (2002) [hereinafter Cohen, Legislating Apology]; Deborah Levi, Why Not Just Apologize? How To Say You're Sorry in ADR, ALTER- NATIVES TO HIGH COST LITIG. 147, 164 (Sept. 2000). 3. Wagatsuma & Rosett, supra note 1, at 493. 4. John 0. Haley, Comment: The Implications of Apology, 20 LAW & Soc'Y REV. 499, 506 (1986). 5. John 0. Haley, Apology and Pardon:Learning From Japan,41 AM. BEHAV. SCIEN- TIST 842, 851 (1998). 6. Another commentator has used the terms "apologizer" and "apologizee" in the apology discourse. Levi, supra note 2, at 163. 7. See Wagatsuma & Rosett, supra note 1, at 479, 483, 485; see also V. LEE HAMIL- TON & JOSEPH SANDERS, EVERYDAY JUSTICE: RESPONSIBILITY AND THE INDIVIDUAL IN JAPAN AND THE UNITED STATES 47 (1992); Cohen, Advising Clients, supra note 2, at 1010; Erin Ann O'Hara & Douglas Yam, On Apology and Consilience, 77 WASH. L. REV. 1121, 1122 (2002). 8. Wagatsuma & Rosett, supra note 1, at 493. 9. Id. at 494. 10. Indeed, in the law dispute resolution commentary, discussion of the apology in the U.S. setting includes the reflexive attachment that the U.S. practice is in sharp contrast to that of Japan. E.g., Cohen, Advising Clients, supra note 2, at 1012-13; Cohen, Legislating Apol- ogy, supra note 2, at 850; Levi, supra note 2, at 164. 11. LEONARD L. RISKIN & JAMES E. WESTBROOK, DISPUTE RESOLUTION AND LAWYERS 270 (2d ed. 1997); Cohen, LegislatingApology, supra note 2, at 851. 12. The limited commentary addressing the apology in Korea includes Yong-Chul Im & Soon-Mi Kim, Sah-jweh heng-we-eui sah-hwe-hwa-yong-rohn-juhk il-go-chal: hahn, il, joong dae-hahk-seng-euljoong-sim-eu-roh[Research on Sociological Effect of Apology: Focus on Fall 20051 The Law and Culture of the Apology China'3 is far more limited. 4 Yet the apology is no stranger to Korean society. 5 A politician demanding an apology from another is a staple of Korean domestic politics.'6 When two middle school girls were crushed to death by a U.S. armored vehicle in a training exercise near Seoul in 2002, the Korean people's demand for an apology would not be satisfied until the President of the United States apologized directly. 7 In September Korean, Japanese, Chinese College Students], Sah-hwe-uhn-uh-hahk [J. SocIOLINGUISTICS] 89 (1997) (on file with author); Yunghwan Kwon, Cross Cultural Differences of Apology Between Korean and American (2000), available at http://library.yonsei.ac.kr/dlsearch/Theme/ Yonsei/main.asp; In-Kyu Kim, Hahn-guk-uh sah-gwah hwa-heng-eui joong-gahn-uhn-uh- rohn-juhk yuhn-gooh [An Interlanguage Study of the Korean Speech Act of Apology] (2002) (unpublished M.A. dissertation, Seoul National University) (on file with author). 13. Of interest in the Chinese understanding of the apology is the widely reported inci- dent on April 1, 2001, involving a U.S. military reconnaissance aircraft and a Chinese fighter. The two aircraft collided over the Hainan Sea; the Chinese aircraft was presumed to have crashed with its pilot dead; the U.S. aircraft was forced to enter Chinese airspace and land in China. China demanded an apology from the United States. U.S. diplomats expressed regret but did not apologize. The incident led to some commentary on the Chinese understanding of the apology. E.g., Peter Hays Gries & Kaiping Peng, Culture Clash? Apologies East and West, 11 J. CONTEMP. CHINA 173, 173 (2002) (arguing that "both cultural differences and cultural commonalities played a significant role" in apology diplomacy over the aircraft incident); O'Hara & Yam,
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