Costco very unhappy campers

#5 jkitchstk: “So if I were to complain that the Seoul city ordinance that says there is NO-Smoking on a Seoul Plaza or NO-Drinking at a Seoul park and through my complaint the city ordinance was legally suspended until further notice…then ONLY I would be able to smoke and drink at those places in Seoul, everybody else couldn’t because they didn’t complain?”

I was going to argue by posting a similar rights analogy. I think what we’re arguing is an equal protections clause, which I believe Korea purports to have some version.

madar: “I’m confused by this. Under westren legal precedent, when a court strikes down a law, it is gone, as if it did not exist, until either a higher court reverses the ruling or a new law correcting the courts objections is created.”

I don’t think the court struck down the law; I think they issued an injunction.

Regardless, I still don’t understand the reasoning that equal protections don’t apply or for that matter the reason that Costco simply doesn’t file its own suit in court. After all, a precedent has been set, and I think Costco could argue their case in one sentence.

Does Korea have the equivalent of an equal protections clause or dosen’t it?

Korea Herald, Daniel Fiedler: Costco and comparative law:

…South Korean lawyers and law students are steeped in a civil law tradition imported from Japan that finds its roots in 19th century German and French law; both of which have as their foundation the law of ancient Rome.

In this civil law system legislative enactments reign supreme and courts are generally prohibited from applying equity-based concepts that could introduce uncertainty into the law. Further the decisions of ordinary courts have no particular force beyond the parties to the controversy.

…Thus South Korean judges methodically follow the law as set forth in legislation enacted by the National Assembly and use deductive reasoning to apply this law to each specific controversy.

These courts are generally not empowered to consider equitable concepts and they do not engage in analogous or inductive reasoning based on prior judicial decisions. Most important, they do not expect their decisions to be cited as authoritative statements of law by other courts or to be relied on by individuals or entities not involved in the litigation.

Thus when the Seoul city government argues that an administrative court decision invalidating a government regulation does not apply to a non-litigant such as Costco it is merely following that ancient civil law tradition. For the law students, lawyers, judges and even average citizens of South Korea the action of the government is self-evident. However it has become obvious that the Seoul government officials, as well as many South Korean commentators, are struggling to understand why Costco has been violating the regulation for the last few weeks without any discernable remorse or shame.

The answer to this quandary is the common law legal system of the United States to which the managers and directors of Costco are accustomed. In the common law system, court-made law is as extensive in scope as legislative enactments and often legislative enactments merely reflect the rules of law developed in prior court decisions. These courts have the power to consider concepts of equity and often use these concepts to modify or expand on what might otherwise be harsh legislative rules. Common law courts have the power to strike down legislation as unconstitutional and to reject regulations as invalid.

Most significantly, when a court strikes down legislation or declares a regulation invalid that decision applies equally to all similarly situated individuals whether or not they were litigants in the original court action. Thus for the managers and directors of Costco, coming as they do from the common law jurisdiction of the United States, the idea that a government regulation deemed invalid by a court would still be applied to similarly situated non-litigants is illogical and highly offensive to their concept of equal treatment under the law.

Thus Costco has engaged in what it views as legally justified action in disregarding a regulation already deemed invalid by a competent court. Meanwhile the Seoul city government has similarly engaged in what it views as a legally justified action in attempting to enforce the regulation.

…when the Seoul city government found the remedies set forth in the regulation to be insufficient to deter Costco’s actions, its response of sending in inspectors as a retaliatory action only fed the narrative of South Korea as anti-foreigner. At a time when South Korea is trying to polish its international image, the last thing it needs is another situation like the Lone Star case where the foreign consensus again develops that the country is unfriendly to foreign business and investment.