Internalization and Globalization Of Legal Education

Transcription

1 제3회 국제학술대회 315 Internalization and Globalization Of Legal Education Choi, Min Yong * 1 I. Prologue 1) This is an era of internationalization and globalization. In this age, every nation participates in a single global market. Some countries have superior conditions from the beginning but others do not. As human beings, we all have some negative conditions we have to accept whether we want to or not. Such as our ethnicity or gender. People who are wise and future oriented will think about what they can do with their limitations rather than dwell on and complain about how those conditions negatively affect their lives. So will a country. 2) The internationalization and globalization and opening of the legal market are no longer the matters of choice. It is like a big wave beyond our control. We see the wave but our minds are unprepared. There is a voice in our hearts asking if it is possible to avoid or slow down that wave. However, the wave does not listen to that voice. Thus, there is no choice other than to prepare for and confront that wave. And if we choose to confront it, we have to do it well. * professor at college of law, Kyung Pook National University, attorney at law in Korea

2 316 法 學 論 考 第 24 輯 (2006.6) II. Globalization and Law 1) Under the theory of a global world, the hundreds of thousands of nations and ethnicities with their varied traditions, practices and laws become members of the global village. That is globalization. It is a big society and a society needs rules to maintain control. What rules should control society? Many agree that the rule of law must control society. The phenomena that occur in the global village are varied and the parties and issues in legal actions are multiple 1. Therefore, it is impossible to find a specific rule to apply and be able to give predictability. Nor is it appropriate. In addition, the rules that must be applied to such phenomena should be public and private at the same time. On one side there is Common law and on the other side there is continental law. Both international and local at a time. Accordingly, the existing way of thinking about the law with its divisions is no longer persuasive in this global age. 2) Although the global village is a place of competition, more often than not the members of that village stand together outside their boundaries to solve those problems common to all human beings. They do so by necessity. We can take 9/11 for an instance. Ever since, protection against terrorism has been a common issue in the world. One would like to think the events of September 11, 2001 would have added keen interest in the cross cultural subject. The complexity of 9/1l must include a discussion 1. Sang Hyun Song, pp9 10, The trend of a law school from a world wide perspective and law school, Jurisprudence, SNU, Vol 45, II.

3 제3회 국제학술대회 317 of how profound cultural differences could explain the nature and depth of the conflict between the United States and followers of Osama bin Laden, two sides that do not share the same ways of thinking, feeling, and behaving 2. III. Fear for the globalization and reformation of education 1) Globalization means that every sector in human life becomes borderless and the world becomes a single unit for that sector. The legal market and the demand and supply for legal services are not exempt. 3 The quality of such legal services is determined by the ability of their law experts. And by the education of those experts. 2) By the way, globalization does not only promise a utopia where human beings love and help one another and share valuable things. Rather, together with the wave of neo liberalism, which pursues efficiency and the maximization of benefit, it makes everywhere in the world a place of competition. This is why we fear the wave and try to slow it down. 3) Korea has managed to delay the opening of its legal market for a number of years, unlike the other OECD countries 4. During 2. Ilhyung Lee, p410, The Cross cultural Negotiations Course in the Law School Curriculum, Law and Globalization, BK21Law Program, SNU(2005) 3. The negotiation for opening legal market is treated as a trade of service under WTO, refer to an article 861 of the United Nations Provisional Central Product Classification prescribes 4. Korea has submitted WTO first initial offer which allows establishment of a local representative office of foreign law firms but does not allow the employment of or

4 318 法 學 論 考 第 24 輯 (2006.6) that time, we have discussed a lot how the opening of the legal market would affect us, how we should prepare for it and how we have to reform our existing education system. 4) Finally, it is likely that we will reach the consensus that we need to introduce a law school system to replace our current education system. However, whether a system of law schools will bring about a successful reformation is still up in the air. It is not clear whether it will be able to avoid the many problems of the existing legal system. Neither is it clear whether it will meet the new demands of this global society. But at this point one thing we can be sure of is that if we try it and manage it well, we can expect a positive outcome. This is because the existing system has problems and a well managed law school system could address them. I believe it deserves our consideration at least. 5) I have described globalization as a big and scary wave. This feeling is no less strong to persons who are in the law profession. The more complicated the world is and the more new problems that occur, the more demanding the requests to law professionals become. They can not rest or rely on past knowledge and experiences. They need to recognize the issues and have insight into reality with a sharp, keen and precise sense. They have to gather and absorb knowledge and information, and enhance their ability. 6) Here, I just want to present a few humble thoughts on what partnership with domestic lawyers. Refer to

5 제3회 국제학술대회 319 I think is essential for a successful reformation of the legal education system. I believe it is inappropriate for me to specify all the details of the proposed law school system and the discussions surrounding the reformation of the legal education system including the courses to be taught, the number of law school students, the number of people who will pass the bar examination etc. There are many experts discussing these issues and there already has been much discussion and study thereon so that certain conclusions have already been drawn. IV. Legal Education for Global age 1. Foreign Language Education 1) Communication is basic in international trade. Knowledge of foreign languages is essential for communication and English is important as a method of communication. Recently, I read an interesting article in the newspaper. It is a well known fact that most Korean students have been taught and studied English for more than 10 years but their English speaking ability is poor on average. This is not news. According to that article, this outcome is heavily due to students obsession with being model students. Korean students have a kind of inferiority complex to native English speakers and they fear making mistakes. This prevents them from speaking freely despite the fact that they already have the ability to do so. On the other hand, students studying Chinese, which is more difficult than English, converse easily with native Chinese speakers because Korean students do not feel inferior to

6 320 法 學 論 考 第 24 輯 (2006.6) native Chinese speakers. So they get used to speaking Chinese comparatively with ease. Reading this article, I thought about the saying, Those things that are most Korean are the most international. To be international, pride for Korean things is essential. To enhance the speaking ability of students, it is needless to say that we have to put more importance on practicing speaking and listening to English. But in addition to this, we have to teach the students to be proud to be Korean and feel pride for Korean culture. In a way, the insistency that even in the international and global era, the nationalism will exist with the changed form so called an open nationalism which accepts the new factors is persuasive 5. This point must be considered as a part of English education. 2) To most Korean people, legal terminology is unfamiliar and difficult. This is the same in the U.S and for English speakers. Although English is the mother tongue of law students in the U.S., they also go through the difficulty of understanding and learning law terminology, syntax, expression and writing styles. I had a chance to attend a UCLA court interpretation course in the U.S. and experienced this difficulty in that course. Past law professionals sometimes intentionally use words not frequently used in daily life for instance, the Latin equivalent to keep some distance from ordinary people. After frequent repetition and practice, the use of such words has become a habit. Fortunately, it is reported that there is a current movement to simplify legal 5. Ui Hyang Lee, pp , A study on Nationalism in the international Era, Study on the international issues, vol N.23(1999)

7 제3회 국제학술대회 321 writing so that ordinary people can understand their meaning without difficulty. I believe this is desirable but some uniqueness in law terminology will remain. Therefore, the special English classes for law students are still needed. 3) An English education is necessary for understanding the systems of the U.S. and England etc. and trading with them as well. It is also important for making our system and culture known to them. I believe there are so many reasonable and great system and culture in Korea. But without letting them know, how can those get reputation? If there is no exact and appropriate interpretation of Korean into English, what is its use for no matter what there are so many foreign people who have curiosity to the Korean things? I am buying the insistency that the language difficulty has worked as an obstacle to Japan s take off in the international round 6. Looking at current situation in Korea, we have to realize we need preparing good interpretation materials for books, course cases and thesis that can meet the needs of the foreigners curiosity. 2. Relief from the pressure of the examination 1) Up until now, so many people are still sticking to the study for passing the bar examination setting aside their normal life in society. This is not only personal unhappiness but also national loss. Further we can not really tell that even the persons who 6. Seong Mok Hong, p 460, Usage of English in legal education and enhancement of competitive power, Session IV, International perspective in legal education, Seminar, Internalization of education, The Korea law professors association, Inc.

8 322 法 學 論 考 第 24 輯 (2006.6) have passed the examination could get the right legal mind during the time that they studied for the bar examination. They had spent their time in memory oriented studying only for test 7. In a way that examination was designed to drop the students off and get only strictly limited number of students. 2) However, unfortunately, the problems occurring in reality is not same or similar to those in test. Nor do they repeat. The ability and capacity to solve the matters that they have never treated before can be fostered only by legal mind. Legal mind makes the students understand the problems and facts and find the way to solve them. Students can get this only when the students are relived from the excessive pressure to pass the examination. Instead getting the right legal mind, if they spend their valuable time in memorizing simple and technical facts only for test, it is great and great loss. In both law school examination and bar examination, we must keep this in mind and consider this point. 3. Dual Degree system and Joint Degree system 1) In this Global age where the legal professionals are asked to be the Jack of all trades, Dual Degree and Joint Degree are attractive systems. Dual Degree is the system under which two degrees will be granted to the students who accrue credits from two different schools and meet the prerequisites for graduation from both schools. Joint Degree is the system where the students who 7. Chang Rok Kim, pp 6 8, Korean National Bar Examination., International Conference in Taiwan(Oct., 2005)

9 제3회 국제학술대회 323 finish the courses established by two schools will get one degree issued mutually by both schools. These systems are designed to prepare the domestic schools to gain an international competitive edge to compete with foreign schools which will be allowed to enter the Korean educational field under the WTO system. Dual Degree system has been introduced by several domestic universities including Kyoung Hee University. 8 However, this program is actually available for the English literature and the political science only and not yet for the law program. It seems due to the language difficulty and exclusivity of the law. 2) As for the Joint Degree, the relevant rules and regulations for the program have been set recently in Korea. However, more than a few universities in the U.S have already been offering the Joint Degree program with MBA and JD for many years. I have worked as a corporate finance lawyer and have had many experiences working with the MBA graduates. Security transactions frequently involve thorough evaluations of securities and need the services those with the MBA degree. The perspectives of the MBA graduates and those of the lawyers are quite different, but they have to rely on each other. Furthermore, the corporate clients are not satisfied with the conservative legal opinion given by the lawyers and often request a deal structuring that reflect the economic, as well as the legal effects. Therefore, if someone is an expert in both law and in accounting, he or she can provide the clients with a higher quality and satisfactory service. 8. refer to www. Kaie.org/gb/data/workshop

10 324 法 學 論 考 第 24 輯 (2006.6) 3) The accounting service has been internationalized earlier than the legal field. It is well known that combining the accounting service with the law service is creating a significant synergy effect and offering a competitive advantage. For example, in France, among ten law firms six firms belong to the accounting firms and three fourths of the lawyers belong to the accounting firms. 9 Likewise, it is necessary to develop Joint Degree system linking the MBA and the JD degree. 4. Professor 1) Law school requires some conditions for materials and persons. Many factors, including but not limited to buildings, information networking, the curriculum and course materials, need new investments and funding. All are important for a successful operation of a law school. However, among the requirements, the role of the professor is by far the most important. It is the same context in which the quality of the legal service depends on the quality of the lawyer. The professors of law schools have major influence on the students during the years of training. This influence does not end at graduation. Even when the students are practicing, the professors teaching still affects their way of thinking, their way to approach and solve the problems. 9. Hyung Suk Kim, p 277, The cases of opening legal market by the countries and implication. Session III, Reformation of legal service market and system,, Seminar, Internalization of education, The Korea professors association, Inc.

11 제3회 국제학술대회 325 2) Likewise the role of a professor in the whole context of law school is of the essence. Therefore, the government has to invest to fill the need. It has to devise a long term plan for cultivating qualified professors. The professors have to gain the qualifications that fit the new era. As a global world requires the legal experts to be a Jack of all trades, so does the law school require of its professors. If the law school professors are not qualified, how can they educate the students to be experts prepared for the new era? The professor should develop effective teaching methods to promote the ability to solve problems in the real world, to master the necessary foreign language, and to deliver an international perspective to the students. 3) While studying in the U.S., I once had a lunch with a friend who graduated from an MBA school, and we talked about the work we hoped to do in the future. I mentioned that I wanted to teach someday. My friend told me that she is not interested in teaching because teaching requires giving away a certain part of the teacher. At that time, I thought to myself, is there any other job that does not do so? Now, I think it means that the teacher does not expect any consideration in return. If a teacher has a good reputation, it is certain that the love for the students and the academic endeavor that had brought the decision to teach, and not his or her ambition. V. Epilogue

12 326 法 學 論 考 第 24 輯 (2006.6) 1) The Global village is a really demanding place, especially to the legal professionals. The demands do not end at the level of professional knowledge. It stretches to one s ability to handle and solve conflicting matters, foreign language skills, the legal philosophy, a broad cultural awareness and a mind for public service. In a way, the legal professionals are the ones who have to ride the waves, like surfers. Is it unfair to demand so much from the lawyers? No, it is not because the lawyers are professionals and the professionals always have many responsibilities that accompany the title. 2) Likewise, a heavy burden is put on the shoulders of the law school. If it is well managed, the law school can pave the way and play a key role in extending our culture into the global village. Its task is not only accepting the foreign concepts but also transferring the Korean law and its traditions to the world. If we can rise up to the challenges and ride on top of the giant tidal wave, we can go very far and can look forward to a bright future.

13 제3회 국제학술대회 327 < 초 록 > 법학교육의 국제화 최 민 용 * 10 자유주의의 물결과 함께 국제화는 지구촌을 철처하게 수요와 공급의 법 칙이적용되는 하나의 시장이 되게 하였고, 우리나라에 있어 법률시장의 국 제화나 개방의 문제는 더 이상 선택의 문제가 아니라 당면한 현실이 되었 다. 그러므로, 법률가집단은 국제화에 부응하는 서비스를 제공할 수 있는 경쟁력있는 집단으로 거듭나야만 한다. 또한, 법학교육은 그러한 거듭남의 원천으로서 기능할 수 있도록 혁신되어야 한다. 본고에서는 그와 같은 관 점에서 법학교육의 개혁이 나아갈 몇 가지 방향을 고찰해 보았다. 국제화 의 관점에서 첫째, 영어교육이 향상되어야 한다. 말하기와 듣기에 보다 더 비중을 두어 교육하여야 할 뿐만 아니라 한국적인 것에 대한 그리고 한국 인으로서의 자부심을 가르쳐야 한다. 일반적인 영어교육과 함께 법률영어 교육이 개발되어야 한다. 둘째, 학생들은 지나친 수험부담에서 벗어나 현실 적 문제를 해결할 수 있도록 Legal Mind를 습득할 수 있어야 한다. 셋째, 법률가에게 팔방미인이 되기를 요구하는 국제화 시대에복수학위제, 공동학 위제를 활성화하여야 한다. 특히 법학과 경영학의 공동학위제를 적극 검토 할필요가 있다. 마지막으로, 교수들은 역량있는 학생들을 길러낼 수 있도록 끊임없는 자기개발로 스스로를 연마하여야 한다. 법률가들은 무거운 책임 을 갖는 이 사회의 전문가들로서 국제화의 거친 파도를 국가적 도약의 기 회로 선회하여야 한다. * 경북대학교 법과대학 법학부 교수

14 328 法 學 論 考 第 24 輯 (2006.6)