1. Purpose of the study

The Alternative Dispute Resolution (ADR) system, like criminal reconciliation is not an entirely new method of resolving problems. It was a normal and universal system for handling disputes before a state that represented victims appeared. In many societies including the US, Canada, Australia, New Zealand and Europe, Restorative Justice has been suggested as an alternative to the existing criminal justice system. The criminal reconciliation system in the US and England have showed great development in the past 30 years and it is important to understand that these systems are derived from a customary or conventional ADR system.
The purpose of this study is to discover the conventional ADR system in Korea and find a way to adopt it into the criminal reconciliation program. Unfortunately, there was little data for this study and no prior research. However, there is a lot of data about the conventional ADR systems in China and Japan, that share culture commonalities with Korea. Consequently, in this study I tried to determine the conventional ADR system in Korea and how it can be adopted into the crime reconciliation system by comparing Korea, China and Japan due to their cultural similarities.

2. Comparing conventional ADR systems in the three country

a. Background and necessity of the system.

Let’s first look into the latter part of the Joseon Dynasty. In the late Joseon the state tightly controlled punishment power as such the role of the state in resolving civil and criminal litigation disputes grew. Civil, administrative petitions, reports, etc. were added to the work of the state. So, the need for alternative dispute resolution was sufficient. Moreover, minor incidents would have been presumed to recommend. The same was true in China and Japan. At the time many people were not afraid to sue, despite the general principle of the government to suppress litigation.
However, the proper treatment of a suit would have been difficult for public officials to deal with and therefore these officials would have wanted these cases to be solved with by a method of reconciliation, not a legal suit. In addition, a negative perception of lawsuits in China, Japan and Korea is thought to have contributed to the prence of alternative dispute resolution methods. Korea as a Confucian society has negative view of litigation. This perspective was the same in Japan.
The cases involving the daily lives of people was solved through agreement between the parties, not through involvement of the state. We can assume that the Korean, Chinese and Japanese societies that had common Confucian culture were all reluctant to resolve the conflict with government intervention, and seeked consensus and coordination between the parties.

b. The features and Characteristics of the system

In the context of the above understanding of Korea, China, Japan, the nature of the traditional alternative dispute resolution methods and features are considered to have the following characteristics.
From the historical materials, It is presumed that the system of mediating conflicts and disputes was not at the national level. The procedure and nature of the system is relatively detailed in Japan and China and they seem to have similar nature.
In terms of the alternative methods of dispute resolution, Korea, China, Japan all feature a common mediator from the community to bring the parties to deal with the conflict. The mediator could be an official, but most of the case, it was the elder or community leader from the town.
A common feature of the systems is that elders in the three countries who were considered as virtuous were allowed to be a mediator. This is because this person, who understood town’s circumstances could better play the role of mediator better than an officials who was replaced frequently.

c. Problems and realities of the system

The problems and realities of the dispute resolution systems in the three countries are as follows. First, Korea’s reconciliation(私和) system was not institutionalized in the country, so it is useless to investigate the legislature about the system. However, historical materials state that this method was publicly used in many criminal cases.
In order to overcome negative side effects of reconciliation, the application of this system to cases of murder was banned. If someone broke this rule and mediated such a case, he or she was punished. Despite this, according to other historical data about murder, the reconciliation system was also still often and publicly used. In this context, it can be assumed that reconciliation was done illegally for some crimes.
In the case of Japan, in addition to the side effects, there were some other negative effects like unequal position of the parties or forced reconciliation. They were also showed in China’s system, in an increase in cases where the moderator of the dispute didn’t take a neutral position.
In this context, it is presumed that with governmental pressure to reduce litigation and a social atmosphere in which people didn’t like litigation, but the moderator didn’t take neutral position that reconciliation was forced. In China, due to these abuses of the moderator’s privilege, it was limited and government made people monitor the actions of the moderator, so that the side effects could be solved successfully. I believe the systems of Korea and Japan were also similarly changed.
This is a comparison table of the three countries’ alternative dispute resolution system.