An Essential Reference for Your Everyday Legal Questions in Korea!

Kidnapping of Minor

The Korean movie Blood and Ties (공범) premiered this week. The literal translation of the Korean title is: The Accomplice. At any rate, I’d like to take this opportunity to explain the crime of “Kidnapping of Minor” (미성년자의 약취, 유인).

I will also try to explain “statutes of limitations” and “accomplice liability” under Korean criminal law. I won’t reveal anything specific about the movie itself.

The Crime of “Kidnapping of Minor”

Misun, aged 15, has become obsessed with the teachings of a religious cult leader. Misun is so deeply moved that she decides to leave home and join the cult. The cult leader takes her in, allowing her to live with the other members. As per instructions, Misun starts peddling gum on the street. What crime, if any, has the cult leader committed?

Elements of “Kidnapping of Minor”

According to Article 287 of the Criminal Act (형법), the punishment for “Kidnapping of Minor” is imprisonment for not more than ten years. The punishment may be mitigated if the victim is released to a safe place (Article 295-2). An attempt to commit this crime is also punishable (Article 294). In order to qualify as “Kidnapping of Minor”:

1) A person has to seize or lure a minor

2) And thereby place him or her under one’s forcible domination, or the forcible domination of a third party

3) With the intent to commit “Kidnapping of Minor.”

With regard to this crime, Korean courts may claim criminal jurisdiction over an accused person regardless of where the crime occurred. The nationality of the victim/perpetrator is also immaterial. This is called universal jurisdiction.

This crime requires that the perpetrator either “seize” or “lure” the victim. “Seize” refers to any acts of violence or intimidation capable of placing a minor under one’s forcible domination or the forcible domination of a third party. This includes the use of sleeping or anesthetic agents. “Lure,” on the other hand, refers to any acts of deception or enticement capable of placing a minor under one’s forcible domination or the forcible domination of a third party. “Enticement” includes even true statements.

The victim of this crime must be a minor under Korean law. Under the Korean Civil Act (민법), a person attains the age of majority when he or she turns nineteen.

According to the Act on the Aggravated Punishment of Specific Crimes (특정범죄가중처벌등에관한법률), the perpetrator of this crime could face more severe punishment under certain circumstances. These circumstances include kidnapping for ransom or with intent to kill. The perpetrator is punished most severely when he or she ends up killing the victim. In such case, the punishment is death or life imprisonment.

This crime can be perpetrated even by a parent or legal guardian. Nevertheless, “peacefully” taking away one’s child (from and against the wish of the other parent) is unlikely to be a crime (Supreme Court Decision of June 20, 2013, 2010Do14328).

The Cult Leader’s Crime

The above fact pattern is based on an actual Supreme Court of Korea case (Supreme Court Decision of April 27, 1982, 82Do186) which found the defendant guilty of “Kidnapping of Minor.” The key question was whether the victim was “kidnapped” when she had left home on her own volition.

The Court ruled the victim was, in fact, kidnapped. Through his teachings, the cult leader essentially “lured” the victim into joining the cult. Even if made voluntarily, the victim’s decision to leave the protective care of her parents was based on “defective intent.” Furthermore, the cult leader placed the victim under his domination by allowing her to live with the cult.

The cult leader has committed the crime of “Kidnapping of Minor.”

Criminal Statutes of Limitations (공소시효)

According to Article 249 of the Criminal Procedure Act (형사소송법), the longest possible term of the most severe punishment for any given crime determines its statute of limitations:

1) The death penalty : 25 years

2) Life imprisonment with/without labor : 15 years

3) Imprisonment with/without labor for ten years or more : 10 years

4) Imprisonment with/without labor for less than ten years : 7 years

5) Imprisonment with/without labor for less than five years, or a suspension of qualifications for ten years or more, or a fine : 5 years

6) A suspension of qualifications for five years or more : 3 years

7) A suspension of qualifications for less than five years, or disciplinary lockup, or a minor fee, or confiscation : 1 year

Moreover, if a final judgment is not rendered within twenty-five years of the date of indictment, the statute of limitations will deemed to have expired.

Unless the prosecution files an indictment within the statute of limitations, a suspect/defendant cannot be punished. The time begins to run with the completion of a crime. For certain crimes, however, the statute of limitations has been lifted altogether (e.g., crimes of “sexual violence” perpetrated against minors).

Accomplice Criminal Liability (공범의 형사책임)

Crimes can be perpetrated by more than one individual. The Criminal Act outlines four types of “accomplices” (광의의 공범):

1) Co-principal (공동정범) : The perpetrators each play an essential role in the commission of a crime. The role need not constitute an element of a crime (e.g., keeping watch, driving a getaway car, masterminding a crime). Each co-principal will be punished as if the crime was perpetrated by a single person. The individuals responsible for the Seongsu Bridge collapse in 1994 were convicted as co-principals.

2) Principal Through Innocent Human Agent (간접정범) : A “puppeteer” manipulates a “puppet” into committing a crime. For instance, an informant who deliberately feeds false information (with intent to defame a third party) to an unsuspecting reporter could be punished for “Defamation Through Printed Materials” (출판물등에 의한 명예훼손). If the story harms the reputation that third party, the informant (i.e., the puppeteer) will be punished. The reporter (i.e., the puppet), on the other hand, will not be punished.

3) Instigator (교사범) : This refers to someone who persuades another person - who otherwise would not have committed a crime - into doing so. The perpetrator must not originally have possessed the intent to commit such a crime. An instigator receives the same punishment as the perpetrator.

4) Accessory (종범) : This refers to someone who aids and abets (i.e., facilitates) the commission of another person’s crime. Unlike “instigation,” the perpetrator must already possess the intent to commit a crime. An accessory receives mitigated punishment.

Sometimes, the term “accomplice” (협의의 공범) refers to only the lower two: “Instigators” or “Accessories.” “Co-principals” or “Principals Through Innocent Human Agent” are not “true” accomplices in that both are principals of a crime. In other words, an “accomplice” refers to someone who falls short of playing a “leading/direct role” in the commission of a crime.

What type of “accomplice” is the movie referring to?

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