Korean Law Demystified!

Korean Law on Murder

0004

Earlier this month, a man was found stabbed to death at a noraebang near Konkuk University (Subway) Station, an area regarded as one of Seoul’s top nightlife destinations. All this instantly became public knowledge as crime scene photos (taken by passers-by) quickly spread online. With the killer still at large, the incident has been dubbed the “Konkuk University Station murder case” (건대입구 살인사건).

So, what exactly constitutes murder in Korea?

I. The Crime of “Murder” (살인)

According to Article 250(1) of the Criminal Act (형법), “Murder” is a crime for which one could even face the death penalty or life imprisonment. The minimum period of imprisonment is five years. When a definite term of imprisonment is imposed, suspension of qualifications for not more than ten years may be concurrently imposed (Article 256). An attempt to commit this crime is also punishable (Article 254). Preparations and conspiracies with intent to commit this crime are also punishable (Article 255). In order to qualify as “Murder”:

1) A person has to kill another person

2) With the intent to commit “Murder.”

The intent to commit “Murder” includes intent in the form of dolus eventualis (미필적 고의). Dolus eventualis refers to a form of intent where the perpetrator objectively foresees the possibility of his or her act causing death and yet persists regardless of the consequences. (i.e., He/she was essentially “okay” with it = “I can live with that!”) This can be inferred from the perpetrator’s conduct in the light of the surrounding circumstances. For instance, stabbing a person in a fatal area (e.g., the heart, the neck) will satisfy this requirement regardless of whether the stabbing was meant to kill. The crime perpetrated in the “Itaewon murder case” (이태원 살인사건) is a classic example. (Watch a video clip of the movie adaptation below.)

“Murder” is a crime which encompasses the crimes of 1st/2nd-degree murder and voluntary manslaughter under American law. Factors such as premeditation or “heat of passion” are reflected in sentencing. Korea does not have a “felony murder rule” per se. Instead, each type of “felony murder” constitutes a distinct crime. One such example is the crime of “Death Resulting from Rape” (강간치사) under Article 301-2 of the Criminal Act.

The legal threshold for “Attempted Murder” (살인미수) is met as soon as the perpetrator engages in any act – with intent to murder – that is capable of putting another person’s life in danger (e.g., a gun is aimed, a knife is brandished, a poisoned orange juice is handed). The key here is proving the perpetrator engaged in such acts with intent to murder (as opposed to threaten, for instance). For attempted crimes, the punishment may be mitigated.

The death penalty is still rendered in Korea, although none have been carried out since 1997. Hanging is (or was) the primary method of execution. Death sentences are now reserved for especially heinous murders. Serial killers currently on death row include Kang Ho-sun and Yoo Young-chul. Meanwhile, the Korean movie Memories of Murder (2003) was based on a true story about a series of murders that occurred in Hwaseong City. (Watch the trailer below.)

Interestingly, this crime can be perpetrated by “omission” or “failure to act.” A man was once convicted of “Murder” after he deliberately took his little nephew to a dangerous embankment – with intent to murder – where he then watched the boy slip, fall, and drown to death (Supreme Court Decision of February 11, 1992, 91Do2951). As the “creator of danger,” the man was obligated to come to the rescue of his drowning nephew. By doing nothing, he essentially drowned the boy to death.

People have been found guilty of “Murder” even in cases where the victim is presumed dead because the body was never actually recovered (e.g., was ground up or incinerated). Circumstantial evidence alone may sufficiently convict a person if his or her guilt is proven “beyond a reasonable doubt.” For instance, the defendant may have had the wherewithal and motive (e.g., going through financial hardship + the beneficiary of life insurance money), whereas the likelihood of any other theory (e.g., suicide by setting oneself on fire) is almost nil.

The Octopus Murder Case (낙지 살인사건)

Last Thursday, the defendant in the “octopus murder case” was acquitted of “Murder” by the Supreme Court of Korea (Supreme Court Decision of September 12, 2013, 2013Do4381). The Court affirmed the appellate court decision which had found him not guilty for the murder of his girlfriend. (Originally, the trial court had found him guilty and sentenced him to life in prison.) His girlfriend was initially believed to have accidentally suffocated while eating a live octopus in April 2010. The man was first suspected of murder when the victim’s father discovered her daughter had signed up for a life insurance policy one week before her death, with her boyfriend as the beneficiary. But by then, her body had already been cremated.

In this case, the Court affirmed the acquittal of “Murder” (and “Fraud” (사기) too, btw) because the circumstantial evidence alone fell short of proving “beyond a reasonable doubt” that the victim had been suffocated by the defendant. In other words, the likelihood of another theory (i.e., accidental suffocation) could not be totally ruled out. The Court reasoned that: “When the prosecution, who bears the burden of proof in criminal cases, fails to prove guilt ‘beyond a reasonable doubt,’ the defendant must be acquitted in accordance with the principle of in dubio pro reo.” The man was, however, found guilty of “Larceny” (절도), and he was ultimately sentenced to eighteen months in prison.

The decision instantly caused an uproar among Koreans, with many believing the man got away with murder, literally. According to reports, the three mysterious circumstances surrounding this case were: 1) the fact that the change in the beneficiary of the 200 million won life insurance took effect exactly seven days before the victim’s death, 2) the couple decided to eat live octopus in a motel room while they were drunk in the middle of the night, (The victim had very bad teeth, and she hardly ever ate “tough-to-chew” foods) and 3) the man was later found to have been living a double life. (i.e., He was found to have been dating three women simultaneously + He was seen drinking merrily just two weeks after the victim’s death + He claimed to have been the son of a chaebol even though he was barely making ends meet, living in a small rent apartment.)

II. The Crime of “Killing Ascendant” (존속살해)

Incidentally, murdering an “ascendant” (존속) is punished more severely in Korea. An “ascendant” refers to a “lineal ascendant” of either spouse (if married). A “lineal ascendant” is someone who is in direct line of ascent such as one’s parents or grandparents.

According to Article 250(2) of the Criminal Act, “Killing Ascendant” is a crime for which one could even face the death penalty or life imprisonment. The minimum period of imprisonment is seven years. When a definite term of imprisonment is imposed, suspension of qualifications for not more than ten years may be concurrently imposed (Article 256). An attempt to commit this crime is also punishable (Article 254). Preparations and conspiracies with intent to commit this crime are also punishable (Article 255).

While this crime, no doubt, reflects the Confucian influence (e.g., filial piety) on contemporary Korean law, some feel Article 250(2) is plainly unconstitutional. They argue that the distinction between “Murder” and “Killing Ascendant” is an arbitrary one, and it violates the principle of “equality before the law.” A murder is (only) a murder, so to speak. In 1995, a similar law was repealed in neighboring Japan for precisely these reasons.

Nevertheless, the Constitutional Court of Korea recently reaffirmed the constitutionality of “Killing Ascendant” by a seven-to-two vote. At least six votes of “unconstitutional” or “incompatible with the constitution” are needed to repeal or amend a law. Around 50 to 60 cases involving “Killing Ascendant” continue to occur every year.

%d bloggers like this: