Criminal Defenses under Korean Law: An Overview
In Korea, it is always the prosecution who bears the burden of proof. The prosecution has to not only prove each and every element of a crime but also the absence of any criminal defense. For instance, it’s up to the prosecution to prove: the defendant was the culprit + he/she did not act in self-defense. The role of the defense is to cast reasonable doubt. Below are some criminal defenses currently available under (South) Korean law. Sometimes these constitute a full defense (i.e., an acquittal); other times they constitute only a partial defense (i.e., reduced punishment).
In Korea, self-defense is interpreted very narrowly. Bottom line: Whether it was really necessary under those particular circumstances to have used that much force in order to subdue or repel the aggressor.
This applies to situations where it was necessary to commit a crime (e.g., drunk driving) in order to avoid an impending danger. For example, hurriedly driving (while intoxicated) your injured wife to the ER.
When you know legal recourse will (later) be unavailable or ineffective as a means to preserve your rights. For example, following and apprehending a customer who has failed to pay for services rendered.
IV. Consent of Victim
Situations where the “victim” has essentially okayed the crime. For example, performing surgery on a patient. Or, physical contact while performing a play, playing sports… Note: Not all crimes can be okayed.
V. Justifiable Act
A “catch-all defense” in case none of the above apply. Applies to situations where a specific law/statute or business practice has okayed the commission of that crime. Or, no social norm has been violated.
VI. Mistake of Fact
Misunderstanding a situation which leads to the commission of a crime. Misunderstanding must have been honest and reasonable. Does not apply to “transferred intent” (e.g., mistakenly killing A instead of B).
VII. Mistake of Law
Misinterpreting a specific law which leads to the commission of a crime. For example, misinterpretation directly caused by an erroneous official reply from a government employee. Does not apply to mere ignorance.
VIII. Insanity / Intoxication
Insanity in Korea: M’Naghten Rule + Irresistible Impulse Test + Durham Rule. Intoxication cannot have been caused voluntarily if the outcome was foreseeable. Also, it’s no longer really a valid defense for sex crimes.
IX. Duress / Impracticability
Duress means when one is forced to commit a crime for fear of his/her own life or physical harm. This includes threats to harm one’s relatives. Impracticability is determined by the “average person standard.”
X. Criminal Minor / Deaf-Mutes
The age of criminal responsibility in Korea is 14 (international age). Some people think it should be lowered. When a crime is perpetrated by a deaf or mute person, he/she can receive reduced punishment.
XI. Other Defenses…
Crime-specific defenses such as “solely for the public interest” with regards to defamation (via a true statement). Or, the crime of “Harboring a Criminal” when perpetrated by a relative or a residing family member.
Screenshot at the very top: Foggy Nelson in Netflix’s Daredevil.
Thanks for reading!
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