Korean Law Demystified!

Example of Criminal Negligence (under Korean Law)

I. Intro

“Criminal negligence” is when you face criminal liability for an act not based on intent. In short, crimes based on clumsiness or lack of due care. The major difference between crimes of negligence vs. intent crimes is that only the latter punishes “attempts.” In other words, criminal negligence is punishable only when actual harm was inflicted/done. To have harmed is to have committed a crime; to have nearly harmed is not. Even when the two conducts were identically negligent! You could say there’s an element of luck involved here. In law school, I had a difficult time accepting this notion. (Let’s say we can prove someone was grossly negligent, yet miraculously no harm was done. How, as a society, should we evaluate such conduct?)

II. Recent Example of Criminal Negligence (in Korea)

In Korea, the Supreme Court recently affirmed an appellate court decision which had found 11 constructors and contractors, etc. guilty of criminal negligence. Some received actual prison sentences (ranging from 10 mos to 2 yrs), while some received criminal fines (ranging from 2 to 10 mil won). Some both.

Back in October 2014, 16 people were killed (and 11 injured) while attending an outdoor concert at Pangyo Techno Valley in Seongnam. The victims fell 18.9 meters down a concrete shaft when a large ventilation grate they were all standing on collapsed. They were watching 4Minute perform at the time.

Tidbit: Sometimes people only think about the Criminal Act (형법). But in Korea, there is no one, single “penal code.” In Korea, crimes are enumerated throughout innumerable statutes. And I would say this is what makes Korean law so confusing at times.

III. Additional Comments

There are two basic questions regarding criminal negligence.

One is: “How does gross negligence differ from intent based on reckless disregard?”

The other: “Can perpetrators be punished as co-principals to a crime of negligence?”

The answer to the first question is not always simple or clear. “Gross negligence” is when you could have averted the whole accident had you paid even the slightest of attention. “Intent based on reckless disregard” means you did not specifically plan on committing the crime, but you really couldn’t have cared less either way that you might as well have intended to commit the crime. So I guess the difference is whether you were “okay” with the potential unfortunate outcome, at the time. For example, you left your child out in the cold: a) truly believing he/she would be fine vs. b) knowing full well he/she could die of hypothermia. One example of intent based on reckless disregard: The captain of Sewol being convicted of murder. Still, the distinction is not always clear because we’re not God, and we judge people’s intentions (essentially) by their actions or words.

DID YOU KNOW? On October 21, 1994 (approx. 7:38 a.m.), the Seongsu Bridge (in Seoul) collapsed due to structural failure. This resulted in 32 people losing their lives and 17 others being injured. Several students from Muhak Girls’ High School lost their lives that morning. They were on their way to school.

With regard to the second question, there was a landmark case. In 1997, the Supreme Court – for the first time – convicted the perpetrators responsible for the 1994 Seongsu Bridge collapse as co-principals to crimes of negligence (97Do1740). This case was meaningful because there was controversy over whether we could accept the notion of perpetrators being in cahoots to a crime of negligence. (The very notion of “negligence” means that it was not “planned.”) Well I think, the Court accepted this notion because otherwise, there was no other way to properly punish the perpetrators. So even though the constructors and contractors, etc. were not literally in cahoots (to collapse the bridge), they each contributed in their own way, and this was enough to find them as co-principals. Another interesting question was: “When exactly were the criminal acts completed?” (This would be key in calculating the point from which the statute of limitations would run.) A: When the bridge collapsed.

MY THOUGHTS: In the future, I do feel AI can/will handle most, but not all criminal cases. I say “not all” because our notion of “right/wrong” is often very instinctive. Judges often grapple with the question: “How far can I possibly stretch the interpretation of the current law to ‘properly’ punish/exonerate this person?”

Merry Christmas aka Happy Holidays!!

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