The culture of South Korea places a high value on honor, or face. When someone expresses regret or asks forgiveness they are seen as repudiating their inappropriate behavior and choosing proper conduct. This choice to behave in a proper manner reduces their dishonor and saves face. Admission of wrongdoing, expressing regret, and asking for forgiveness are behaviors that are also granted high standing in the Korean criminal justice system. A defendant who admits to wrong behavior receives a reduced sentence. A defendant who proclaims their innocence is perceived as unrepentant and, if convicted, receives a harsher penalty. The regretful offender usually obtains release from confinement during the pre-trial period and a defendant who obtains the forgiveness of the victim, or the victim’s family, often escapes jail time even for the most egregious offenses.

However, this system often results in court decisions that confound Western sensibilities and, more and more frequently, infuriate the Korean populace. Recently two cases have brought attention once again on the often inscrutable decisions of the Korean courts. The first case revolves around the release of the box office film Dogani , or “the Crucible,” which dramatizes the sexual molestation of students at a school for the hearing-impaired from 2000 to 2005 and highlights the minimal punishment imposed on the perpetrators. The second case is a recent decision by the Seoul high court drastically reducing the prison sentences imposed by the lower court on four young men in their 20s convicted of the prolonged sexual assault of a 12-year-old girl. In both cases when reducing the prison sentence, or imposing probation in lieu of prison, the courts referred to the perpetrators expressions of regret and, more significantly, to the fact that the perpetrators had reached settlements with the victims and their families.

However, the question arises whether reducing criminal sentences or choosing whether to impose only probation based on these factors is appropriate. On closer examination it is clear that this system creates perverse incentives. A defendant’s knowledge that a reduction of the severity of the prison sentence imposed will be based on an admission of guilt and its concomitant perceived regret may cause even an innocent defendant to admit guilt in order to reduce the potential penalty. This becomes even more likely when a defendant realizes that admission of guilt can result in avoiding jail time or even the potential cessation of prosecution. Nonetheless as society must rely on the criminal justice system to accurately distinguish between the innocent and the guilty, everyone under the law must hope that the incentives created by this factor never result in any severe violation of an innocent individual’s basic human rights to life or liberty.

Regardless of society’s hope regarding infrequent admissions of guilt by innocent individuals, nothing can excuse the court’s predilection towards reducing or even vacating the criminal sentences of those offenders who obtain the forgiveness of the victim, or the victim’s family. From a purely philosophical standpoint when a person commits a crime, that person commits it not just against the victim, but against the entire society. According to this theory of social contract, victims simply do not have the power to free the perpetrator from punishment. The offender is punished because of their violation of the social contract under which all members of a society have agreed to live. The victim may be eligible for compensation for pain and suffering, but the offender cannot escape the punishment of society. Repeated failure by the courts to adequately punish offenders for violations of the social contract inevitably undermines the rule of law that governs society and increases everyone’s vulnerability to crime.

On a less philosophical level in present day South Korea offenders usually gain a victim’s forgiveness through the payment of money or the power of the offender’s position. The perverse incentive this creates allows those individuals in South Korea with sufficient resources, power or connections to repeatedly violate the law while incurring minimal or no punishment. The recent changes by the Korean government to prosecute those who commit sex offenses against the disabled regardless of the victim’s complaint is a step in the right direction, however the Korean Ministry of Justice also recently released data showing that high position and high income sex criminals received lighter sentences or suspended indictments than less fortunate members of Korean society. These offenders are able to reach settlements with their victims and are left free to violate another member of society. The result is that the weakest members of Korean society, the children and the disabled, are left defenseless against these offenders. And as Winston Churchill said, “You can measure the degree of civilization of a society by the way it treats its weakest members.”

By Daniel Fiedler 

Daniel Fiedler is a professor of law at Wonkwang University since 2007 and is the lawyer representative for international marriages in Namwon City since 2009. ― Ed.