It was murder for sure

The trial of 15 Sewol crew members including Capt. Lee Jun-seok ended on Nov. 11, 2014. While the prosecution indicted them on charges of murder, the court cleared them and convicted them for negligent homicide by abandoning the ship. Only the chief engineer, who abandoned a wounded crew member, was convicted of murder.

The Gwangju District Court sentenced Lee to serve 36 years in prison, and that is not a light punishment. But as a criminal law expert, I would like to point out some problems.

In a criminal trial, the presumption of innocence, principle of evidential justice and the prosecution’s burden of proof are respected. No matter how strong the suspicion is, a prosecutor must prove the charge beyond a reasonable doubt to convict the accused. Modern-day criminal law is based on this principle. Just because an outcome happened, an individual cannot be held accountable for its responsibility.

The court must examine the mind of the suspect — if he or she acted with an intention or whether it was negligence. Unless the review is done by God, everyone has some limit.

The sinking of the Sewol was not a simple accident. Many argued it was a case that illustrated the structural incompetence and corruption of the government and the country as a whole. In this disaster, we lost 304 lives as well as our trust in the government’s crisis management ability. We also came to forget the state-run authorities’ manipulation of evidence in the presidential election scandal and lost momentum for reform.

Concerns were expressed that a strong punishment for the captain, who was working on a temporary contract, would bring about the hollow satisfaction that something was resolved. And then the will to reform structural irregularities and overhaul the country ethos would be weakened. I have to express my support for those concerns, but there are some aspects that I do not agree with.

Supreme Court precedents and some arguments in academia show that a suspect must be aware of the outcome of his or her actions and accept them in order to be convicted of willful negligence.

Even if he didn’t actively accept it, not paying attention is also punishable. The Sewol case is a classic example.

The attitude of “as long as I survive, nothing matters” must be punished as gross negligence.

Not only the captain and crew but also some members of the Coast Guard who went to the site after receiving a distress call showed such an attitude.

They may not be obliged to sacrifice themselves in a heroic act, but they are obliged to fulfill their responsibilities.

There was enough time for a rescue.

If any one of the crew had broadcast an order to evacuate, all or most of the 304 victims would have easily been rescued.

It is debated whether Captain Lee ordered an evacuation or not. Even if he did, that didn’t fulfill his responsibility to prevent an accident as required by the Seafarers Act and his contract, so he must be found guilty of murder based on gross negligence.

Most of all, the victims of this disaster directly risked their lives. Lee was well aware of that but wasted time. That is no different from the chief engineer’s act of abandoning a wounded crew member. Lee must be convicted of murder.

We must thoroughly investigate why the ship sank; why the rescue was delayed; how owner Yoo Byung-eun died; and if there was any influence by outside authorities. We must change everything to prevent similar tragedies from happening.

A special investigation committee will be formed in January and the ship will be salvaged. I hope the truth will be pulled from the depths. At the same time, we must contemplate our standard for willful negligence.

Translation by the Korea JoongAng Daily staff.

*The author is professor at the Yonsei University Law School.

by Han Sang-hoon