There was reasonable doubtWillful negligence means intentionally performing an unreasonable act even though you are aware of the outcome. It is a
controversial matter whether to convict someone for murder based on willful negligence. That controversy recently gained
prominence in Korea during the trial of Lee Jun-seok, captain of the doomed Sewol ferry. The court cleared him of murder,
but arguments were made that the law should have been more aggressively interpreted by taking into account the gravity of
The Gwangju District Court cleared Sewol Capt. Lee Jun-seok of murder by dismissing the gross negligence charge. Many people are enraged by the verdict, but the outcome was somewhat expected. In order to convict someone of murder, the prosecution must prove that the suspect had an intention to kill someone and was clearly aware that his actions would cause the victim’s death. That is, however, very difficult to prove.
Around 1:25 a.m. on Dec. 15, 1970, the 365-ton Namyeong sank. The ferry, carrying 338 passengers, left Seogwipo in Jeju for Busan but capsized and sank during its voyage. Only four crew members and 12 passengers were rescued while 326 died.
An investigation later revealed that six of the crew were unlicensed.
At the time, the prosecution arrested the ship’s acting captain, Kang Tae-su, its owner Kang Wu-jin and three officials of the maritime authority of Busan on charges of gross negligence. Four policemen who had examined the ship were arrested for dereliction of duty and the head of Seogwipo Police was also arrested.
The Busan District Court convicted the captain of involuntary manslaughter and ordered him to serve 18 months in prison.
The Jeju District Court handed down suspended prison terms to the police officials, ruling that they had no intention to kill the victims.
When the Sewol sank, law experts said Lee would be charged with involuntary manslaughter and breach of the Seafarers Act. They said current laws wouldn’t allow the court to punish the captain for murder even though he ran away without rescuing the passengers.
After public anger boiled over, the prosecution took a different route. They reviewed the possibility of prosecuting the captain and crew for murder and additional punitive charges and the media joined the efforts to find additional charges.
The prosecution argued that Lee and 14 crew members of the Sewol had known that the ship was sinking and they had various ways to evacuate the passengers but didn’t do so. Their behavior was gross negligence leading to murder, the prosecution argued, and it asked the court to hand down a capital punishment verdict.
At the same time, the prosecutors also indicted them on lesser charges just in case that the murder charge wasn’t accepted.
The Gwangju District Court said to convict the captain on the murder charge, the captain must have been aware that his act would cause the deaths of the victims and accept that outcome. Based on the communication transcripts, Lee’s order for an evacuation and the Coast Guard’s rescue mission, it was hard for the court to say that he had accepted the outcome.
The principle of “in dubio pro reo” (when in doubt, for the accused) means that a defendant may not be convicted when doubts remain. To convict a defendant, the charges must be proven beyond a reasonable doubt. If not, the defendant should be found not guilty. The prosecutors have the burden of proof and without actively proving the charges, the defendant will be acquitted. Clause 4 of Article 27 of our Constitution also provides the same principle.
We cannot hold the captain and the crew solely responsible for the tragedy of the Sewol. The victims died in front of our eyes and none were saved. This was the fault of a poor national crisis management system and a longtime tradition of not doing one’s best.
Translation by the Korea JoongAng Daily staff. It was murder for sure
The author is a lawyer in Seoul.
by Noh Young-hee
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