[WHY] Do Korean judges' 'lenient' sentences warrant public anger?

Social Affairs

Published: 27 May. 2023, 07:00 Updated: 02 Jun. 2023, 13:47

[WHY] Do Korean judges' 'lenient' sentences warrant public anger?

Police officers escort Korean crypto mogul Do Kwon in Podgorica, Montenegro, on May 11. Kwon, who is on trial in Montenegro for forging travel documents, is wanted in Korea, Singapore and the United States for the involvement in the collapse of his company Terraform, which is estimated to have cost investors more than $40 billion. [EPA/YONHAP]

Do Kwon is wanted in Korea, the United States and Singapore for allegedly causing billions of dollars of damage to crypto investors around the world.

The call for justice is getting louder — but not in Korea.

Kwon, 32, the mastermind behind the failed TerraUSD and Luna cryptocurrencies that wiped out around $40 billion in a crash last May, was arrested in Montenegro in March after Interpol issued a red notice requesting law enforcement agencies around the world to find and arrest the Terraform Labs founder.

It’s still unclear whether he is a criminal or not. Nevertheless, calls for justice against the alleged conman are growing, but not justice that is administered in Korea. Why? Because the likely punishment that a Korean court would hand down would be considered by many as a mere “slap on the wrist."

The Korean public has long complained of local courts' leniency, comparing the lower levels of punishment that Korean criminals receive to similar cases in other countries, namely the United States.

In the case of Kwon, experts wager that if in the United States he could be sentenced to over 100 years in prison for financial fraud. Korea, on the other hand, doesn’t even have a proper set of laws in regards to digital assets or how they should be dealt with, making it difficult to forecast a punishment.

Newspapers are often filled with stories of criminals responsible for a wide range of crimes getting away with fines or probation, or other punishments that fall far short of people's expectations, leading to a general dismay in the public’s viewpoint of the Korean court.

Why does the Korean court continue to hand out “lenient” penalties despite decades of being criticized for doing so?

[SHUTTERSTOCK]

Are punishments actually weaker in Korea?

Yes, but only when comparing heinous crimes to countries like the United States or the United Kingdom.

In cases of fraud, the most-severe sentence handed down was 40 years by the Supreme Court to Kim Jae-hyun, the CEO of Optimus Asset Management, which was caught up in one of the largest fund fraud schemes in Korea’s history.

Large-scale fraud can be punished with life in prison, but such a sentence has never been given out.

In contrast, in the U.S., Bernard Madoff, who was found guilty of perpetrating a multibillion-dollar Ponzi scheme that defrauded investors across the globe, was sentenced to 150 years in federal prison in 2009. He died in prison in 2021.

Cho Doo-soon [YONHAP]

A protest is held on Dec. 12, 2020, opposing the release of child rapist Cho Doo-soon in front of the detention center in southern Seoul. [YONHAP]

Another prime example is Cho Doo-soon, one of Korea’s most notorious child rapists.

On Dec. 11, 2008, Cho kidnapped an eight-year-old girl — who the media later gave the pseudonym of Na-young — on her way to school in Ansan, Gyeonggi. Na-young underwent eight hours of surgery due to Cho’s violence but the rape and torture left around 80 percent of her lower organs completely dysfunctional.

Cho was given 12 years in prison and mandated that he wear an electronic anklet for an additional seven years — a sentence that took into account the defense’s argument that Cho was under the influence of alcohol when he committed the crime.

In contrast, a Philippine national was sentenced 14,400 years in 2010 for raping his teenage daughter over the course of a year.

In 2009, a Texas court handed a 4,060-year prison sentence to James Kevin Pope, who raped three teenage girls over two years.

How unhappy are Koreans with courts' punishments?

Sixty-six percent of Koreans distrust the decisions that come from the court.

A 2020 survey by market tracker Hankook Research revealed that 87 percent of Koreans believe that the punishments are too “lenient” and 90 percent of people believed that punishments should be stronger, especially when it comes to sex crimes and crimes against children and minors.

The survey was conducted on 1,000 Korean adults between Oct. 30 and Nov. 2, 2020, a month and a half before child rapist Cho was released from prison on Dec. 12 and headlines were filled with worries of parents and his potential neighbors.

Cho Ju-bin, the mastermind behind the so-called Nth Room digital sex crime, is being sent to the prosecutors' office in central Seoul on March 25, 2020. [YONHAP]

A protest is held calling for strict punishmen against the criminals of the so-called Nth Room digital sex crime on Nov. 26, 2020, in front of the Seoul Central District Prosecutors' Office in southern Seoul. [NEWS1]

The Blue House petition board best showed such sentiments.

During five years of Moon’s office, 284 petitions surpassed 200,000 signatures and received responses from the government.

Among the top 25 most-signed petitions, 12 were related to requests for tougher penalties for criminal cases or reinvestigating a closed case so that the perpetrators are given longer sentences.

The first and second most-signed petitions were both to do with the so-called Nth Room case, perhaps Korea’s worst case involving sexual exploitation, blackmail, drugs and more. Over 2.7 million signatures were collected on a petition demanding the Nth Room criminals’ personal information be disclosed.

Other petitions called for tough punishment against the so-called “Gangseo District PC murderer” who brutally stabbed a 20-year-old man to death in a PC cafe in October 2018. It garnered 1.2 million signatures. A similar request for eight teenagers who stole a car and fled after hitting an 18-year-old delivery driver in March 2020, got 1 million signatures.

A Supreme Court meeting held on May 11 [YONHAP]

Why has such distrust built up against the court?

The easy summary is: The people and lawmakers demand higher punishment, but judges think otherwise.

There exists a great disparity between the legal bounds of how harshly a criminal can be sentenced as dictated by the law.

For instance, the minimum prison sentence for murder is five years in prison but rape of a minor that results in bodily injury is a minimum of 10 years. The 10-year minimum came as an amendment to the Act on the Protection of Children and Youth Against Sex Offenses after crimes like the aforementioned Cho case.

“Lawmakers keep pushing the legal cap on crimes higher and higher because that’s what people want,” said Soung Jea-hyen, director of the international affairs division at the Korea Institute of Criminology and Justice (KICJ).

“But such moves in the eyes of the judges seem inaccurate because the law hasn’t been passed after careful research of the elements of each crime but rushed to the National Assembly because lawmakers need the votes. So the judges keep on reducing the sentences based on different sentencing guidelines, which again leads to criticism from the people and leads to a vicious cycle."

Sentencing guidelines refer to the set of rules that allow a judge to deduct or raise the punishment according to different elements regarding the criminal or the crime. For instance, if a person has mental health issues or they are the sole breadwinner of the family, then their sentences are likely to be reduced.

Being drunk can also reduce sentences, but bills are being put forward to the National Assembly to scrap such a rule.

The Supreme Court building in Seocho District, southern Seoul [JOONGANG ILBO]

Why do judges continue to hand down "lenient sentences"?

Simply put, the Korean judicial system believes that penalties should be focused on reforming criminals, not only on punishing them.

Korea takes what’s referred to as the Continental Law, as opposed to the Anglo-American Law, which is also referred to as the Common Law.

Japan and most countries in Europe and the Latin Americas also stick to Continental Law. The so-called Commonwealth countries such as Britain and the United States are prime examples of those that use Common Law.

Continental Law adheres to the written law and its core principles, while Common Law prioritizes the rulings of precedents, giving more flexibility and less binding limits when it comes to handing out sentences. But most importantly, Continental Law is aimed at educating the criminals while Common Law aims to punish and isolate the criminals from society.

Countries that adopt the Continental legal system usually have caps for the maximum number of years in prison that someone can be sentenced to, such as 50 years in Korea, 15 years in Germany and 30 years in France and Italy.

While Common Law countries impose longer jail sentences, they also offer more opportunities to criminals in terms of bail and cutting time off their sentences for good behavior or other factors.

A Sentencing Commission meeting held on Dec. 5, 2022 [SENTENCING COMMISSION]

Can it be changed?

Changing the whole set of laws and the entire legal system would be impossible. So instead, the Supreme Court established the Sentencing Commission in 2007 to make its sentencing guidelines clearer and disclose them to the public.

The commission discloses details on by how much punishment for certain crimes can be reduced and experts at the commission work to bridge the gap between public sentiment and court rulings.

“The Sentencing Commission has been established ‘to ensure fair and objective sentencing in which the people can be confident,'” according to an official from the commission.

“But since the boundaries of how heavy or light a sentence can be are so wide, that means judges need a set rule to abide by when they’re sentencing criminals. The commission is meant to make the guidelines rational and be consistent in sentences, even if they’re given out by different judges.”

The commission also offers a program where people can try handing out sentences themselves after listening to both sides of the story.

Participatory trials, which are trials attended by non-legal personnel who act as jurors, also help people understand the current legal system, according to Kim Han-kyun, a senior search fellow at the KICJ.

“Research proves that people demand severe punishment only when they read about it in the papers, but they end up making similar conclusions after they actually take part in trials and hear the full story,” he said.

“There need to be more opportunities where people come to understand why such a judicial judgment was made and raise public awareness about the legal system as a whole. The more people understand that sentences are made rationally, the lesser demand will be made for lawmakers to make punishments stricter.”

BY YOON SO-YEON [yoon.soyeon@joongang.co.kr]