Transitional Justice in Korea: Legally Coping with Past Wrongs after Democratization

For more than a decade, Korean society has taken various legal steps to rectify past wrongs perpetrated by the old authoritarian-military regime. In 1995, the “Special Act Concerning the May 18 Democratization Movement” was passed in the National Assembly. Under this new legal circumstance, the two former presidents were imprisoned on charges of leading the 1979 military coup and brutally oppressing the May 18 Uprising of 1980. However, because such a transition from the authoritarian-military rule was established through a political compromise, Korean society had to experience a limited transitional justice. As another step to rectify past wrongs, the “Act for Restoring the Honor of Democratization Movement Involvers and Providing Compensation for Them” was enacted in 2000. Under this Act, a number of democratization activists have been recognized as “democratization movement involvers.” However, this Act has been strongly criticized because the activists using harsh counter-violence were also recognized as the “involvers.” In 2001, the legislature enacted the “Special Act for Truth-Finding Suspicious Deaths” to handle the suspicious deaths of many democratization activists during the old authoritarian-military regime. Also, broadening the scope of illustrating past wrongs, a series of laws was recently enacted to uncover the activities of pro-Japanese collaborators under the Japanese occupation in the early twentieth century. These various Special Acts for dealing with past wrongs certainly have never been free from political struggle between the liberal and conservative. Some argue that these acts were forged by agreements between these two factions. However, although each side has advocated somewhat differently, they have come together in the belief that Korean society needs to discard the legacy of the authoritarian regime. In this light, the acts are symbolic statements that officially declare the people’s dissatisfaction with the authoritarian regime. Therefore, they are necessary for Koreans to heal old wounds, and to move beyond their tortured past

Korean Criminal Law: Moralist Prima Ratio for Social Control

The fundamental framework of the Korean Penal Code has remained unchanged for half a century. However, a large number of special criminal acts armed with heavier punishments have been legislated. Since democratization, the question of whether the provisions of Korean criminal law are against nullum crimen, nulla poena sine lege has been taken more seriously. Arguments for the liberalization or decriminalization of Korean criminal law have proliferated. However, there is still a trend toward overcriminalization, and heavier punishment is still preferred for social control. Without serious debate over the legitimacy of subjecting citizens to double jeopardy, protective security measures are imposed upon citizens who have already served their sentences. Criminal law is prima ratio, not ultima ratio, for social control in Korean society. Korean criminal law reform must attempt to perform two seemingly contradicting tasks: it must not only de-criminalize the over-criminalized criminal law, it must also provide a blueprint for solving the worsening crime problem in modern Korean society

Aggravated Punishment on the Homicide of Lineal Ascendants in the Korean Penal Code: Maintain Filial Piety by Criminal Law?

Article 250(2) of the Korean Penal Code prescribes the crime of homicide of "lineal ascendants" in addition to the crime of the "ordinary homicide" in Article 250(1). Not considering the motives and the backgrounds of the homicide of lineal ascendants such as family violence, Article 250(2) unjustly prescribes aggravated punishment on the crime in the name of enhancing filial piety by legal authority, and bothers the judiciary from mitigating the penalty for those who murdered their seriously abusive parents. Article 250(2) is a feudal-patriarchal legislation that is not enlightened on the idea of modern family. It is neither desirable nor effective to affect and to maintain social morals by the criminal law in a modern democratic society, and accordingly it should be abolished. Although tradition and culture definitely constitute the basis of criminal law, it is the criminal law that modifies and adjusts them, according to the constitutional principles and distinguishes its role for social control from morals. Without Article 250(2), the lives of lineal ascendants are completely protected by Article 250(1)

The Exclusion of Illegally Obtained Confessions, Electronic Communications and Physical Evidences in Korea

The 1987 Constitution of Korea explicitly stipulates the principle of due process in criminal procedures and provides very detailed Bill of Rights provisions regarding criminal procedural rights. This constitutionalization of criminal procedure has brought significant changes in the theory and practice of the Korean criminal procedure. Exclusionary rules are in the middle of this revolution. The Korean judiciary and legislature that experienced the dark age of procedural rights under the long authoritarian rule chose to adopt the exclusionary rules as a useful tool to deter police misconduct. Firstly, this paper starts by reviewing the terrible situation under the authoritarian regime of Korea and the legal change after democratization. Secondly, focusing on the landmark judicial decisions and legislations including the Criminal Procedure Code and the Communication Privacy Protection Act, it examines three categories of exclusions: the exclusion of incriminating statements obtained in the process of illegal arrest or interrogation, communications by illegal wiretapping and physical evidences obtained by illegal search-and-seizure. Finally, it analyzes the remaining issues regarding the aforementioned exclusionary rules.This Article is funded by the Seoul National University Law Research Institute in 2014