South Korea's changing capital punishment policy
| Author | Byung-Sun Cho |
| DOI | 10.1177/1462474507087198 |
| Published date | 01 April 2008 |
| Date | 01 April 2008 |
South Korea’s changing
capital punishment
policy
The road from de fact o to formal abolition
BYUNG-SUN CHO
Chongju University College of Law, South Korea
Abstract
The most recent executions in South Korea took place in December 1997, when 23
people were executed at short notice on the same day. Similarly, nineteen executions
occurred in 1995 and 15 in 1994, in each instance occurring all on the same day.These
group executions seem to reflect cultural factors that monthly statistics alone do not
capture. No executions have occurred since 1998, but this de facto suspension has not
been reinforced by law. Since 1999, lawmakers have thrice endorsed a bill favoring life
imprisonment without parole in place of the death penalty, but each time the proposal
has stalled and failed to move forward. The need remains to develop a culturally
appropriate pro-abolition argument that could persuade the Korean public that the
death penalty is unworkable and wrong. On 21 January 2007, in the Inhyeokdang case,
the Korean Court acquitted 8 persons who had been executed 32 years earlier. The
hope is that, in light of strong arguments based on the risk to innocent persons and
the irreversibility of capital punishment, Korea will effectively transition from de facto
to formal abolition.
Key Words
Confucianism • death penalty • de facto moratorium • executions • necessary evil
thesis
INTRODUCTION
South Korea has been the site of prolonged debate over whether to abolish the death
penalty. In recent years, increased controversy surrounding capital punishment and
extensive legal maneuvering has led to a temporary suspension of execution. Since the
execution of 23 individuals in December 1997, no Korean citizen has been executed.
However, continued imposition of the death sentence has resulted in the accumulation
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PUNISHMENT
& SOCIETY
Copyright © SAGE Publications
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1462-4745; Vol 10(2): 171–205
DOI: 10.1177/1462474507087198
of 63 death row inmates who could be executed immediately on orders from the
ministry of justice. Since 1999, a draft bill calling for abolition of the death penalty has
thrice been submitted to the National Assembly. The National Assembly, however, has
been delaying review of the bill. Thus this article is situated and motivated by the follow-
ing questions: ‘What might be the future of capital punishment in South Korea? Is
abolition close?’ Because the present findings on South Korea are too piecemeal and the
conclusions too tentative to resolve these questions, and because reliance on ‘general
principles’ is dangerous, this article aims only to present an overview of the cultural
context, outline the main issues in the death penalty debates to date and sketch a
potential roadmap from de facto to formal abolition.
In selecting the subject matter, the author sought to emphasize past and present
moments that are both typical and salient with respect to changing capital punishment
policy, because the form or style of political leadership at any given moment can play
a decisive role. Section one explores the often overlooked human rights elements in the
history of capital punishment in South Korea. Section two analyzes creeping human
rights consciousness in the heated debates over the death penalty, in an attempt to shift
the focus away from all-or-nothing rhetoric to a more nuanced understanding of the
complex issues that concern both sides, such as political misapplication, all-on-the-
same-day execution strategy, deterrence and social control and the ‘necessary evil thesis’
of the courts. Section two also provides empirically based statistical evidence to serve
as a foundation for analysis within the debate. Section three traces the growing
influence of pro-abolition issues on legislative efforts as well as public opinion, with an
eye to facilitating the transition from de facto to formal abolition. Because the question
‘Is abolition close?’ admits of no simple or definitive conclusion, the final section reflects
on South Korea’s capital punishment policy, past and present, and maps out a poten-
tial path to formal abolishment.
HISTORICAL AND CULTURAL BACKGROUND
A brief history of capital punishment in Korea
This section presents a chronology of developments in the history of capital punish-
ment in South Korea. Ancient history books provide useful commentary on the early
Korean penal system. The first kingdom Gochosun, formed in 2333 BC, was governed
by Gija Paljogeumbeop (Codex of Eight Penal Provisions), which prescribed the death
penalty: ‘Sangsalja Jaesasang’ (murderers must pay by their death). The first criminal
laws were an outgrowth of the practice of personal justice, in which killing occurred as
acts of private retribution (Lee, Gi-Baek, 1972: 29; Seong, 2001: 4). By the first century
BC, Korea’s three ancient kingdoms of Goguryeo, Baekje and Silla ruled the whole
Korean peninsula and much of Manchuria. During the Three Kingdoms period (57
BC–668 AD) systematic criminal codes developed. For ultimate crimes against the
person, such as murder, personal vengeance had given way to lawfully derived and
administered death sentences. Death sentences were imposed for a wide variety of
offenses (Lee, Hui-Bong, 1979: 196). Goguryeo and Baekje were ultimately vanquished
by Silla in 668 AD and Silla unified the peninsula (676–935 AD). Silla introduced an
institutionalized pardon system for the death penalty (Lee, Hui-Bong, 1979: 24).
PUNISHMENT & SOCIETY 10(2)
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The succeeding Goryeo Dynasty1(918–1392 AD) established in the capital city a
facility charged with confining prisoners, and also enacted criminal law which included
humanitarian components such as a three-trial system for capital cases, a three-judge
system for trials and a furlough program. The law prescribed five kinds of punishment:
whipping by rod, whipping by club, labor, exile and capital punishment (Lee, Hui-Bong,
1979: 200–1; Seong, 2001: 6–7). Compared to the practices of former dynasties, death
penalty the execution practices in Goryeo dynasty were arguably more humane, because
the state religion, Buddhism, had the effect of restricting the use of capital punishment
(Oh, 1981: 25).
The final dynasty, Chosun (1392–1910 AD), inherited the five kinds of punishment
but expanded the use of imprisonment in place of capital punishment and codified
standards and procedures designed to establish order under its regime of law. The Chosun
Dynasty emphasized the Confucian order of a class society, and the death penalty served
as an important tool of imperial control (Seo, 1947: 11; Seong, 2001: 9) especially
against the ‘plotting of rebellion’. In 1894, during Gabo-gaehyeok (‘innovation’), great
changes were made to the modern penal system which lasted until the Japanese
occupation in 1910.
In 1894, cruel execution methods, such as beheading or hacking to pieces, were
prohibited; and in 1905, Korea’s first Penal Code, Hyeongbeop Daejeon (Great Codex
of Criminal Law) prescribed in article 94 that the death penalty should be executed
only by hanging (Cheong, 1962: 191). Under Japanese colonial rule from 1910 to
1945, the death penalty was imposed abusively to suppress the Korean Independence
Movement (Oh, 1981: 32; Seong, 2001: 10; Table 4 later), and the exiled Korean
regime, established in Shanghai, China as of 1919, formally abolished the death
penalty in article 9 of its Constitution (Kim, Yeong-Su, 1980: 86–7).
The present Korean government was established in 1948 and enacted its Penal Code
in 1950. Though the scope of capital crimes was restricted in the 1995 Revision of the
Penal Code, the present Penal Code still includes 15 death penalty provisions. In
addition, 20 other Korean laws contain 98 death penalty provisions. In sum, there are
113 death penalty provisions in 21 of Korea’s laws. The categories of capital offenses
number about 160. However, only 26 of these provisions (in 9 laws) relate to conduct
that involves murder or the causing of death. Among those 26 provisions, only 12 relate
to purely intentional murder (Kang and Kim, 2005: 136–57).
Rethinking human rights in the history of capital punishment
Contrary to general expectations, Korean history is characterized by the limited use of
capital punishment except in cases of political crime such as anti-imperial conspiracy.
Outside of political crime,2the religious influences of Buddhism and Confucianism and
the social norms of Confucian morality have collectively acted to constrain the practice
of capital punishment throughout Korean history.3
Buddhism emphasizes a radical, non-discriminatory respect for all life forms, while
Confucianism emphasizes social order and deems the body a bequest from the parents.
The influences of both are manifest in documents on ‘Hyulhyeong’4from the periods
of rule by the Goguryeo, Baekje, and Silla Dynasties (Oh, 1981: 25). According to the
documents of Dong-wang, ‘If a prisoner is accused of capital crime, the prisoner must
be sent to central investigation office for interrogation’ (Lim, 2000a: 344). In a similar
CHO South Korea’s changing capital punishment policy
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