[The Korea Herald] Is self-defense properly recognized?

By John Power

The Supreme Court in Seocho-dong, southern Seoul (The Korea Herald)

As an idea, the right to defend oneself from attack would appear uncontroversial. But in its framing in law and interpretation by legal authorities, the concept has at times been highly contentious, both here and abroad.

One of the most controversial cases involving self-defense in Korean legal history occurred in 1992, when a man who had habitually raped his step-daughter was killed by her boyfriend. The Supreme Court accepted that there had been a “threat of imminent harm” required for a plea of self-defense, but not that the response had been proportionate. The two were found guilty of murder.

Basic principles

“In self-defense, there are three basic principles or requirements involved: imminent threat of harm to the victim or a third party, proportionality, and intent to defend,” Kang Ju-won, a lawyer and member of the Korean Bar Association and the Seoul Bar Association, told Voice. “Here, ‘Imminent threat of harm’ refers to a situation where the threat is not a future threat; ‘proportionality’ refers to an amount of force that is reasonably necessary to prevent the present harm; and ‘intent to defend’ refers to the victim’s intent to use force as a means to defend as opposed to a means of attack.”

Korean courts have often been hesitant in recognizing pleas of self-defense, particularly in cases of mutual violence, such as fights.

“Korean courts have been passive in recognizing the principle of self-defense. Even though defendants contend justification for their crimes in quite many cases, courts precisely study the requirements of self-defense,” said Lee Ji-young, a public defender at the Anyang branch of Suwon District Court.

One reason why justifications of self-defense are rarely invoked successfully, according to Lee, is that the law places the burden of proof on the defendant to prove he was acting to defend himself.

“(He will need) defendant-friendly witnesses and recorded videos, etc., to prove his innocence or self-defense. In reality, defendants are not as skillful at collecting favorable evidence as the prosecution so they lose,” said Lee.

There are signs, however, that prosecutors and courts have been edging toward a more liberal interpretation of the concept. In October, a Prosecution-Citizen Committee decided not to press charges against a woman who bit off part of her would-be rapist’s tongue, recognizing her action to have been a legitimate act of self-defense. The citizens’ committee, introduced in 2010 to reflect public opinion in prosecutorial decisions, is roughly analogous to the grand jury system in the U.S.

“It has often happened that governmental power has not rescued citizens from random crimes … Therefore, it is cautiously predicted that the prosecution has been gradually (more) in favor of self-defense from a point of view of self-help,” said Lee.

Police guidelines

The Korean National Police Agency also recently revised its guidelines for identifying instances of self-defense. The agency outlines eight criteria in determining whether a case meets the requirements: The act must have been intended to defend; the defender must not have started the violence; The act of defending cannot be more violent than the attack itself; a deadly weapon was not used; further violence cannot be used after the attack; the defender cannot inflict more harm than the attacker; the act must not result in harm requiring more than three weeks of hospitalization.

“Although these factors may seem somewhat strict, they are usually taken into account as a whole,” said Kang. “Indeed, many view the new guidelines as an attempt to introduce a more lenient stance in acknowledging the argument of self-defense.”

Regardless, the principle’s application has shown marked differences from other jurisdictions. The killing of teenager Trayvon Martin in February drew attention to Florida’s stand your ground law, which permits the use of lethal force in cases where it “is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.” Police controversially did not initially arrest the shooter, George Zimmerman, possibly using the rationale of the law. Zimmerman was eventually charged with second-degree murder by a special state prosecutor six weeks after the killing, following a massive public outcry.

Legal critics of Florida’s law and similar laws in other U.S. states argue that the provisions give free rein to people to kill based on perceived danger, whether or not the danger is real. Korean law, which, unlike American stand your ground laws, does not outline a justification for “deadly force,” permits only force proportionate with the aim of “repelling” an attacker. This standard also applies in using force against an intruder into your home, whereas many U.S. states have “castle” statutes that apply the stand your ground principle to property. Florida was the first state to expand the long-recognized castle doctrine to outside one’s property, presaging similar action by at least 25 other states.

“The amount of force entitled would differ depending on whether the intruder was carrying a deadly weapon, the intruder’s manner of breaking in, the type of threat used, or the number intruders involved,” said Kang. “In case of break-ins, the criteria of ‘imminent harm’ or ‘intent to defend’ would not be such a big issue. The key issue would be ‘proportionality.’ In other words, was the force used by the defender reasonably necessary, from an objective point of view, in ‘repelling’ the intruder?”

Legitimate self-defense

While Kang pointed out that Korea has relatively low violent crime compared to some other jurisdictions, he said that an overly restrictive conception of self-defense could inhibit victims of violence from legitimately defending themselves.

“We need to keep in mind that Korea is generally regarded to be one of the safer parts of the world with a relatively low number of violent crimes,” said Kang. “Still, I believe a rigid, mechanical interpretation of the law runs the risk of psychologically deterring people from resorting to force as a legitimate means of defending themselves.”

By John Power (john.power@heraldcorp.com)