The Granite Tower
FEATURECOVER STORY
Escape From the State of Legal Limbo
Jeong Yeon Soo & Youn Bo Hyun  |  lauren98@korea.ac.kr / aqqua23@korea.ac.kr
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승인 2019.10.28  22:16:21
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“A detective, with a look of genuine shock on his face, looks straight at the camera as if he has spotted something crucial at the scene of a brutal crime beyond his gaze. This is from the film Memories of Murder (2003) directed by Bong Joon-ho, which is based on the true story of a serial killer who took the lives of many innocent women yet was never caught despite continuous efforts. The director used an eye-contact method in the last scene of the movie as if the protagonist spotted the killer among the audience, striking them with the strong impression of the crime itself. Sixteen years after the release of the movie, the criminal has finally been collared.”
 
The 30-years past Hwaseong serial murder case, which has caused outrage from the public due to the cruelty of crime, may finally be coming to an end. According to Officials of the Gyeonggi Nambu Provincial Police Agency, the prime suspect in the incident is believed to be a man in his 50s, currently serving a prison sentence for the rape and murder of his sister-in-law. It has been announced that the Deoxyribonucleic Acid (DNA) of the suspect matches at least two of the 10 reported cases, and evidence regarding the remaining eight cases remains unknown. Despite continuous efforts of the police and development of DNA analysis, blind spot of the law in Korea is delaying the end of decades-old crime.
 
Blind Spot of the Law
 
This incident shows that there is a legal limbo in the current law. As it is evidently portrayed in the case, although it is true that criminals committed crimes, there are instances where assailants are not actually punished in the law court. This blind spot, which is also called a dead zone, indicates some blind areas in the entire category of law, and legal limbo implies some situations that are not caught by law although it is a crime. This may violate the original purpose of the law which is to defend justice in society where many people of various backgrounds, cultures and races live together.
 
Law is made through a promise among citizens, and it was initially set up to regulate violent actions and prevent chaos in society. According to the Constitution of the Republic of Korea, law focuses on three main themes—national security, maintenance of order, and public welfare. Because people each belong to one country, they are under behavior restrictions of the certain countries’ law. Although each individual has the right of freedom, they have the same rights to live in a peaceful and safe community. Therefore, citizens abide by the laws, not doing anything they want but swallowing some freedoms in order to live in harmony. However, when legal limbo emerges, the public could doubt whether the law is operating efficiently or enforcing proper penalties to the criminals.
 
As law cannot regulate all the behaviors and unexpected situations that break social order, the appearance of legal limbo is inevitable in our current complicated society. In fact, Kim Woong, a prosecutor in Korea, participated in one television program broadcasted by Joongang Tongyang Broadcasting Company (JTBC) and mentioned that the blind spot of the law is sometimes essential because it can make the criminal justice system progress more efficiently. Moreover, some argue if law aims to eliminate legal limbo, citizens’ rights to maintain their freedom will be sacrificed due to the increasing laws.
 
Although there are unavoidable reasons why the blind spots of laws continuously appear, the necessity to punish crimes properly for a safe society is also to be considered with great importance. Justice should be the main goal that one country should pursue, so law should protect the weak from dangerous situations by preventing and punishing crimes. To actualize the intention, the content of the law should clearly indicate the factors of crime in such a way that all citizens can agree why it is a crime. Decreasing the number of people evading the net of the law could reduce the possibilities of such crime, while also respecting the rights of freedom not to be violated.
 
   
▲ 10 crime spots of Hwaseong serial murder case
 
Memory of Pain as an Opportunity
 
Besides for the serial rapes and murder of 10 women, the Hwaseong serial murder case has been called the worst unsolved crime for the appearance of multiple copycats who committed similar crimes, shrouding the case in further mystery. The victims were all women ranging across all ages and were cruelly murdered with inconceivably brutal criminal methods. At that time, the police, pushed by the public opinion, arrested many suspects yet failed to arrest the actual criminal.
Subsequently, the sad incident taught Korea a profound lesson about proper forensic science. While there had been plenty of opportunities to catch the criminal, the suspect got away before the police’s very eyes due to the lack of a systematic approach in inspection. Therefore, the case has led Korea to be ardently engaged in investigation techniques research. However, even with the advanced technology that has enabled the arrest of the criminal, the suspect oddly cannot be judged for his crimes after a certain lapse of time.
 
Statute of Limitations, Inescapable Shackles?
 
According to the legal writers of FindLaw’s team, recognized by New York Times legal experts and journalists from other prominent media, the statute of limitations is “A law that forbids prosecutors from charging someone with a crime that was committed more than a specified number of years ago.” The primary purpose of this law is to confirm that convictions are well grounded on solid facts that have not expired. It is to ensure collecting pieces of evidence that have not deteriorated over time, and to conduct fair and objective judgment based on the accurately observed charges.
The limitation period for the Hwaseong case at the time was 15 years, so the statute of limitations had already expired on April 2, 2006. While the statutory limitation for homicide and sex crimes aimed at people under the age of 13 was finally abolished in 2015, the change only applies to cases that had not become statue barred. Consequently, the newly introduced law does not apply to this case, and years of work will be rendered useless if the law is not changed.
 
Besides the Hwaseong case, the modification of the statute of limitations should be considered regarding many other cases that have been left unsolved as other wanted criminals exist who are unpunished due to the expiration of the limitations period. According to the Korean National Police Agency (KNPA), there is a total of 858 suspects within the last five years who remain unpunished. Considering the noticeable number of cases and that rape is also included among the charges, measures to prevent further misfortunes are urgently needed.
 
While this long-term unsolved case has fallen into oblivion, the police never closed the case even after the expiry of the validated date according to the statutory limitation period. The synergy between investigation efforts and the new DNA profiling techniques have finally paid off, after years of hard struggles. Even though many abandoned hopes for the arrest of the suspect, what seemed impossible became possible and reality proved the expectation wrong. As such, flexible approaches are needed to deal with many other serious incidents that passed the expiry dates such as Frog Boys or Sinjeong-dong Bizzare Rabbit that are associated with serial murder.
 
Forming a Watershed to Wind Up the Wretched Condition
 
Under the name of true democracy, citizens are demanding for the reconsideration of revision of the law. While maintaining the general structure of the statute of limitations, conditional validations could be applied for exceptionally serious crimes such as rape and serial murders that leave an indelible suffering and pain that will not wash away. Ahn Gyu-baek, a member of the Democratic Party of Korea asserted there should be special laws for crimes against humanity considering the true role of the nation to protect its citizens. He even proposed a bill for a special law regarding the case, denoting the strong will to penalize such criminals.
 
However, many lawyers oppose this idea stating that it could harm legal stability and place the rule of law at risk in terms of viola ting the protection of trust. It is evident that the nation should primarily abide by the fundament al law to avoid confusion and therefore should not easily be swayed by the swell of emotions. This could possibly pose a danger to the long-subsisting system that has supported the justice system in Korea. One of the dominant principles of the Constitution, which is the non-retroactivity of criminal law, states that one cannot account for the crime according to an altered standard as it may create inconsistency. In terms of this aspect, there seem to be many hardships in passing the special law.
 
However, the statute of limitations takes on a slightly different character in that it has been formed partly for administrative expediency rather than the non-retroactive aspect. Because the law was formed under the assumption that an investigative agency cannot permanently hold on to a certain unsolved case and it would be extremely strenuous for criminals after years of evading the police, strictly speaking, it is difficult to assure that the nullification of the statute of limitations is perfectly violating the legal system. In this stance, the government should deeply consider what is most necessary for the current legal system—efficiency or effectiveness.
 
Moreover, taking into account the true purpose of the statute of limitations, the legal prescription no longer seems necessary. Although the original lawmakers were concerned that evidence might be contaminated over time, obscuring the issue, the advancement of technology effectively enables the restoration of the outdated proof based on scrupulous analysis. Therefore, suspicions could be banished and the annihilation of the statute of limitations could be accepted as it has been in other advanced countries such as the United Kingdom (UK) or Germany that do not have statute of limitations except for minor offenses.
 
   
▲ Juvenile Act in Korea
 
Another Case Hiding from the Net of Law
 
In addition to the legal problems related to the statute of limitations, there is another chronic legal problem that exists in Korea—juvenile crimes. This type of crime is continuously increasing although there are laws to prevent such incidents. Currently in Korea, teenagers who are younger than 14 years old do receive a criminal penalty due to the law in force. Instead of a criminal penalty, people from age 10 to 19 can be put under protective disposition and some severe teenage criminals may be sent to the Youth Detention Center.
 
Regardless of age, there are too many incidents happening in society, and the crimes are becoming more violent. In the spring of 2017, a severe crime was committed by a young teenage girl who was only 16 years old. The incident happened in Incheon, where she kidnapped and killed one elementary school student who was only in second grade. What was worse, there was another student who was two years older than the murderer who received a part of the dead child’s body from her. As portrayed in this case, juvenile crimes are also severe and even well-planned.
 
The types of juvenile crimes are not hugely different from the adults’ crimes, so when those crimes occur, the entire society could be seriously shocked by the severe incidents, feeling panic that young kids commit such horrifying crimes. Even after the cases of murder and violence some of the criminals are not properly punished by the law due to the fact that they are teenagers. That is the point where the anger of citizens amplifies: a legal limbo also exists among children and some criminals are unpunished by the law.
 
Strengthening the Law to Prevent More Victims
 
In fact, the Juvenile Act exists to protect teenagers from crimes. However, the purpose of the law is to prevent teenage criminals, not focusing on the punishment of the incident. As they aim to accomplish the correction of young offenders successfully by the law, there are some opponents saying that the law should be changed into more strong regulations and punishments toward the juvenile criminals. They insist that although the ages of the criminals are low, punishment should be sentenced depending on the severity of crimes. This intensifies social controversy because the possibility seems low that the criminals would be actually corrected after spending years in the Youth Detention Center.
 
According to research of the government, the number of crimes including rape, theft, arson, and murder exceeded 15,000 cases during the past five years. This shows that although the youth population is decreasing, crime is still a problem. Until now, punishment against teenagers was weaker against adults because it was thought that children need one more opportunity to correct their behavior and thoughts. However, as time passes, more severe crimes are happening, so the voices to strengthen the law on children’s crimes are rising.
 
Diversified Crimes Constantly Increasing
 
Besides the case of murder in juvenile crimes, the method of violence is getting more diverse. As the current society is familiar with the world wide web through the Internet and cellphones, the number of cybercrimes committed by teenagers is also increasing. Even the cases of recording the daily lives of teenagers on video without permission are also increasing in our society. In 2017, the teenage victims were 36.7 percent of the total victims in video phishing.
 
Furthermore, the cases of online sexual harassment are also increasing nowadays. The usual paths of teenagers suffering from online crimes are mostly through games, social networking services (SNS), and online broadcasting. According to one thesis, sexual harassment is committed by strangers in 33.2 percent of cases, and sometimes the victims’ acquaintances are the perpetrators. Because teenagers are considered “digital natives” who use all the functions of those technologies more than older people, the possibility of exposure to online crimes is expanding. However, although the incidents are increasing, the protection by law is not helping all the victims of the crimes. It is certain that the law is trying to protect teenagers from those harsh environments, but it is hard to catch all the criminals who are hiding from the blind spots. This could make the legal limbo enlarge, and actually it is an inevitable social situation.
 
   
▲ Provided by Professor Kim Dong Jin
 
Controversy on Reform of the Prosecution
 
As one of the solutions for these blind spots of law, reform of the prosecution has rapidly emerged. It is one of the main agendas of the Moon regime to strengthen the country’s law enforcement body for the establishment of a righteous society. President Moon stated the need for stronger democratic controls on power organizations, and a suggestion was brought up of strengthening the prosecutions’ Criminal Trial, Civil Litigation Department and the Criminal Department to prevent a stretch of authority. As President Moon expressed concern over the expansion of institution’s influence and hierarchical organization of prosecution, General Yoon Seok-youl announced the abolition of special investigation divisions, specialized teams of elite prosecutors responsible for investigating high-profile corruption cases around the country, in awareness of the criticism.
 
However, the reform of the prosecution seems to be taking the unexpected turn as it recently faced another problem. The view towards the prosecution reform is clearly divided into two: those who support the Moon administration denouncing the abuse of power by the prosecution and those who oppose the government ’s attempt to influence the probe. As the problem has developed into the political conflict between Democratic Party’s defense and the opposition parties’ attacks on Cho, the reform of the prosecution at this stage seems to be fairly unclear.
 
As there is no organization to keep the prosecution in check, there are opinions to install an institution to keep an eye on their behaviors. As the main purpose of reform of the prosecution is to firstly arrange the power of investigation between the police and the prosecution, and secondly making the Senior Civil Servant Corruption Investigations, the supporting arguments are strongly pursuing the enhancement of the reformation. However, if the police is also guilty of corruption, the arrangement between them and the prosecution is not useless. Also, there are some worries that the senior civil servant corruption investigations might not work efficiently and the corruption then could not be eliminated. Therefore, this problem is still in controversy in Korea, with the public split in different opinions.
 
Facing the Complicated and Chronic Legal Problems
 
Finding the essence in the existence of legal limbo is somehow easy, because there are too many people and diverse kinds of incidents in society. The law may not detect all the crimes under their network because it cannot see everybody’s lives all day long. In some situations, if the law becomes stricter and regulates all the behaviors of people, the human rights to pursue freedom and happiness will be also violated by law. This can cause a contradiction between making the society safe to live happily and restricting people’s behavior, which could hinder the real happiness of all social members. Therefore, to solve this complicated and chronic legal problem, law should more precisely detect the severe crimes and punish them properly.
 
According to an interview with Professor Kim Dong Jin (English Language and Literature), who is currently working as a lawyer in Korea, the content of the law should be reasonable. He also said, “Not only enacting the law but also the content and the method to enforce it is important.” Moreover, there should be more opportunities for teenage students in school to recieve education about the current law. Although the Legal Education Support Act, which is a law to educate the public to know about the law, is enforced in Korea, there are still many who do not actually have knowledge about it. By learning the importance of law and the factors in it, people can gain more awareness that they should not violate the rules of society.
 
Professor Kim mentioned that strengthening the welfare system could be another effective way to decrease the number of crimes; especially in cases of juvenile crimes that most of teenage criminals have lived in unpleasant home surroundings. These measures could be some ways to lead the law to fulfill its main purpose as follows: preventing the crimes effectively and punishing the criminals properly in each case. Each law should designate and indicate the factors which could be regarded as a crime, making the punishment of the criminal easier and legitimate. If the law become more precise, the public may build up trust against the law and pursue a more stable society.
 
To Eliminate the Blind Spot of Crime Laws in Korea
 
The recent incident of the Hwaseong serial murder case should not merely remain as a one-time flash but should serve as momentum to eliminate the blind spot of crime laws in Korea. It is purely absurd to release the criminal who was caught at last by a great deal of combined efforts of many people just for the maintenance of the established system. While it is certainly significant to stabilize the law system in Korea by strictly sticking to its rules, it is also important to adapt to changing situations to properly respond to certain cases. Advanced solutions are currently in urgent need for reasonable, not antiquated society.

The heavy burden that has been long shouldered by society is finally one step from being unloaded. Under any circumstance, the number one priority is to hunt down the true criminal who committed the crime. Criminals, regardless of the gravity of their offenses, should be strictly penalized based on their unethical and unlawful acts that have deeply hurt others. In order to do that, the current loopholes of the legal system should be impeccably filled, which is an effective gateway to form proper Korean society. For better quality of life and safer environments for all, the revision of the law should be deeply considered. 

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