U.S. lawyer: South Korean legal system puts GIs at disadvantage
August 22, 2006
Servicemembers accused of a crime in South Korea face a far different ordeal than they would back home, says a private U.S. lawyer practicing in South Korea.
For starters, justifying participation in a fight or illegal activity because “someone else started it” amounts to guilt, said Brendon Carr of the Seoul-based SLG law firm.
Carr has practiced law in South Korea for 10 years and was previously based in the country as a sailor.
“There is a right of self-defense in the U.S.,” Carr said. “There is no corresponding right in Korean law. If you take my stuff and I punch you, I’m guilty. That’s a tough concept for a soldier to grasp. They come from a culture of measured violence.”
The Korean justice system is based on Japanese law and inspired by 1930s Germany, Carr said. The U.S. tradition, stemming from English common law, recognizes “natural rights” belonging to each individual. In the Korean system, “you get rights based on whatever rights the state gives you,” Carr said.
In most cases, a servicemember accused of a crime starts at a disadvantage because of the language barrier, Carr said. An investigating officer begins forming an opinion for their report within minutes of arriving at a scene, he said.
“Most (servicemembers) are counseled, ‘Keep your mouth shut’ … which enables the other side to shape the record further. It works to the detriment of the GI,” Carr said.
When hiring a lawyer, Korean civilians prefer a former prosecutor or judge with connections to the local system, Carr said. The lawyer costs about $10,400 to start, with additional funds paid upon a favorable ruling.
U.S. Forces Korea provides servicemembers with a fixed payment worth about $6,200, regardless of outcome, Carr said.
“That virtually ensures almost no attention to the case, because there is no incentive,” Carr said. “Win or lose, the lawyer gets paid the same amount.”
Regardless of whether the accused believes he or she is innocent or the acts were justified, the next step for any defendant going to trial is to start apologizing.
First, the accused must begin offering payoffs to the alleged victims.
“The accused is very much at the mercy of the accuser,” Carr said. “Whatever they want, the accused has to hand over … and the perception is that [U.S. servicemembers] are more or less a pot of money.”
The accused then must apologize in court for the action and promise not to commit any further crimes. If he or she is convincing, the judge may use discretion to suspend any incarceration.
The judge also may suspend the sentence if there are extenuating circumstances.
When Pfc. Nicholas Acosta’s case goes to trial Aug. 30 on five charges stemming from the April 15 incident, he’ll be hoping the judge will take into account his belief that he and his friends were in physical danger.
But there is little chance of a not-guilty verdict. Acosta’s lawyer, Jin Hyo-keun, said he expected a one- or two-year prison sentence.
“If you are indicted (in South Korea), you are guilty,” Carr said. “That’s not entirely the case, but it’s certainly observed.”