Would Korea’s legal ‘loophole’ lead to setting loose a mass murderer?

Authorities face conundrum over fate of death row inmate as 30-year statue of limitations date nears

South Korea has not executed a single person since 23 people were hanged on Dec. 30, 1997, earning itself global recognition as an “abolitionist in practice.” Currently, a total of 59 death row inmates are incarcerated indefinitely, waiting for an execution that will likely never come.

But the nation’s law clearly recognizes the existence of the death penalty. This poses a dilemma for the government, as it may have to release a death row inmate in November.

Nov. 23 will mark exactly 30 years since Won Eon-sik was sentenced to death for arson at a religious facility that killed 15 and injured 25. However, South Korea does not have legal grounds to detain him after that date.

Death sentence and the law

Article 78 of the Criminal Act stipulates a statute of limitations for legal punishments after the initial sentence has been made. For example, if a person is sentenced to life in prison, but the sentence is not implemented within two decades for whatever reason, authorities cannot enforce it after this two-decade time limit.

Normally this would not be an issue since there would be no reason to postpone punishment for such a prolonged period of time. However, the situation is different for death row inmates. They are in prison not because they were sentenced to be there, but because their term has been suspended indefinitely. In theory, after 30 years their term “expires.”

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Such a situation has rarely been contemplated, mostly because no death row inmate has ever been in a situation where the statute of limitations, or “prescriptive period,” has expired. All other death row inmates are either behind bars or have died before their statute of limitations ran out.

The Justice Ministry has made it clear that it has no intention to release Won, saying that a death row inmate on standby for execution is part of the legal procedure involving capital punishment. In this case, the statute of limitations for Won’s sentence would not have expired.

But there has been a debate over the interpretation of this particular clause. Lee Chang-hyun, a professor of criminal law at Hankuk University of Foreign Studies, told local media that the ministry’s interpretation is “but an excuse.”

“In order for the waiting period to be considered a part of execution process, the Justice Ministry must carry on specific actions for the execution,” he was quoted as saying.

What is clear is that the situation is in a legal gray zone. Earlier this month, the Justice Ministry proposed a revised bill that would make the matter clearer. On April 12, the ministry said it will move to revise the Criminal Act so that the statute of limitations on the death penalty will be removed.

“There is no explicit regulation on whether a death row inmate being held until the execution of a death sentence would count toward the elapse of the prescription period, and its interpretation can lead to controversies,” the ministry said.

What does the future hold for death row inmates?

The Justice Ministry will collect public opinion on the matter until May 23, and the proposal will be deliberated by the Ministry of Government Legislation and the Cabinet. Subsequently, it will be forwarded to the National Assembly with the approval of President Yoon Suk Yeol. Regardless of the legislative process, legal experts say it is very unlikely the government would let a mass murderer walk free.

However, the Won controversy has reignited debate over capital punishment and whether Korea should join the league of countries that have abolished the death penalty. As the irony of the case stems from the fact that Korea has a death sentence that it does not enforce, removing capital punishment from the law would theoretically clear things up.

Last year, the Constitutional Court kicked off a hearing on the constitutionality of the death penalty. The decision is still pending as of April.

The court has ruled capital punishment constitutional on two previous occasions, in 1996 and 2010. While the 1996 ruling reached a 7-2 decision in favor of it being constitutional, the 2010 ruling was a much closer 5-4 ruling in favor.

However, recent surveys indicate that a majority of the Korean population is still in favor of retaining the death sentence. According to a poll last July on 1,000 adults by Gallup Korea, 69 percent of respondents said that the death sentence should be retained.

By Yoon Min-sik(minsikyoon@heraldcorp.com)