Criminal Settlements and Non-Punishment Letters in Korea

"If we settle, does it go away?" has no single answer in Korea, because the effect of a settlement depends on the offence. Some offences cannot be prosecuted at all without a complaint or against the victim's stated wish; in most others a settlement is a sentencing factor and nothing more. Knowing which group you are in decides what a settlement is actually worth.

The three groups

1. Settlements that end the case

Where the offence requires a complaint, the absence of one means no prosecution, and a withdrawal produces a dismissal. Where the offence is barred by the victim's wish, an expression of that wish produces a dismissal in the same way. This is the limit of what a settlement can achieve by itself.

2. Settlements that do not end the case

Theft, fraud, embezzlement, property damage, sexual offences, drink driving and obstruction of official duties carry no equivalent provision. A victim who does not wish to punish does not prevent prosecution or conviction.

That does not make a settlement pointless. Article 51 of the Criminal Act requires the court to take account of the offender's relationship with the victim and the circumstances after the offence, and in practice restoration of the loss carries substantial weight in both the charging decision and the sentence.

3. The deadline runs to the first-instance judgment

A complaint may be withdrawn until judgment is pronounced in the first instance (Criminal Procedure Act art. 232(1)), and the same rule applies to the withdrawal of a wish to punish (art. 232(3)). The Supreme Court has confirmed that an expression of a wish not to punish made after the first-instance judgment has no effect (Supreme Court, 29 September 2000, 2000Do2953).

There is a further consequence to note. A person who withdraws a complaint cannot complain again (art. 232(2)), and the same applies to withdrawal of a wish to punish (art. 232(3)). Once it is taken back, it cannot be restored.

4. But the deadline and the bar apply only to the first two groups

Both the first-instance deadline and the bar on re-complaining concern offences where a complaint or a wish to punish operates as a procedural condition of prosecution — that is, the first two groups above. There are fewer of those offences than most people assume.

The Supreme Court has held that, unlike a complaint-dependent offence, in an offence that is not complaint-dependent a complaint is merely a lead for investigation, so the offence can be examined regardless of whether a complaint was made or withdrawn (Supreme Court, 10 November 1987, 87Do2020). It went on to hold that the withdrawal of a complaint in a fraud case, or a fresh complaint after withdrawal, presents no obstacle to punishment.

For every other offence a settlement is sentencing material rather than a procedural condition. That is why a settlement still matters at the appeal stage: it is not unusual for a sentence imposed in the first instance to be adjusted on appeal after the loss has been restored.

The opportunity does end at the appeal. Article 383 of the Criminal Procedure Act limits the grounds of appeal to the Supreme Court, and confines an argument that sentencing was grossly unjust to cases where death, life imprisonment, or imprisonment or confinement of ten years or more was imposed. In most cases the Supreme Court does not review sentence at all. The appeal is therefore realistically the last stage at which a settlement can change the outcome.

5. When the victim cannot be found

An offender often wants to settle but has no way of contacting the victim, particularly in sexual offence cases. A deposit is the route available.

• At the trial stage. Article 5-2 of the Deposit Act allows a defendant in a criminal case who cannot ascertain the victim's personal details under law to make a deposit for the victim at the deposit office for the district in which the court hearing the case sits. The deposit document may identify the victim by the court, case number, case name and the description in the indictment instead of personal details.
• At the investigation stage. That provision presupposes a case pending before a court. During investigation a deposit is made under article 487 of the Civil Act.

A deposit is not an expression of a wish not to punish. Making one does not lead to dismissal in an offence barred by the victim's wish. It is treated as an effort to restore the loss, and the victim may refuse to accept it.

6. What the agreement should contain

• A clear statement that the victim does not wish the offender punished. In an offence barred by the victim's wish, the presence or absence of that wording decides the outcome; a general statement that matters were resolved amicably may not be enough.
• The amount, the method of payment and the date of payment.
• Whether civil damages are included, and if so, their scope. Article 25(2) of the Act on Special Cases Concerning Litigation Promotion allows a compensation order in respect of damages agreed between the offender and the victim.
• Whether the parties agree not to disclose the terms.

7. From the victim's side

There is no fixed tariff for a settlement. The extent of the harm, the length and cost of treatment, the period of lost work, the risk of reoffending and the offender's attitude are all weighed. Settling quickly at a low figure and then discovering that treatment will continue is a common regret, so where treatment is ongoing it is safer to wait for the picture to settle.

The meaning of a settlement, and the time available, depend on the offence and on the stage the case has reached. Contact Taeshin Law Firm with the case number and the notice you received, so that the timing is not missed.