Why hasn’t the death penalty been abolished in South Korea, and why is it still in place?

Learn why the death penalty hasn’t been abolished in South Korea and why it’s still in place.

 

It is often said that ‘law is the minimum of morality’. This is interpreted to mean that among the many moral norms, the law, especially criminal law, is the one that needs to be upheld by force. As you can see, the law is an indispensable element for maintaining society. However, the specific laws vary from society to society and country to country. This is only natural, as different countries have different situations and different people who legislate. However, there is one controversial law that is common to many countries, and that is the death penalty.
In South Korea, the death penalty is recognized as a type of punishment. Article 41 of the Penal Code defines the death penalty, which is the maximum penalty for committing murder and other crimes. According to Amnesty International’s annual report in March 2011, South Korea is one of 34 countries where the death penalty is legally recognized and sentences are carried out, but no executions have taken place in the past decade or there is a policy or practice freeze on executions. It is a de facto abolitionist country, with conflicting views on whether it should be fully abolished or retained. The death penalty is such a hot-button issue that there have been several abolition bills introduced in parliament, but each time they have been automatically killed by the end of the session.
As mentioned earlier, criminal law is the last resort for regulating society. The death penalty is one such discipline, and it has served as a deterrent to criminals, reducing the incidence of heinous crimes and maintaining social order. It is questionable whether South Korea, already a de facto abolitionist country, needs to abolish the death penalty. Even if it is not enforced and only exists on the law books, it is helpful. Just as having an army, even if it doesn’t go to war, can help keep a country safe and deter its neighbors from provoking war, the death penalty indirectly helps maintain social order. Also, the majority of the population is against the abolition of the death penalty. So the death penalty is necessary.
However, some people are calling for its abolition. There are many reasons given by proponents of the death penalty, but most of them are rooted in basic human rights. In the broadest sense, all corporal punishment used in criminal law violates human rights, and some extreme thinkers advocate for its abolition. The question is how far human rights can be enforced by the law, i.e., to what extent can the state, and by extension society and its institutions, limit the rights of individuals, and in particular, can the state take away one of the most fundamental human rights: life? This is one of the most heated debates among the rationales for the death penalty.
However, it is important to note that the death penalty is the maximum legal punishment a court can impose, making it a very rare sentence. In South Korea, roughly only 1% of those accused of murder are sentenced to death. And no executions have been carried out since the end of the Kim Young-sam government, which practiced capital punishment, and since then, the term has been used in the sense of the maximum punishment that a court can impose, rather than in the sense of executing the offender. In other words, even those sentenced to death in South Korea are not executed, meaning that they are not executed to the point of harming the right to life. Therefore, there is no reason to abolish the death penalty in a country that has not been executed for 10 years and is classified as a de facto abolitionist country. The death penalty is currently imposed more as a symbol than as an actual execution.
There is an argument that it should be abolished because once a wrongful conviction occurs, it is irreversible. This argument is quite persuasive, as there are cases abroad where people have actually executed innocent people. However, other penalties that result from wrongful convictions are also irreversible, such as life imprisonment. No amount of criminal compensation, such as money, can restore the freedom lost in prison. If the death penalty were to be abolished because of a wrongful conviction, other penalties would have to be abolished for the same reason, until there would be nothing left but fines and other punishments. The danger of wrongful convictions is a problem that needs to be corrected by a proper judicial system, fair laws, and reasonable trials based on experience and logic, not by abolishing the death penalty.
Another argument for abolishing the death penalty is that it is used as a means of regime maintenance in dictatorships. Many dictatorships currently use the death penalty, and it has been abused in the past, even in South Korea. However, in the 21st century, it’s hard to imagine South Korea becoming a dictatorship. This is a problem that needs to be solved by strengthening the separation of powers to prevent dictatorships and ensure the independence of the judiciary, not by abolishing the death penalty. Abolishing the death penalty in dictatorships will not solve the problem. Instead, it is better to try to establish a proper democratic government in dictatorships.
Some religious organizations also oppose the death penalty. This may be on religious grounds, or because of the many examples of people who have been persecuted and wrongfully martyred for their religion. However, the principle of separation of church and state requires that religion be kept separate from politics and law, so you can’t change the law on religious grounds. In the same way that people who conscientiously object to military service for religious reasons should be punished. In the case of martyrs, the death penalty has been abused, just as it has been used by dictatorships to maintain their regimes. All institutions are abused because humans are not perfect, but we cannot abolish all potentially abusive institutions for fear of such abolition.
The mental conflict or anguish of executioners, the conflict of killing a person in the name of the law, is an important argument for abolitionism. However, not only executioners, but also prison guards and other related professions are necessary to maintain social order and uphold justice. Human beings are not without suffering, and the suffering of the professionals who execute crimes must be taken into account when punishing them, but just as the state and society cannot give up punishing crimes, someone has to do it.
Furthermore, the argument that the death penalty should be abolished does not reflect public opinion at all. In South Korea, a majority of people are in favor of keeping the death penalty. In September, the Korea Gallup polled adult men and women about the death penalty and found that about 79% were in favor of keeping it in place. When it comes to the actual execution of heinous criminals, 78% agree. In countries like China and Japan, which also retain the death penalty, more than 80% of people are in favor of keeping it. Even in France, a country that has already abolished the death penalty, a Figaro poll conducted the day before the abolition was passed into law showed 62% in favor of retaining the death penalty.
The death penalty is a promise among society’s members to punish those who commit crimes, and it cannot be abolished if the public, or society in general, opposes its abolition, and if it has been declared unconstitutional by the Constitutional Court. The reason why the public is in favor of maintaining the death penalty is that it has created a paradigm that the death penalty is necessary for heinous crimes such as murder. From a social contract perspective, laws are created by contracts between people, and people are obligated to honor them. In a country with the death penalty, criminals who commit crimes that are potentially punishable by death are more likely to do so knowing that they will be punished.
Some argue that the death penalty deters crime. However, the argument that retaining the death penalty reduces crime rates is refuted by the fact that countries that have not abolished the death penalty do not have lower crime rates. It’s important to note, however, that most developed countries, or at least developed urban countries, have abolished the death penalty, and it may be unfair to compare these countries with low crime rates to countries that retain the death penalty. In order to claim that the death penalty does or does not actually deter crime, it is necessary to conduct empirical research on the relationship between population distribution, population growth, and crime among countries or regions that have abolished or retained the death penalty, but this can lead to an “earring for the ear, nose for the nose” type of result depending on the position of the research organization, and it is difficult to obtain objective and reliable results on whether the death penalty deterred crime. However, in South Korea, murder has been on the rise, albeit in small amounts, and the recent spate of heinous crimes has given rise to a growing number of arguments that the death penalty should be retained even in the face of this rising crime rate. Just a few months ago, in August 2012, there was a murder in Junggok-dong, Gwangjin-gu, Seoul, where the killer had 12 prior criminal convictions and three sexual assault convictions, and the public opinion is that it is not right to give these criminals a chance for leniency.
In addition, maintaining the death penalty not only serves as a deterrent to criminals, but also as a reassurance to the rest of society. As mentioned earlier, a majority of South Koreans are in favor of maintaining the death penalty, and most of them believe that it contributes to reducing crime rates. It also serves as an outlet for anger and grief for victims and those close to the executed. Of course, courts are not institutions of private sanction or revenge, so this is not a fundamental reason to retain the death penalty, but it is one rationale.
Human life is a value that trumps all others. Nevertheless, terrorism, mass and serial killings, drug trafficking, infant rape and sexual assault, and other heinous crimes occur. If such criminals are not punished with the maximum penalty, if people like a brutal serial killer who has taken dozens of other lives are not even sentenced to death, even if it is not executed, the fact that they are not properly punished despite the countless lives lost due to such heinous crimes will lead to a culture of disregard for life among people and a widespread distrust of the government and the legal system. Therefore, for the sake of social justice, the death penalty must be retained.