What is All This About "Blood Money"?

Dear Korean,

I heard that in Korea, victims of crime are bribed with "blood money" instead of having their cases heard by the court. How can Korea let this injustice to continue? Why is Korea such a backward country with no sense of justice?

MuQ

For this question, the Korean is stealing the feature from Ask a Filipino! by setting up a question from "MuQ", i.e. "Made-up Questioner." (It's pronounced like "muck," rhymes with "luck.") The reason why the Korean does is twofold: one, because people who like to talk about "blood money" in Korea are so ignorant that they won't even ask a question about this, and; two, because the Korean is fucking sick and tired of this stupid misinformation, and wants to set the record straight once and for all.

Let us start with a hypothetical. Suppose person A punched person B and caused injury. The police comes and arrests A. What happens next is pretty significantly different depending on whether you are in the U.S. or in Korea.

In the U.S., there are two separate avenues through which A is punished -- A can be charged by the district attorney (a prosecutor), go through the criminal justice process in the court, and either go to jail or pay a fine to the government. Separately, B can sue A in the civil court for battery, and get compensation from A. Importantly, what B decides to do in the civil court, theoretically, does not affect what the district attorney does to A in the criminal court.

In Korea, the two processes interact closely. Almost immediately after arrest and police investigation, the police asks B if he wants to settle the case. If B accepts the settlement and gets paid settlement money, the prosecutor (for the most part) does not pursue criminal charges against A. This settlement money is what is often decried as "blood money," particularly among expats in Korea.

More after the jump.

Got a question or a comment for the Korean? Email away at askakorean@gmail.com.





Let's get a little more technical. In the world, two of the largest "families" of law are Common Law and Civil Law. Common Law is the legal system used in most English-speaking countries and former English colonies, including England, the U.S., Canada, Australia, New Zealand, India etc. Civil Law is the legal system used in pretty much everywhere else, including the continental Europe, Central and South America, majority of Africa and Asia, etc.

Legal systems of the world. Red is Common Law, and blue is Civil Law.

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There are many differences between Common Law and Civil Law. The relevant difference here is the separation between tort and criminal law. "Tort" is a Common Law term denoting a violation of one person's rights by another. For example, trespassing is a tort because the trespassing person violated the rights of the landowner to keep her land in peace. Unsurprisingly, most crimes are also torts because most crimes involve someone violating the rights of someone else. For example, battery is a crime and a tort at the same time.

Under Common Law -- as explained above -- there is a separation between tort and criminal law. The ability to prosecute a criminal case totally belongs to the government. (If you watched a lot of Law and Order, this is what is often referred to as "absolute prosecutorial discretion.") Let's go back to the above example. Suppose, for some reason (say, because A paid B a lot of money,) B does not want A to go to jail. But B's intention never matters in the Common Law criminal justice system; the prosecutor can still choose to prosecute A and put A in jail if she wants to.

A good example that shows this separation is the O.J. Simpson case. As famously known, O.J. Simpson was found innocent by the court of law under the criminal charges of murdering his wife. But at the same time, Simpson was held liable for the tort claim of wrongful death brought by the surviving families of his wife, and was ordered to pay $33.5 million in compensation.

Here is the point where Civil Law, and specifically Korean law, differs from Common Law. Under Civil Law, there is no separate category called "tort law." Instead, broadly speaking, torts against properties fall under the civil law (notice the lower cases,) and torts against persons fall under the criminal law. And instead of having a totally separate process of compensating for tort against persons, the criminal justice system also takes charge of compensating the victim for the tort.

Now, here is an issue -- if the prosecutor in the Civil Law criminal justice system had absolute prosecutorial discretion like her counterpart in the Common Law criminal justice system, the victim of the crime/tort would have no say in handling the event that affected him first and foremost. That seems unjust. So Civil Law's solution is to designate certain crimes as "private crimes" -- crimes which require the consent of the victim in one form or another before the prosecutor can proceed with the criminal charges.

In Korean law, there are two forms of private crimes -- direct-action crimes [친고죄] and no-prosecution-contrary-to-intent crimes [반의사불벌죄]. (The translations are the Korean's own and not official.) The difference between the two is that the direct-action crimes require the victim to actively ask the prosecutor to pursue the charges. These include rape, defamation, libel/slander, etc. In contrast, the prosecutor may pursue no-prosecution-contrary-to-intent crimes on her own, as long as the victim does not express the wish to stop the prosecution. Such crimes include battery, extortion, negligent driving, writing false check, etc. The difference is legally meaningful, but in practice, they operate in a pretty similar manner. (Note: except for rape, the most serious crimes (e.g. homicide) are not categorized as private crimes.)

So let us go back to the A and B example one more time, and suppose they are in Korea. A committed a battery against B by punching B and causing injury. B now has a huge leverage over A. Suppose all B wants to do is to get the money for medical care and move on with his life, because B's injuries are not too serious. Then B can offer that possibility to A: "pay me, and you don't go to jail because I will tell the police/prosecutor not to prosecute." And indeed, that is what ends up happening for most private crimes in Korea -- A compensates B for the injuries he caused, and the criminal case against A stops. This makes sense because most crimes are petty, and the victim is usually content to get paid and move on.

Important thing to note is that there is absolutely no obligation for B to enter into a settlement. If B wants to make sure that A goes to jail AND pays B for the injuries, B can continue to have the police and the prosecutor press criminal charges. But there may be practical considerations as to why B might prefer a settlement over continuing to press charges. With the settlement, the payment of the money is certain and prompt. Once the case goes through prosecution and trial, B must utterly rely on the prosecutor to win the case for him. The criminal justice process also takes time, and there is always some level of uncertainty as to whether A will actually be convicted, or how much fine the judge would assess on A. The police in Korea is also known to strongly encourage settlement on what it deems to be a minor case, as a means to reduce the workload.

But these kinds of practical consideration are hardly unseemly; in fact, they are nearly universal in all criminal justice systems in the world. For example, in the U.S. (unlike in Korea,) the prosecutor is allowed to bargain prison sentences with a criminal defendant in exchange for a voluntary admission of guilt. (This is known as plea bargaining.) In this kind of situation, the defendant is also totally free to reject the plea offer, but also faces the same kind of practical considerations that steer her toward accepting the plea bargain. Even if the defendant might think she is completely innocent, she might agree to a bargained sentence of 6 years in prison if the prosecutor threatens with a charge that comes with 18 years in prison. The prosecutor also has reasons to favor plea bargaining, as it ends the case quickly and reduces workload. Consequently, overwhelming majority (90 percent) of criminal cases in America ends in a plea deal.

The Korean can see how someone who only knows the Common Law system might consider the Civil Law criminal settlement to be "blood money," "bribe" or "extortion." If the criminal process is totally separate from the civil process, it seems illegitimate for a civil defendant to affect the criminal process against him. But under Civil Law (notice the upper cases,) this is not only completely legitimate, but also has significant advantages over the Common Law system. The biggest advantage is that under this system, the victims of a crime get compensated very, very quickly without spending any money on lawyers or burdening the justice system.

Here is a real life example. In the winter of 2009, the Korean was victimized by a criminal. He was driving home from work late at night, and this drunk person came up to the Korean's car, stopped at the red light, and began randomly kicking the car. The Korean called the police, and the criminal was arrested. The Korean followed him to the police station to give a witness statement. The Korean's car suffered several dents on the door.

Now, if this were in Korea, this is what would have happened. Damaging a property through disorderly conduct is a private crime. The Korean can choose to stop the criminal charges against the car-kicker in exchange for getting paid enough to fix the car. The Korean really does not care if the car-kicker goes to jail or not. In fact, if the Korean had to choose, he would prefer having the car-kicker pay the cost of fixing the car over having him go to jail. So the Korean would have expressed that to the police officer. The police officer would then hold the case until the Korean confirms the payment by the car-kicker, who would be given usually a few weeks to come up with the money. A few weeks later, the Korean is paid, the car-kicker gets his just desserts for being drunk and stupid, and the police drops the case. It never reaches the prosecutor or the court, and the Korean never spends any money out of pocket.

Theoretically, this is how it plays out in the U.S. The Korean has zero power over the criminal process -- he is merely a witness to a crime. The prosecutor (Manhattan D.A. in this case) has all the power to pursue the criminal charges. If the Korean wants to get paid from the car-kicker, he needs to retain a lawyer and file a civil action against the car-kicker, for the tort of trespass against property. It will be at least several months, and likely more than a year, along with several court appearances, before the Korean gets his money. After paying his lawyer (who would charge at least $100 an hour or work at a contingency fee basis to take a chunk of the Korean's recovery,) the Korean would be lucky to get the money for half of the cost to fix his car, which carried the ugly dents the whole time. (Forget for a moment that the Korean is himself a lawyer and would probably represent himself.)

The following is what actually ended up happening, which is hugely illuminating. In order to avoid the scenario outlined above, most American D.A.'s offices coordinate with the victim and drop the charges or significantly lower the sentence as long as the proper restitution is paid to the victim -- just like Korea. The case went to the Manhattan D.A.'s office, who told the Korean that the car-kicker agreed to pay the restitution and the D.A. would give him a lower sentence. It still took several months before the case progresses through the D.A.'s office and the court. Under the plea agreement with the D.A.'s office, the car-kicker received the sentence of community service and restitution to the Korean. The car-kicker paid restitution to the New York City bureaucracy, which promptly lost the paperwork. After dozens of haranguing phone calls to the appropriate department in the NYC and the Manhattan D.A.'s office, the Korean was told LAST WEEK -- a little less than a year and a half after the crime -- that the restitution check is on the way. (And the Korean should consider himself lucky, because he used to work for a different D.A.'s office and knows how the process works. Who knows what happened if the Korean was just a regular person?)

Moral of the story? Common Law system actually tries to mimic the advantages of what is denounced as "blood money," and it is not even very good at doing that because inherently, a criminal case in the Common Law system must be shepherded by the prosecutor and the government. In contrast, the "private crimes" system in the Civil Law is fast, gives a definite resolution, and only minimally involves the government.

But like any system, this is not without flaws. Probably the biggest flaw is that often, a victim of a crime cannot properly assess the extent of her loss through the crime. If a person is beat up, the person might suffer a lingering damage that does not flare up until the settlement amount was computed. Also, sometimes it is not the victim herself who enters into the settlement. This used to lead to an incredibly outrageous situation in case of child molestation. As noted above, rape is a private crime. (-EDIT- As of June 2013, rape is no longer a private crime.) Since a child does not have the legal decision-making authority, the parents would handle the private crime process. And often, a molested child would come from a broken home, in which the parent would rather take a lump sum of cash right away rather than ensuring that the child rapist would go to jail. (Fortunately, this situation was redressed in 2008 by a new law that made child molestation a public crime.) Also, the inclusion of rape as a private crime is roundly criticized by many legal scholars, as it puts a burden on the victim to pursue what is a very serious crime that significantly threatens the social order. (To be sure, rape with battery, i.e. a violent case of rape, is a public crime. But, for example, a date rape involving drugs is a private crime.)

So here is the short summary of what is mistakenly known as "blood money": it is a type of settlement payment that stops the progress of a criminal charge, a common device in the Civil Law systems whose advantages the Common Law systems attempt to replicate, albeit poorly. If that is all you wanted to know, you can stop reading now.

But that is not the Korean's final word about this "blood money" shit. The whole reason why the Korean wrote this post in the first place is because he is so FUCKING SICK AND TIRED OF IGNORANT, COMPLAINING EXPATS IN KOREA. That's right, the Korean said it. That is not to say that all expats are ignorant, nor is it to say all expat complaints are illegitimate kvetching. A significant percentage of the questions directed to the Korean are from expats in Korea, and the Korean finds the overwhelming majority of them to be polite, respectful and genuinely curious about Korea. But there is no denying that a significant proportion of (current and former) expats spend their lodging ignorant complaints about Korea, enough for the Korean and Roboseyo to have a joint two-part series that are still one of the most read posts on AAK!

For THAT kind of expats, this so-called "blood money" is a favorite garbage to spew over K-blogosphere. A few choice samples:

I honestly have a real problem with money as a form of compensation in almost all situations. Especially the Korean idea of "blood money". It's shallow and has no place in a supposed "first world country" who's aspiration is to become a legitimate democracy.

(Source)

[Concerning Korean teenagers charged with rape in Canada] Thos [sic] Korean guys are going to wish they’d stayed in Korea. If convicted, their lives are over! Here in Korea, they could pay “blood money” and take care of most of their headaches. No such luck in Canada.

(Source)

[Concerning a judge who gave a jail sentence because criminal settlement was not reached] The logic of the trial judge seems to be a fine example of K-Logic. [Linked to here, a blog post mocking Korea for its apparent inability to hold a logical thought.]

(Source)

And this so-called "blood money" issue is so great because it clearly shows everything obnoxious about THAT kind of expats. Really, just take a step back and look at how ignorantly myopic this is. People who call a criminal settlement "blood money" have no idea about the difference between the Common Law and the Civil Law. Nor do they have any idea that the most number of people and nations of the world (by a large margin) subscribe to Civil Law, not Common Law. Nor do they have any idea that the concept of "private crimes" dates back to the Napoleonic Code and its origins are evident in the laws of the Ancient Rome, not in the traditions of Korea. Nor do they have any idea that the administrative advantages of what they derisively call "blood money" is so great that even Common Law systems like the U.S. attempts to copy the concept in practice. Nor do they have any idea that the plea bargaining in American criminal justice system operates in exactly the same way (i.e. bargaining criminal sentences, often in consultation with the victim in practice,) and in some cases creates much more odious injustice.

None of this matters for THAT kind of expats. For THAT kind of expats, the only justice in the world is their style of justice. (Never mind that Common Law style of criminal justice seeks to emulate the advantages of Civil Law criminal justice!) Anything that does not fit with what they know is considered a "bribe," "extortion," "blood money," and Korea is an illogical, backward country for having the kind of system that the majority of the world has.

The worst part is, THAT kind of expats have no idea that they have no idea. This is really the worst part. It is ok to not know something; no one knows everything. But it is not ok to think you know something, when in fact you actually don't know anything. It is most definitely not ok to denounce that something, and go onto tarnish the entire country and people based on that something, when you don't know anything about that something. This "blood money" meme has been circulating around K-blogosphere as long as the Korean could remember. So far in more than four years, the Korean received literally thousands of questions. The number of questions about "blood money"? Zero.

Is it possible to constructively criticize the private crime system in Korea? Of course. The Korean himself is an America-trained attorney, and he is not entirely happy with Korea's formulation of private crimes. Specifically, he thinks more serious crimes should be excluded from private crimes, and the system of criminal settlement should be more consistent and transparent. He makes this criticism to every Korean attorney he knows. But has the Korean ever seen this type of discussion about Korea's criminal justice system in K-blogosphere? Not a chance.

So here is the Korean's final word on this whole thing. If something in a different culture does not make sense to you, it is highly likely that you do not know the full context. Please have this faith in your heart -- people from Korea (or any other country for that matter) are reasonable people who do things for a good reason and not out of stupidity, backwardness or being illogical. If you knew the whole story, you would understand that good reason. And if you don't know the whole story, the only purpose for which to open your mouth should be to ask questions. Really, it is not like you don't know who to ask. Either ask questions, or shut up and learn. Don't be THAT kind of person.

Got a question or a comment for the Korean? Email away at askakorean@gmail.com.