Old Wine in New Wineskins? A Trial of Restorative Justice in a Korean Criminal Court, Won Kyung Chang

Restorative justice is a relatively new and foreign concept in most parts of Asia. In contrast to the traditional emphasis on punishment and retribution in criminal cases, restorative justice seeks to repair harm caused by the criminal behavior by facilitating communications and restoring trust between the victims and offenders of a crime.

The idea of restorative justice was first introduced into the fields of criminal law and justice policy studies in Korea in the early 2°°°s. It was initially discussed largely in the context of “victim protection.” As the inquisitorial system gradually transitioned to a trial-centred adversarial system with the r954 enactment of the Criminal Procedure Act of Korea and its subsequent amendments, several steps were institutionalized to ensure the rights of sus­pects and defendants under criminal justice processes. Until the 199°s, however, the protection of victims' rights had hardly come into the purview of criminal justice policy. As the concept of restorative justice was first introduced to Korea, at a time when the necessity of victim protection was just beginning to be discussed in academia, restorative justice was mainly recognized in terms of victims' security and compensation for damages.

Along with such theoretical discussions, since the mid-2°°°s, criminal justice policy-makers have extensively redirected existing diversion pro­grammes by adding some elements of restorative justice - such as apology or compensation to victims and the participation of community members.

Most of these programmes, however, contained only minimal elements of addressing the harm caused by crime or allowing participation of victims and/ or community members. Only three reflected the essential elements of restorative justice - namely an informal process of face-to-face discussion among parties most directly involved in a particular offence: (1) the family group conference applied to juvenile cases during the investigation phase, (2) the compromise recommendation introduced in juvenile courts at trial, and (3) the criminal mediation conducted in criminal cases before a prosecutor's decision to indict. [...]

The pilot project implemented at the Bucheon Branch Court of Incheon District Court was an attempt to overcome such limitations of existing restora­tive justice programmes and to conceive how to harmonize the present retributive and adversarial process into restorative justice principles. Several judges, including the chief judge of Bucheon Branch Court, shared recogni­tion that the current criminal justice procedure is optimized for investigating evidence through legitimate steps and punishing the accused based on the principle of responsibility, but fails to respect victims and offenders in the process and to help the recovery of trust between parties. These judges presented the future direction of the criminal justice system as moving from judgment towards healing, and suggested that restorative justice could help to construct a better society by addressing individual needs and respecting individuals on their own terms.

In order to test the suitability of restorative justice practice in Korean criminal trials and to unearth any practical obstacles against such implemen­tation, the Bucheon Branch Court carried out this pilot project from August to December 20r3. The principles of restorative justice were applied to serious adult violence and/or property cases during criminal trials for the first time in Korea.[...]

This pilot project, which was originally designed to measure the institu­tional feasibility of implementing restorative justice within the Korean crim­inal justice system, was instead confronted with the fundamental question of restorative justice - whether people truly prefer face-to-face meetings to the impersonal and structured process of criminal justice procedure. The parties in this pilot project might have previously learned concepts of crime and punishment based on individual responsibility and proportional deservedness through formal or informal legal education and relevant experience. Thus, to them, except for the parties in one case (Case #3 [Car accident]), it was an impossible mission to understand this strange idea of restorative justice and to follow an unfamiliar way of communicating with other parties, as this process requires.

The judge in charge of this pilot project illustrated the general characteris­tics of victims after they were informed about the restorative justice option at trial:

In the case of most victims, they wanted damage recovery, but the only way they were familiar with was submitting petitions in criminal trials and receiving compensation through a separate civil suit. Since they had never seen or heard of any further damage recovery other than monetary compensation, it was quite difficult for them to understand that more practical and sincere damage recovery would be possible through conver­sation with the defendants, with help from professionals. In particular, victims who suffered severely because their damage became compounded for as long as they failed to receive any damage recovery from the defend­ants were hurt by or feared the idea of confronting the defendant with optimistic expectations.

The cases in this pilot project show how rigid the parties', especially the victims', ideas of crime, retribution, and punishment are, and how challen­ging it can be to encourage the parties to transition their reactions to restora­tive justice. In some cases, parties agreed to the referral to restorative justice, in order to avoid any disadvantage that they feared might be caused by their refusal. In others, the victims participated with doubts and distrust towards the judicial system, suspecting that the restorative justice process only serves the interests of the defendant. In yet others, the victims tried to control the whole process by using their higher structural position as a “victim” to demand excessive requests compared to other similar cases. In others, the victims revealed their overall tendency to desire the formal criminal process and its outcomes. As such, the parties in this pilot project did not act in accordance with the manner predicted by restorative justice theory.

This result is itself unsurprising, because it would be almost impossible for the parties to change their response to the crime after listening to a brief introduction of restorative justice for the first time in their lives, even though guided through it by restorative justice professionals. Despite the Bucheon Branch Court's efforts to promote social consensus on restorative justice in the local community - necessary in order to successfully run this pilot project and achieve its goals - it seemed unable to reach the actual targets of the project, namely victims and defendants of pending criminal cases. Furthermore, from the perspective of victims, the process of requesting their participation to an additional procedure of restorative justice happened abruptly, without any prior notification, in a court hearing where the victims were summoned as ex efficio sentencing witnesses. If time had been taken to distribute information about this restorative justice project to parties during the criminal justice procedure before asking their intent to participate, or if an educational session about restorative justice had been provided to parties after their decision to participate, the parties' understanding of restorative justice would likely have been enhanced and their attitudes somewhat changed.

On the other hand, even if they had been fully informed over a consider­able period of time, it is still uncertain whether they would rather choose this ancient solution to crime rather than the institutionalized system of modern criminal process. In Korea, from the beginning of the 1990s, it has been seen that people depend on the judicial system heavily to resolve their everyday trivial disputes and even misuse the system as a tool to threaten other parties. This tendency that pervades all of society has even spurred the coining of new words like “judicialism” or “judicial omnipotence.” Furthermore, in this project, the parties' reliance on the judicial system appeared in most cases by comparing the clear offer suggested by the other party in restorative justice to the unclear outcome that could be obtained through the formal judicial process. In addition, the representative of Nonviolence Peaceforce Corea who led the restorative justice process of Case #9 [Rob thy neighbour] complained that “the defendants kept asking the restorative justice facilitator for legal advice,” even though he told them in advance that the facilitator is a neutral coordinator who does not give any such advice.

Illuminating this current situation in Korea, it becomes apparent that an official adoption of restorative justice in adult criminal cases in the trial-and- sentencing phase merely on the basis of its laudable humanist promises runs the real risk of producing yet another restorative justice programme in name only. The introduction of this government-oriented programme will become just one additional pathway for processing a defendant based on a judge's suggestion, or it will simply institutionalize the existing informal practice of reflecting the agreement between victim and defendant in a judge's senten­cing decision. In addition, most of the parties participating in the restorative justice practices will apply the same communication methods and litigation strategies as they used in the conventional criminal procedure, including condemning, criticizing, manipulating, and retaliating against their legal adversaries, as well as maximizing their own interests.

In order to defend a future restorative justice programme from similar criticisms of being far from the original idea of restorative justice, it must be preceded by changes in people's reactions to and feelings about crime, the criminal justice system, and punishment. Judging from the mixed results of this pilot programme, a hasty introduction of restorative justice at trial will produce a situation where the success of restorative justice in cases will be determined by chance - each party's individual characteristics, psychological status, and realistic circumstances, their attorneys' assessment of legal matters and attitudes toward the other parties, and the restorative justice professionals' style of leading the conversation, etc. Thus, the introduction of restorative justice at trial should not be understood as merely a new kind of diversion programme, but should be viewed as an entire shift of people's values vis-a-vis their own lives, human relations, and community.