April 4, 2022
SEOUL – Amid nationwide concern about the rising juvenile crimes, President-elect Yoon Suk-yeol and his transition team have been studying ways to reduce the minimum age of criminal responsibility from 14 to 12.
The Ministry of Justice officials met with the presidential transition committee chief last week, vowing to support the process of changing the legal definition of a “criminal minor,” referring to the age below which children are immune from punishment for crimes. Chapter II, Article Nine of the Criminal Act currently defines it as those under the age 14.
The two parties did not yet discuss the details such as the specific age or plans to solicit public opinions on the matter during the meeting. Lowering criminal age of liability was one of campaign pledges of Yoon who is to be officially inaugurated as the 20th president of the country on May 10.
Recent data have suggested that crimes committed by criminal minors have been on the rise.
On March 31, Rep. Kim Hoi-jae of the ruling Democratic Party of Korea revealed that 35,390 people under the age of 14 have been accused of violent crimes from 2017-2021. This included 10,199 cases of battery, 1,913 sex crimes, 47 cases of robbery and nine cases of murder.
The number for 2021 was 8,374, marking a 34.8 percent increase from 2017.
“Underage crimes have grown crueler and more violent in recent years. The minimum age of criminal liability should be reduced, and there should be an exception on imposing criminal punishments on minors who cannot be reformed with mere protective detention,” Rep. Kim said, referring to the law stipulating that offenders younger than 14 should be sent to youth detention centers for up to two years, rather than be subject to criminal law.
Legal minors aged 14 and up can be punished by the criminal law, but with different standards to adults.
Rep. Kim is currently pushing for a bill that would reduce that age to 13, and allow criminal charges for repeat underage offenders who have been sent to detention centers three or more times. This, along with Yoon’s pledge, was a reaction to a nationwide fury against news about violent juvenile crimes.
These lead to the question: should the young go unpunished for even the most heinous crimes?
Crime and non-punishment
The increase in crimes by “criminal minors” contrasts with a decrease in crimes by those caught between the different definitions of a minor or those aged 14-18, which went from 84,026 in 2017 to 55,846 in 2021.
In July 2018, a middle-school girl committed suicide after being raped by two middle school boys five months earlier. Both offenders and the victim were 13-year-olds, and the two went unpunished by the criminal law. This incident sparked massive outrage across the state. Over 230,000 people signed a petition that called on strengthening punitive actions against criminal minors.
In January of 2021, a video of young students who assaulted and verbally abused senior citizens for fun went viral. It showed one of them taunting a man in his 70s by saying, “Hit me, you (expletive). You can’t.” The offenders — revealed to be first-year middle school students — later were reported to be unpunished.
The public’s interest in juvenile crime led to the launch of the Netflix series “Juvenile Justice,” starring Kim Hye-soo as a judge assigned to administering punishment to criminal minors.
“I heard that if you’re not 14 yet, you don’t go to prison, even for murder. Is that true? Awesome,” says a 13-year-old boy in the series, after committing murder on an elementary school student. The line is fictional, but there have been nine real-life murders in the past five years committed by those legally defined as “children,” and who went unpunished because there are no legal grounds to do so.
There is a suspicion that the lack of punitive action against minors is behind their higher reoffending rate. According to the Ministry of Justice, 12 percent of underage offenders became repeat criminals in 2021, compared to 4.5 percent for adults.
The age of criminal responsibility was set in 1958, when the Juvenile Act was first enacted. The act also defined 12 as the minimum age for punishment, referring to protective detention. It was lowered to 10 in a 2007 revision of the act. But the minimum age for imposing criminal punishment has stood at 14 for the past 64 years.
A National Assembly Research Service report by Kim Seong-don states that the initial age of 14 is thought to be modeled after the juvenile and criminal acts in Japan, based on the fact that it was enacted just years after the Korean War and without sufficient manpower and infrastructure for research. Japan has also set 14 as the minimum age for criminal punishment as of today.
However, it was not without controversy back then. The report quoted Paik Nam-sik, a member of the parliament when the Criminal Act was enacted in 1953, as suggesting that offenders 13 should be subject to criminal punishment.
“Many cases of pickpockets are done by 12-, 13-, mostly 14-year-olds. So I believe if we set the age (of legal immunity) to 14, it would lead to an increase in such crimes,” he said, on why he believed the minimum age punishable by law should be 13, not 14.
Over the years, many have voiced concern that this was an outdated law.
“Fourteen-year-olds back then (when the act was first enacted) and today are very different,” said former presidential candidate Ahn Cheol-soo, who echoed Yoon’s call to lower the age to 12. “Nowadays, teenagers are physically and mentally not very different from adults, and (crimes) by teens are often as cruel as those by adults. We need to address this on the state level.”
The ruling Democratic Party’s presidential candidate Lee Jae-myung also vowed to lower the age for criminal minors, although he did not elaborate exactly what age he thought was appropriate.
Should it be lowered?
In September 2003, the Constitutional Court of Korea ruled the state’s current age of defining criminal minors as under 14 was constitutional, saying that it “cannot be said that this age (under 14) is excessively low compared to other countries.”
There is no international standard as to what the minimum age for legal liability should be: it can be young as seven in states like the United Arab Emirates and as high as 18 like in Luxembourg. The minimum age for federal crimes in the US is 11, but 33 of its states have no such standard for state crimes. Other states range from 6 in North Carolina to 12 in Massachusetts.
Countries like New Zealand respond by applying differing standards in accordance with the crime, such as age 10 for murder or manslaughter. Other countries like Angola apply reduced sentences for younger age groups.
In fact, the United Kingdom is currently undergoing a controversy completely opposite to that of South Korea, with debates on whether or not to raise its minimum age for criminal punishment. According to The Guardian, England and Wales can punish children as young as 10, which is unlike any country in the European Union.
While leading candidates of the presidential campaign vowed to lower the age for criminal minors, Sim Sang-jung of the minor opposition Justice Party actually opposed the idea, saying enforcing harsher punishment was not the solution.
Lawyer Kim Su-hyeon, a public defender for underage offenders at the Seoul Family Court, said in a recent radio interview that there is no scientific proof to standardize what age the (limit) should be. She said even if the country did decide to push through with the process, there should be sufficient discussion and research on the specific situation in Korea.
“If (Korea) does lower the age, there is still the issue of how to hand out punishments to the underage offenders. I believe that issuing fines or suspended prison terms has little effect on teenage offenders,” she was quoted as saying.
Kim and other legal experts have suggested that imposing criminal punishment like a suspended prison term against criminal minors would have less preventive effects than protective detention, which would completely remove the offenders from society for a certain period.
In the aforementioned NARS report, Kim pointed out that Korea, by setting the minimum age for protective detention to 10, has effectively lowered the minimum age for legal liability. He said those who fall under the criminal minor category and escape a criminal sentence are still subject to a form of punishment.
“Rather than using a method of criminal punishment to address social anxiety sparked by 12- or 13-year-olds and removing the antisocial nature of the subject, using protective detention would not only be a faithful application of the idea behind the Juvenile Act, but also be more effective in terms of criminal policy,” he wrote.
“Of course, expanding the methods of protective detentions — for example, enhanced means of protective custody — should accompany this approach. In short, the approach should be to diversify the form of protective detention, rather than to imply criminal punishment.”