Blog, Criminal

On October 29th, 2022, the popular clubbing district of Itaewon located in Seoul experienced a crowd crush that claimed the lives of 159 people and injured 196 others. Witnesses and survivors have claimed that there were few police officers on the streets that night, forcing civilians to aid in rescue and recovery. And while law enforcement has admitted to shortcomings in their response, the discussion on where to place the blame is ongoing.

Apart from determining who may be responsible for the Itaewon Crowd Crush, there is also the question of compensation for the families of the victims. The legal process to determine compensation is likely to take years, given the time required for a full investigation, prosecution review, as well as court proceedings.

Who Is Legally Responsible For The Itaewon Crowd Crush?

The tragic Itaewon incident begs numerous important questions: who is responsible for preventing safety accidents? How can victims be properly compensated? We will explore these conversations in further detail by providing relevant information below.

1. Criminal Charges against the Crowd That Pushed

During the investigation of a crowd crush, it can often be difficult for police to determine who is responsible. Some may feel that local businesses and security contributed by narrowing the alley where the incident took place, as well as blocking the entrance to nearby stores as a refuge, while others feel place blame on local officials and police.

The Seoul Metropolitan Police Agency had been looking into citizens who may have intentionally encouraged the crowd to push forward, resulting in the fatal fall. This comes following numerous testimonies that several people in the crowd were encouraging others to push forward. But in the end, the police released the person suspected of being the culprit, and were unable to find any other culprits.

Since the police couldn’t arrest the culprit, the case ended for now. However, there has been a debate about whether the culprit could have been legally punished if they had been arrested.

If the perpetrator pushed the crowd, and people got injured and even died because of that push, the perpetrator may be punished for “injury by negligence (과실치상)” and “death by negligence (과실치사).” Even if the perpetrator didn’t know their action would cause death and injury, they should have known that people might get injured or die if be pushed in such a narrow slope, which means they committed “negligence (과실).”

If the perpetrator KNEW that their push would cause death and injury, then they might even be punished for “murder” by “willful negligence (미필적 고의).” Willful negligence means that, not exactly intending a certain result, but recognizing and allowing the possibility that the result might occur. So, even if the perpetrator did not push with the intention that “I want to kill these people,” if they pushed with the thought that “Huh, people might die if I push. But I don’t care if they die, so I’ll still push” then it is a murder by willful negligence.

But there are also opinions that the perpetrator cannot be punished even if they pushed the crowd. The alley where the disaster occurred was only 3.2 meters wide with a slope of 10%, while about a hundred thousand people were congested in that narrow alley. When the crowd is so severely dense, humans cannot make rational decisions and just move according to their instincts. Therefore, pushing other people in that circumstance is only an act according to human instinct, not an act to harm others. According to this opinion, this incident is a simple tragedy caused by too many people crammed into a small space, not a crime to blame on one or two people.

2. Compensation from the Government

The government has decided to provide 20 million won (around 14,010 USD) to the families of each victim and up to 15 million won in financial aid to cover funeral expenses. Survivors will also be given compensation ranging from 5 to 10 million won, depending on the seriousness of the injuries they sustained. This payment is the same for Korean nationals and foreign victims alike. But this is only condolence money paid by the government, not state compensation.

Families of victims are attempting to take a class action against the South Korean government for state compensation, including the families of foreigners who accounted for 26 of the victims, hailing from 14 different countries. The provision on which the claim is based is Article 2 of the State Compensation Act (국가배상법).

State Compensation Act, Article 2 (Compensation Liability)

(1) Where public officials or private persons entrusted with public duties (hereinafter referred to as “public officials”) inflict damage on other persons by intention or negligence in performing their official duties, in violation of the statutes, or where they are liable to compensate for damage under the Compulsory Motor Vehicle Liability Security Act, the State or local governments shall compensate for such damage pursuant to this Act: Provided, That where military personnel, civilian employees of the military, police officials, or reserve forces are killed or injured in the course of performing their duties in relation to any combat, training, etc., they or their bereaved family shall not claim damages under this Act and the Civil Act, if they may receive compensation, such as disaster compensation, pension for the bereaved family, disability pension, under other statutes.

(2) In cases falling under the main sentence of paragraph (1), if such damage has been caused by intention or gross negligence of a public official, the State or local governments may demand reimbursement to the relevant public official.

According to Article 2(1), the following conditions must be met for state compensation:

• public officials (or private persons entrusted with public duties)
• inflict damage on other persons
• by intention or negligence
• while performing their official duties
• in violation of the statutes

When these conditions are met, the government becomes liable for the damage caused.

One of the statutes that might be considered to have been “violated” by public officials is the Framework Act on the Management of Disasters and Safety (재난 및 안전관리 기본법), Article 20 and Article 25-2.

Article 20 (Reporting on Disaster Situation)

(1) Where any disaster occurs, or is likely to occur, in an area or facilities or with regard to affairs under the relevant jurisdiction, the head of a Si/Gun/Gu, the chief of a fire station, the chief a coast guard station, the head of a disaster management agency referred to in subparagraph 5 (b) of Article 3, or the head of an institution or organization that manages the national core infrastructure (hereinafter referred to as “the head of a management institution”) referred to in Article 26 (1) shall immediately report the details of the situation of the relevant disaster and without delay report emergency measures taken and the management thereof, respectively, to the Minister of the Interior and Safety, the head of the relevant disaster management supervision agency, and the relevant Mayor/Do Governor, as prescribed by Presidential Decree. In such cases, the head of the relevant disaster management supervision agency and the relevant Mayor/Do Governor shall notify the Minister of the Interior and Safety of the matters reported after confirming and compiling them. 

(2) Deleted. 

(3) Deleted.

(4) Where any disaster occurs or the head of a Si/Gun/Gu, the chief of a fire station, the chief of a coast guard station, the head of a disaster management agency referred to in subparagraph 5 (b) of Article 3, or the head of a management institution is reported or notified of the occurrence of a disaster, he/she shall immediately notify the head of the relevant disaster management agency thereof.

(5) Deleted. 

Article 25-2 (Disaster Preventive Measures by Heads of Disaster Management Agencies)

(1) The head of any disaster management agency shall take the following measures to prevent the occurrence of disasters in the field of his/her competent duties:

1. 1. 1. Formation and arrangement of the systems to respond to disasters;
      2. Prediction of disasters and establishment of a system for providing and using predicted information, etc.;
      3. Education and training in preparation for disasters, and publicity on disaster management and prevention;
      4. Establishment of safety management systems and enactment of safety management regulations for fields with a high risk of disasters;
      5. Management of national core infrastructure, etc. designated under Article 26;
      6. Measures for areas subject to special management under Article 27 (2);
      7. Inspection and management of disaster prevention facilities under Article 29;

7-2.  Saving of resources for disaster management and designation of equipment, facilities, and human resources under Article 34;

1. 1. 8. Other matters deemed necessary for preventing disasters.

(2) The head of any disaster management agency shall secure funds necessary to efficiently take disaster preventive measures prescribed in paragraph (1).

(3) The head of any disaster management agency may request the head of any other disaster management agency to cooperate with him/her in preventing any disaster. In such cases, the head of any other disaster management agency in receipt of such request shall comply therewith, unless there is a compelling reason not to do so.

(4) The head of any disaster management agency shall arrange and supplement the safety management systems and the safety management regulations referred to in paragraph (1) 4 to ensure the effectiveness of disaster management.

(5) The head of any disaster management agency shall formulate and implement a plan necessary to maintain core functions of the relevant agency in disaster situation (hereinafter referred to as “function continuity plan”).

(6) The Minister of the Interior and Safety may regularly inspect the actual status of implementing the function continuity plans of disaster management agencies and reflect the findings thereof to the evaluation of disaster management systems, etc. conducted pursuant to Article 33-2.

(7) Matters to be included in a function continuity plan and the procedures, etc. for formulating the plan shall be prescribed by Presidential Decree.

The families of the victims may argue that the tragedy occurred because the public officials in Yongsan District Office and Seoul Metropolitan Government failed to comply with the above provisions.

Another statute that might be considered to have been “violated” is Act On The Performance Of Duties By Police Officers (경찰관 직무집행법), Article 5.

Article 5 (Prevention of Occurrence of Danger)

(1) A police officer may take the following measures if natural disasters, incidents, destruction or collapse of artificial structures, traffic accidents, explosion of a dangerous object, appearance of a dangerous animal, chaotic congestion or other dangerous situation, likely to inflict harm on the life or body of people, or grave damage to property, occur:

1. 1. 1. Issuing necessary warning to persons who assemble at the relevant place, persons in charge of an article or interested persons;
      2. Detaining persons likely to be injured or having them find refuge within necessary scope in cases of dire emergency;
      3. Having persons who remain at the relevant place, persons in charge of an article or interested persons take such measures deemed necessary for preventing danger, or taking such measures personally.

(2) Where necessary for conducting a counter-espionage operation or suppressing any disturbance, the chief of a police agency may restrict or prohibit access to, or passage through the area of a counter-espionage operation or important national facilities, such as a police agency and armory.

(3) Where a police officer takes measures under paragraph (1), he or she shall, without delay, report such fact to the chief of the police agency with which he or she is affiliated.

(4) The chief of a police agency who takes measures under paragraph (2) or receives a report under paragraph (3) shall take appropriate measures, such as seeking cooperation from relevant agencies.

The families of the victims may argue that the public officials in the police failed to comply with the above provision. This is possible because 11 emergency calls were made before the incident took place at 10:15 p.m. The first call was placed at 6:34 p.m., although police did not take sufficient measures as a response. 

All of these are only speculations for now, because the investigations to determine the cause of this incident are still ongoing. The subject and scope of liability would be determined based on the results of the investigation.

However, since the lawsuit for state compensation takes a very long time, there is a possibility that the Korean government would take another measure for the victims and the families: enacting a special law only for this case. There have been cases in which special laws have been made for state compensation for large-scale incidents with many deaths. For example, after the Sewol Ferry incident occurred, the government enacted a special law for state compensation for the victims and their families of the incident.

3. Criminal Charges for Government Officials

Regarding this case, it is also an issue of whether the public officials in charge can be punished as a criminal. Yongsan Police Station Chief and a few police officers, Yongsan District Office Chief and a few officials in the district office were indicted with several charges. The trial started around February 8th, 2023.

Their main charge is “injury by occupational negligence (업무상과실치상)” and “death by occupational negligence (업무상과실치사),” based on Article 268 of the Criminal Act.

Article 268 (Death and Injury by Occupational or Gross Negligence)

A person who causes the death or injury of another by occupational or gross negligence, shall be punished by imprisonment for not more than five years or by a fine not exceeding 20 million won.

Another main charge is “Abandonment of Duties (직무유기)” based on Article 122 of the Criminal Act.

Article 122 (Abandonment of Duties)

A public official who refuses to perform his or her duties or abandons his or her duties without justifiable reason shall be punished by imprisonment with or without labor for not more than one year or suspension of qualifications for not more than three years.

They were charged for these crimes because they neglected their duty to prevent this accident before it happened, and even failed to deal with the accident after it happened. They didn’t have any specific plan to prevent the overcrowding event on Halloween, and there were very few police personnel to control the crowd. Even though some 137 police officers had been dispatched to Itaewon, a significant increase from the pre-pandemic years, they were assigned to monitor crimes related to assault or drug use, not to monitor the overcrowding event. 

The special investigation team searched and removed documents from a variety of local police, fire, and subway operator offices. The investigators explored whether police officers at the scene in Itaewon had responded properly and whether the district police’s request for reinforcements had been denied. 

4. Criminal Charges for Distributing Itaewon Content

Representative Hong Seok-joon proposed to punish those who circulate photos and videos of the deceased without their consent. The police are also investigating those who deliberately spread false information, as well as requesting the deletion of footage on social media deemed insensitive or inappropriate. 

According to the Criminal Law, Article 308, a person who defames a dead person by publicly alleging “false fact” can be punished for “Defamation of Dead Person (사자의 명예훼손).” There are already a few people arrested for this crime for defaming the victims of this incident. But there is no law to punish a person who defames a dead person by publicly alleging true facts, or sharing photos and videos of the deceased, which is why Hong Seok-joon proposed to make a new law to punish the people who are doing that.

Following the incident, the Korea Communications Standards Commission (방송통신심의위원회) deleted 56 related posts and blocked 48 posts. Many of these are videos and images of the incident without a warning, while several others are related to the discrimination or belittlement of the victims. On both major domestic and foreign social media platforms, 116 posts were deleted as of early November, 2022 with that number expected to increase. 

5. Illegal Extension Buildings in Itaewon

A pink temporary wall of Itaewon’s Hamilton Hotel has been labeled a potential cause of the disaster. This is because the wall narrows what was once a 4m wide alleyway to 3.2m. Additionally, it is known as a ‘trick’ facility that evades building law regulations. Hamilton Hotel has already received a correction order twice and has also been charged for a lounge bar illegally added to the north side of the building. 

As a result of the investigation by the Ministry of Land, Infrastructure and Transport (국토교통부), it was confirmed that among the buildings near the accident zone, unauthorized extensions built nine years ago have not yet been taken down. For example, in 2013 it was discovered that the Hamilton Hotel had added 78 square meters of light steel frame and glass without permission to the first and second floors of the building. However, despite this incident taking place nearly a decade ago, no measures were ever taken to correct this illegal construction. Although this extension does not directly relate to the Itaewon incident, it demonstrates a lack of official crack-down on such extensions. 

The Seoul Metropolitan Government has since taken a firm response in regard to illegal construction. They aim to continue strengthening crackdowns on illegal buildings in densely populated areas, where safety accidents are at high risk. Criminal prosecution measures, particularly toward the Hamilton Hotel, will likely be enforced, leading to swift demolition measures.

Similar Case: Sewol Ferry (세월호) Investigation

On April 16, 2014, the Sewol Ferry sank during a trip from Incheon to Jeju Island. The Sewol Ferry Incident is one of the worst maritime disasters in modern South Korean history with the final death toll standing at 304 out of 476 passengers. Of the deaths, 250 were second-year high school students. This tragedy has been blamed on a combination of illegal redesigns, overweight cargo, a lack of crew experience, and lax government regulations. To make matters worse, it is believed that private fishing vessels were able to rescue more passengers than the Korean Coast Guard, bringing up the ultimate question: who is held responsible? 

The Sewol Ferry Disaster Special Investigation Team saw 11 people, including the captain of the ship, brought to trial under potential charges of murder by willful negligence. The prosecutorial team interviewed a total of 201 suspects and witnesses, as well as raided 17 different government agencies for evidence.

The Sewol Ferry captain escaped first without helping passengers who had been informed to stay on the ship, waiting for a rescue that never came. As the captain of the ship, he had the duty to protect his own passengers’ lives, but he chose not to do so, even though he knew that the passengers might die if he didn’t perform his duty. Although he didn’t directly drown the victims himself, when he didn’t do what he was supposed to do and let them die, the law considered it the same as murder. So he was found guilty of “murder by omission (부작위에 의한 살인)” and sentenced to life in prison.

Meanwhile, the captain was the only one who was found guilty of murder. The other crews of the ship were found guilty of “death caused by abandonment (유기치사),” not murder. “Abandonment” is a kind of crime in which a person has a duty to help and protect another person, but abandons that person without fulfilling that duty. For example, the parent has a duty to help and protect their child, so if a parent abandons their child, they are guilty of “abandonment.” If the victim dies because of abandonment, then the crime becomes “death caused by abandonment.”

Also, the inspector(경위) and the team captain of the Coast Guard who arrived first at the scene of the accident, was found guilty of “death by occupational negligence (업무상과실치사)” and sentenced to three years in prison. We already looked over this crime above.

Much like Itaewon, the Sewol Ferry incident found it difficult to place criminal charges, or to enforce more severe charges, on suspects. In addition, records and documents of what happened on that tragic day are difficult or now impossible for citizens to access. While this all seems unfair on the surface, there have been a few steps forward. For example, many new laws have been passed which build safety conditions that will hopefully prevent such a tragedy from happening again in the future. This may not be consoling to everyone, however, as the government and investigative agencies seem to limit the moral discussion at the heart of such tragic situations.