The Stabbed Politician – Focusing on Intention in Korean Law
Even if the essence of politics lies in the so-called distinction between friend and foe, if this distinction leads to acts of extermination against the other party, we may once again enter a state of struggle of everyone against everyone. In such a state of fear and life-and-death, human life becomes solitary, poor, nasty, brutal, and short.
On January 2, 2024 (hereafter, all dates are based on Korean Standard Time), Lee Jae-myung, the leader of the Democratic Party of Korea, was attacked by an unidentified man named Mr. Kim while moving after inspecting the Daehang lookout in Gangseo District, Busan. He sustained a knife wound to the neck.
What crime has Mr. Kim committed? Is it too obvious to consider it a crime of murder since it threatened a life? However, calling it murder seems premature as Lee Jae-myung did not die. What crime could Mr. Kim’s act of wielding a knife be classified as?
Intention of Crime in Korea
According to Article 13 of the Korean Criminal Code, a crime requires intention to be established. Intention refers to a kind of mental state. For example, if I am aware that the target of my knife-wielding is a person and I have the will to end this person’s life, then the criminal law would judge that I have an intention to commit murder. The problem is that intention is not visible. Nobody wields a knife while loudly proclaiming their intention to kill.
Due to this problem, the most commonly used concept in practice is implied intention (Dolus eventualis). Implied intention is a weaker form of intention. In implied intention, recognition is about acknowledging the possibility, and will is about accepting the occurrence of an event. If I thought while wielding a knife, the target could be a person (possibility) and it can’t be helped if the person dies as a result of my actions (acceptance), then I have an implied intention to commit murder.
Adding to this, the Supreme Court of Korea has ruled that “Implied intention, as a form of intention, differs from serious negligence in that there must be awareness of the possibility of the crime occurring and an internal willingness to accept the risk. Whether the actor accepted the possibility of the crime occurring should not solely rely on the actor’s statements but should be inferred based on the nature of the act, the circumstances, and other concrete situations.”
In simpler terms, the Supreme Court concludes that if a third-party observer based on external behavior and context can believe that ① the person wielding the knife knew the target was a human, and ② knew that the person could die yet still proceeded, then the person wielding the knife is deemed to have an implied intention for murder.
Key Issue of Stabbing of Politician
The key issue in the attack on Lee Jae-myung is whether there was an implied intent to commit murder. The fact that Mr. Kim targeted a vital area and caused an approximately 1cm deep wound could be seen as circumstantial evidence of an implied intention to commit murder. If investigative authorities cannot prove an (implied) intention to kill, charges of aggravated assault may be applied. Assault charges apply in cases of hitting or pushing, but if tools are used or if injury is inflicted in a conspiracy by two or more people, then aggravated assault charges apply.
What intention is recognized determines which charges apply, and based on these charges, the level of punishment imposed by the court on Mr. Kim will differ. Under Article 258-2 of the Criminal Code, aggravated assault is punishable by imprisonment for at least one year and up to 20 years. The sentencing guidelines for murder range from a minimum of 10 years’ imprisonment (for ordinary motive murder) to life imprisonment. For attempted murder, the lower limit is reduced by one-third, and life imprisonment is reduced to 20 years or more.
Currently, police have applied charges of attempted murder against Mr. Kim based on his confession of having the intention to kill, and the specific details of the crime are under investigation. The prosecutor has not yet formally charged him. However, Mr. Kim’s confession of approaching Lee Jae-myung with the intention to kill from the start, and attacking the neck area, which could lead to death due to bleeding, suggests a high likelihood of indictment for attempted murder.
However, as the Supreme Court of Korea states, the decision should not solely rely on the actor’s statements but should be based on the nature of the act, circumstances, and other concrete situations. Therefore, investigative authorities like the police or prosecutor are attempting to secure evidence to infer Mr. Kim’s implied intention by obtaining search and seizure warrants, not just relying on his confession.
Similarly, in 2006, the then-leader of the Grand National Party, former President Park Geun-Hye, was attacked and suffered a cut to her face. Despite the prosecutor charging Mr. Ji, who had slashed Park Geun-Hye’s right cheek with a cutter causing an 11cm long and 1-3cm deep wound, with attempted murder, election law violation, assault, and attempted extortion, the court acquitted him of attempted murder, stating, “It is difficult to acknowledge an intention to kill.”
In contrast, the case involving the then-U.S. Ambassador to South Korea, Mark Lippert, in 2015 had a different outcome. Mark Lippert was attacked by Kim Ki-Jong, resulting in several cuts to his right face and left wrist from a 25cm knife. The prosecutor charged Kim Ki-Jong with attempted murder, assault on a diplomatic envoy, and obstruction of business.
The court found that “The initial attack site on Ambassador Lippert was the face and neck, which could pose a great danger to life. The carotid artery runs just 1-2cm below the wounds; a stab in this area could have been fatal. Considering the attack site, repetitiveness, and severity of the injury, at least implied intention for murder was present,” and found Kim Ki-Jong guilty of most charges, including attempted murder.
As the incident is still in its early stages, it is necessary to monitor the investigation and assess the factual situation. However, considering Mr. Kim’s attack site and the severity of Lee Jae-myung’s injuries, it is anticipated that the prosecutor will recognize an implied intention for murder, albeit without the result of death, and likely indict Mr. Kim on charges of attempted murder.