IHYV: Legal FAQ

LEGAL FAQ (ie, The Not as Makjang as You Thought Guide)

Q: Why does everyone keep explaining what a public defender is?

A: A dedicated system of public defenders didn't exist until 2008. After a two-year test run of only sixty lawyers, the position became official and slowly expanded. Before 2008, private lawyers were appointed by a judge on a case-by-case basis to represent a defendant and then reimbursed by the state; this system continues concurrently to meet demand.

There are currently only ~230 public defenders in South Korea, which has a population of ~50 million. Over half of them work in the Seoul court system; 24 district branch courts have no public defenders, and others only a few. They serve two year terms for a maximum of six years in the same court district. Cases are assigned to them by the presiding head judge, who has sole power and discretion. A defendant is assigned a public defender if:

1. The defendant is a minor, over the age of 70 or is known or suspected to be mentally/physically impaired.
2. The charges against a defendant are subject to the death penalty, life imprisonment or more than three years imprisonment.
3. The defendant isn't able to retain a private lawyer.

Q: What are the reasons for recusal/turning down a case for a publlic defender?

A: According to the Korean Bar Association's Code of Ethics Article 22 the acceptable reasons for recusal are:

1. If an attorney was involved with the case under another official capacity.
2. If an attorney previously represented the adverse party in the same case.
3. If an attorney previously represented the adverse party in a different case.
4. If an attorney has a familial relationship with the adverse party or adverse counsel.
5. If there is a conflict of interest with a current client or case.

However, 3-5 can be ethically waived if involved parties are notified and give consent. There's also a 'reasonable justification' clause for assigned cases that requires an attorney to appeal to the institution involved; for a public defender, that would be the court/judge.

Q: Why are jury trials such a big deal?

A: Jury trials in criminal cases began as a limited five-year pilot program in 2008, and were affirmed in 2013 (the year the drama aired) after a review by the Supreme Court. A jury trial can be requested by the defendant only in specific circumstances and can be denied by the judge. Verdicts are decided by simple majority and are non-binding; even if a jury finds a defendant not guilty, the final verdict rests with the judges. Uniquely, judges are allowed to confer with and instruct the jury while the jury is allowed to weigh in on sentencing.

Jury trials tend to attract media attention, which is why Judge Kim always has his nose pore strips on before one; he wants to look good for the audience.

Q: Why are there three judges?

A: Any criminal case that involves a sentence of death, life in prison, or more than three years in prison is required to have a quorum of judges. This practice is meant to minimize bias and encourage debate, as most criminal trials are bench trials (ie, no jury). In cases involving serious crimes, usually the district head or most senior judge presides.

Q: Why is there always an audience in court?

A: All trials in South Korea are open to the public, though a judge can restrict access if necessary.

Q: How long is the sentence for murder?

A: According to Article 50 of the Criminal Procedure Act, murder is punishable by death, life imprisonment or no less than 5 years in prison. However, the system is very lenient toward first time offenders - especially if they show remorse - and it's not unusual for even serious crimes to receive a suspension of sentence. If suspension of sentence isn't an option, parole is considered after 70% of the original sentence has been served.

The killer in IHYV was a first time offender and likely received a suspension of sentence. If not, even with an original term of 15 years he would have been released on parole at ~10 years.

Q: Why don't the police take stalking seriously?

A: Stalking was a misdemeanor punishable only by a small fine (~80USD) or thirty days in prison until a law passed in 2022 upping the fine (~20,000USD) and allowing a maximum of three years in prison for repeat offenders.

Q: How long does an investigation/trial take?

A: If a suspect is in custody, police are required to complete their investigation within 10 days before turning it over to the prosecution. The prosecution is then given 10 days (with a possible 10 day extension in complex cases) to complete their investigation before filing an indictment. A trial usually occurs within 2-4 weeks; an appeal has to be filed within a week of a verdict.

The law does not set any deadlines for submission of evidence to the court. Both the prosecution and defense can make a motion during trial to enter a new article, document or witness into evidence at the discretion of the judge.

Q: Can the prosecution appeal a 'not guilty' verdict?

A: Double jeopardy doesn't kick in until a verdict is handed down by the Supreme Court. That gives the prosecution two chances to appeal in a normal criminal trial: from the low/district court to the high/appellate court to the Supreme Court. A famous example is Captain Lee of the MV Sewol ferry incident, who was acquitted of murder by the low court and found guilty on appeal.

Q: Can someone be prosecuted for murder without a body?

A: Yep. In many other jurisdictions as well.

Q: Where did these people go to law school?!

A: Before 2009, most prospective lawyers attended an undergraduate law program before taking the sasi/judicial exam. The sasi had an average pass rate of ~3%; anyone who passed was enrolled in a two year graduate course at the Judicial Research and Training Institute, which was the only law school and run by the state. Performance at JRTI determined whether lawyers could later apply to work as prosecutors or judges.

After 2009, private three-year law schools and a new bar exam modeled on the US system were implemented. The sasi/JRTI and the private system existed in parallel until 2017 when the sasi was finally phased out.

According the newspaper article about their appointment as public defenders, FL graduated as part of JRTI's 39th class (2010) while SML graduated as part of the 41st class (2012).

Great question!

This is more a socio-cultural issue with a side of spirituality. Bodily inviolability is a main tenet for the filial piety of Confucianism because your body is considered a sacred gift from your parents/ancestors. That's why everyone in historical dramas has long hair: it was taboo to cut it. Those tenets extend past death, with the chances of reincarnating less likely if a body isn't intact for funeral rites.

All of this is reflected in the South Korean legal system, which has some severe punishments regarding dismemberment, improper burial and defilement of corpses/graves; those charges likely account for half of ML's 20 year sentence and SFL's bio dad's life imprisonment.

So when the killer/SFL's bio mom cut off their own hand it shows that they're so consumed by revenge that they're not only willing to physically damage themself but spiritually damage themself in pursuit of their goals. It's something the story doesn't feel the need to explain because IHYV is a pre-Neflix era drama made for a predominantly South Korean audience.