Lee Rae-jin, the elder brother of Mr. A, a public official from the Ministry of Oceans and Fisheries who was shot and killed by North Korean soldiers while drifting in the waters of Yeonpyeong Island in the West Sea, holds a press conference requesting information disclosure in front of the Blue House fountain on October 28, 2020, in Jongno-gu, Seoul. [Photo=Yonhap News]

The first-instance ruling in the West Sea public official murder case was not a verdict that concluded a single incident, but a judgment that clearly revealed what the judiciary should and should not judge. 

The court did not ask whether the government's judgment at the time was correct or morally justifiable. Instead, it only considered whether the judgment crossed the threshold for criminal punishment and concluded that it "cannot be determined as a crime."

At this point, many felt bewildered. 

Why Did the Court Not Hold Anyone Accountable?

People ask: Why did the court not hold anyone accountable, even though the state's judgment and actions clearly seemed inappropriate?

However, the essence of criminal trials lies elsewhere. 

A criminal trial is not a procedure to judge whether state power operated incorrectly, but a procedure to determine whether a specific individual committed an act that constitutes the elements of a crime. The moment this boundary is confused, the judiciary degenerates from a tool of justice into an extension of politics.

The legal principle confirmed in the first instance of the West Sea case is cold. 

Even if there are suspicions of distorted policy judgments, biased reporting, and political interference, these alone do not constitute criminal punishment. 

Unless specific abuse of power, individual coercion, explicit directives, and resulting actual rights violations are proven, criminal law stops. The court does not punish structures. It does not convict explanations either. 

Abuse of Power in the West Sea Case, If Applied to Rebellion Cases

Applying this legal principle directly to the ongoing rebellion and abuse of power trials brings an uncomfortable scene to mind. 

Expressions like "structural rebellion," "the intention of power," and "implicit approval" are politically powerful but become vulnerable in court. This is because the logic that the court excluded in the West Sea case is being repeated in the rebellion case. 

The language of criminal trials is proof, not interpretation, and requirements, not anger.

Abuse of power is the most dangerous charge at this point. 

Although it is a provision created to punish the abuse of power, it is also a crime where power can most easily argue "what was within the scope of duty?" 

If the scope of official duties is unclear or "unnecessary acts" are presented abstractly, the court will not easily recognize the establishment of a crime. This is why abuse of power collapses first as political anger grows. 

The standard for judging abuse of power shown in the West Sea case will inevitably be applied to the rebellion case as well.

However, the questions should not end here. 

The Issue in the West Sea Case is the Relief of the Victim

This is because the absence of criminal liability does not mean the disappearance of responsibility. The true challenge left by the West Sea public official case is not the success or failure of punishment, but the issue of victim relief. 

A criminal acquittal is not a denial of state responsibility. Rather, from that moment on, the center of gravity of responsibility shifts from criminal to administrative and constitutional law.

If a criminal trial is a procedure to determine an individual's crime, then state compensation and administrative responsibility are procedures to ask whether the state system operated normally. State compensation liability, which can be established even with negligence, asks whether the judgment and response at the time exceeded the scope of reasonable discretion. 

Questions remain as to whether the hasty "defection to North Korea" judgment was appropriate, whether the state fulfilled its duty of protection, and whether the post-incident response and records were handled responsibly. 

This is why the correction of administrative judgments and the restoration of honor are important. As long as the records are not corrected, the damage will not end.

This article is not intended to prejudge the guilt or innocence in a specific trial. 

However, it asks whether it is a responsible attitude to bring another tragedy to court in the same way, while ignoring the way the judiciary operated in the West Sea public official case. 

The more we acknowledge the limits of the judiciary, the clearer state responsibility must become. 

This is the real question left by the first-instance trial of the West Sea public official case, and the point we must not miss when looking at the rebellion and abuse of power trials.

By Reporter Kim Young