Hello, this is Attorney Park.
People who are facing a criminal investigation or a criminal trial sometimes share a similar concern.
They feel that they became involved in a case only because someone repeatedly encouraged, pressured, or persuaded them to do something they would not otherwise have done.
When that happens, one legal concept often comes to mind: entrapment.
However, not every situation involving persuasion or encouragement amounts to illegal entrapment.
Korean courts examine such claims very carefully.
The fact that someone contacted you first, suggested an illegal act, or created an opportunity for a crime does not automatically mean that entrapment has occurred.
Under Korean law, the key question is whether the person already had the intention to commit the crime before the investigative agency 's involvement.
Korean courts have consistently held that an investigation becomes unlawful when law enforcement officers, or individuals working closely with them, use deception, schemes, or other tactics to create criminal intent in a person who originally had no intention of committing a crime.
In other words, there is an important difference between catching someone who is already willing to commit a crime and creating a criminal who otherwise would not have existed.
Because real-life situations are rarely simple, courts do not rely on a single factor when deciding whether entrapment has occurred.
Instead, they look at the entire picture.
The court may consider the nature of the alleged offense and the circumstances surrounding it.
It may also examine the role of the person who encouraged the crime.
Was that person an ordinary private citizen? Was the person connected to law enforcement? Was the person acting under instructions from investigators?
The court will also look closely at how the contact began.
Who approached whom first?
Why did the communication start?
How long did the interactions continue?
Were there repeated requests or persistent attempts to persuade the target?
The method used to encourage the crime is equally important.
Simply providing an opportunity may be very different from repeatedly pressuring someone, overcoming repeated refusals, or using deception to obtain a desired result.
Another important question concerns the reaction of the person who ultimately committed the offense.
Did that person immediately agree?
Did the person hesitate?
Did the person refuse several times before eventually giving in?
Or did the person decide to act only after continuous requests from another individual?
Courts may also consider the person's criminal history and whether there is evidence suggesting that the person had already planned to commit a similar offense before any contact occurred.
However, a prior conviction alone does not automatically prove that criminal intent already existed.
It is merely one factor among many.
Besides, courts carefully examine the legality of the inducement itself.
The greater the involvement of those connected to law enforcement, the more closely the court will scrutinize the investigation.
This issue can have enormous consequences under the Korean Criminal Procedure Act.
In certain circumstances, a court must issue a Judgment rejecting public prosecution.
One of those circumstances exists where the procedure for instituting public prosecution is void for violation of the provisions of statutes.
This means that if a court determines that an unlawful entrapment operation led to the criminal charge, the problem may go beyond the evidence itself.
The court may conclude that the procedure for instituting public prosecution was legally defective.
In such a situation, public prosecution shall be rejected by judgment.
In practical terms, courts may find unlawful entrapment where a person connected directly to law enforcement actively creates criminal intent.
For example, if the inducer repeatedly encourages the conduct, provides detailed instructions about how the offense should be carried out, or even supplies money or other resources necessary for the crime, the court may conclude that the government went beyond investigating crime and instead helped create it.
Every criminal case is different, and entrapment is never easy to establish.
Nevertheless, Korean courts recognize that there are limits to what investigators may do.
Law enforcement officers are permitted to investigate crimes, but they are not permitted to manufacture criminal intent in a person who otherwise would not have committed the offense.
If you believe that your case began because of persistent inducement, repeated requests, or significant involvement by individuals connected to law enforcement, it may be worthwhile to examine the circumstances carefully.
