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Abstract
This paper deals with the "torturer problem" among the "Third Wave" democratization cases. It presents a South Korean case (1995-1997) of successful legal retribution on past authoritarian rulers. Since South Korea went through a negotiated transition to democracy, the Korean case is somewhat exceptional.
The author shows that an explosion of popular pressure, the revelation of massive political bribes, and President Kim Young-sam's political interests were the main factors in initiating legal retribution. The author also presents legal theoretical arguments for and against such punishment, and assesses its impact on the democratic development of the country. The trials helped strengthen judicial power in Korean politics, but left some detrimental impacts on democracy, including "politics through court."
Key Words: Legal Retribution, Purge, Chun Doo-hwan, Roh Tae-woo, Kim Young-sam, Democratization, Rule of Law, Political Trials
I. Introduction
In consolidating a democracy, one main question reformers have to face is how to deal with what Huntington (1991) has dubbed "the torturer problem." In most cases, past authoritarianism involved an outright violation of the rule of law during its existence. Also, the authoritarian rules invariably produced a number of human rights abuse cases. When this omnipotent regime is gone, victims, human rights advocates, and democrats alike demand due legal justice. They argue that those responsible for the encroachment of the constitutional order and/or for the atrocities committed during the dictatorship must be punished in order to set an example and build a new democratic rule of law.
However, opposition to such a legal solution does exist. Those who oppose argue that except for clearly identifiable cases related to individual crimes, it is legally problematic for a successor regime to punish its predecessor in relation to its political actions or its administrative acts of ruling. Given the fundamental difference in their principles of organization, belief systems and interest configuration, finding a legitimate yardstick for judgment that can apply to both regimes is very difficult (Kirchheimer, 1965: 319). Also, the unavoidable controversy over the scope of prosecution, that is, who shall be punished and who shall be acquitted, is hard to determine. Trials even in the "ideal" cases of absolute defeat, such as the Tokyo and Nuremberg Tribunals, failed to convict a majority of those charged with crimes...