Settlement: when should you raise it?

‘When is the right time to settle?’ The answer lies somewhere between ‘the sooner the better’ and ‘don't rush.’ Both are true, which makes it all the more confusing. In criminal settlements, even the same amount of money can lead to different results depending on when and how you raise it.

A settlement does different work at each stage

For offenses that cannot be punished if the victim does not want punishment, such as assault or intimidation, the case can end on the spot once the victim's wish not to have the offender punished (처벌불원) is submitted. This wish must be expressed before the first-instance judgment is pronounced, and once expressed it cannot be withdrawn (Article 232(3) of the Criminal Procedure Act). For offenses that can be punished even after a settlement, such as fraud, embezzlement or bodily injury, where the settlement is taken into account differs by stage.

• Police stage: it is taken into account in whether the case is referred to the prosecutor and in the prosecutor's later judgment
• Before indictment: it is a major factor in deciding whether to end the case with a suspended indictment or a summary order
• During trial: it is taken into account in sentencing, and continues to matter until the sentence is pronounced

What is clear is that the later it gets, the fewer options remain. Once you are indicted, the option of a suspended indictment has already passed.

Still, avoid contacting the victim on day one

That said, calling the victim the day after the incident usually backfires. Contact received while the victim is still angry sounds more like pressure than an apology. Investigators, too, do not look favorably on a suspect contacting the victim directly. If the first contact begins with talk of money, it also easily leaves the impression that you are trying to buy your way out.

If you are disputing the charge, you need to be even more careful. Raising a settlement hastily can look as though you have admitted the facts. The proper order is to decide first which parts to dispute and which to admit, and to begin settlement talks within that direction. In a case where you dispute some parts and admit others, one approach is to start by discussing compensation for the parts you admit.

When you receive a settlement agreement, check that it contains a sentence saying the victim does not want you punished, and that the case number and date are correct. A settlement agreement only counts if it is submitted promptly to wherever the case currently is, that is, the police, the Public Prosecution Office (공소청) or the court. Receiving it and keeping it in a drawer does no good.

When you do not know how to reach the victim

If you do not know the victim's contact details, do not ask around to track them down and visit them. If you ask the investigator in charge to pass on that you wish to settle, contact will follow if the victim agrees. If you have appointed defense counsel, asking the victim's side about their wishes through counsel first puts less pressure on both sides.

The victim may ultimately not want to settle. In that case, the next step is to respect that wish while keeping a record of your attempts to settle and your efforts to make up for the harm. After indictment you can consider a criminal deposit (형사공탁), but because it is money deposited regardless of the victim's wishes, you should also know before deciding that it is often not given the same weight as a settlement.