How much should a settlement be?

For offenses such as assault or threats, which cannot be punished if the victim does not want punishment, the case ends with "no right to prosecute" (공소권없음) once a statement of non-punishment (처벌불원서) is submitted (Criminal Act (형법) Articles 260(3) and 283(3)). For other offenses, such as fraud, embezzlement or bodily injury, a settlement does not end the case. Instead, it weighs heavily when deciding whether you get a suspension of indictment (기소유예), end with a fine, or receive a suspended sentence (집행유예).

For offenses that can only be punished on a complaint, the case ends when the complaint is withdrawn. Fraud or embezzlement between certain family members is an example (Criminal Act Articles 328, 354 and 361). So before starting settlement talks, first find out which type your case is. The same money can mean very different things.

Treat "going rate" tables on the internet as a rough reference only. In practice, the amount is worked out by going through the items below one by one. Even if the victim's first figure is far from yours, do not cut off talks; asking what the figure is based on is how to keep the conversation going. If part of the harm is covered by insurance, as in a traffic accident, set the amounts so they do not overlap with that.

• Medical costs, future treatment costs and the period of the medical diagnosis
• Lost income from being unable to work, and the value of damaged property
• For fraud or embezzlement, the amount lost and interest since then
• Compensation for emotional distress
• Whether the case is before a decision or already at trial

Settling before a decision is made improves the chance of ending with a suspension of indictment or a fine. Even after the case is referred, it is taken into account if it comes before the prosecutor decides, and even after indictment it is considered in sentencing. The later it is, the fewer options you have.

If you do not know the victim's contact details, ask the investigator in charge to pass on that you wish to settle. If the victim agrees, the investigator will give you the contact details or put you in touch. Going to the victim directly or pressuring them through family makes settlement harder and counts against you in the decision. A first contact that starts with an apology is more likely to be accepted. Bringing up money first tends to come across as trying to buy your way out.

Submit the settlement agreement (합의서) and the statement of non-punishment to the investigator in charge while the case is with the police, to the Public Prosecution Service (공소청) after referral, and to the court after indictment. Send the settlement money by bank transfer so there is a record.

• Names and contact details of both parties, and the case number
• Which incident the settlement covers (date and details)
• The settlement amount, how and when it will be paid
• A sentence stating that the victim does not want the offender punished
• If needed, a sentence stating that this settlement also ends any civil claim for damages
• Date of signing, signatures and copies of ID

If you agree to pay in instalments, the victim usually wants to sign the statement of non-punishment only after receiving everything. This is because, for offenses not punishable against the victim's wishes, once the victim has said they do not want punishment, they cannot later ask for punishment again (Criminal Procedure Act (형사소송법) Article 232(3)).

If you really need the statement before the decision, write the payment schedule into the agreement and set an order, such as getting the signature after sending the first instalment. If you miss a promised date, the settlement may fall apart. After the final payment, getting a text confirming receipt can reduce disputes later.

If the victim refuses to the end, consider a criminal deposit (형사공탁). A defendant can make a deposit at the deposit office where the court handling the case is located, identifying the victim by the case number and similar details even without knowing the victim's personal information (Deposit Act (공탁법) Article 5-2). This special rule is for defendants who have been indicted and are on trial, so it is hard to use at the investigation stage.

A deposit is not the same as a settlement. If there is a deposit, the court must hear the victim's views before judgment (Criminal Procedure Act Article 294-6), and because the money was deposited against the victim's wishes, it is often given less weight than a settlement. Keep a record of the efforts you made toward the victim before depositing. Also be aware before deciding that, in principle, a deposit cannot easily be taken back once made (Deposit Act Article 9-2).

At the consultation we first explain whether your case is an offense not punishable against the victim's wishes, and what effect a settlement has at the current stage. Jisan Law handles contact and negotiation of terms with the victim's side on your behalf, reviews the wording of the settlement agreement and the statement of non-punishment with you, and sets out the settlement process and evidence of compensation in a defense counsel's written opinion. If the wording of the settlement has not yet been finalised, contact us through the chat on this page.