Following multi-jurisdictional prosecution efforts, the infamous child pornography site Welcome to Video was shut down, and a grand jury in D.C. indicted the site’s operator, Korean National Jong Woo Son. Based on the indictment, the U.S. government requested extradition of Son pursuant to the Korea Extradition Treaty. Recently, however, the Seoul High Court—the sole judicial organ empowered to hear and decide extradition cases in the Republic of Korea without right to appeal—turned down that request, generating public outcry that the Korean judiciary patently abused their discretionary power.

As will be illustrated below, however, Korea has been highly cooperative when it comes to responding to legitimate extradition requests from the United States. In conducting judicial review of a given extradition request, the Korean judiciary must ascertain whether an extraditable crime was committed in violation of applicable U.S. laws or in U.S. territory to determine whether it is appropriate to extradite the individual in question. Indeed, this dogmatic prism through which the Korean courts have consistently navigated extradition requests from overseas is manifested in several recent extradition proceedings involving the United States.

For instance, after request by the U.S. government, the Korean judiciary extradited Hen Seok Lee, a Korean national and Chief Executive Officer and President of KTURBO and KTURBO USA, for making false representations that certain wastewater-treatment aeration blowers manufactured by KTURBO at its Korean premises were of U.S. origin. Such misrepresentations were allegedly made in contravention of the American Recovery and Reinvestment Act of 2009 to capture and enforce supply contracts to multiple municipalities across the United States. A jury in Chicago subsequently found Lee guilty in 2017 on five counts of wire fraud and three counts of fraudulent importation of goods into the United States.

In addition, in March 2014, the Korean authorities extradited Kyung Ho Song, a Korean national, to Illinois. Song, who was seventy-four years old at the time of extradition, had been charged with driving under the influence and reckless homicide in 1998 in Illinois and then fled to Korea. In his long-overdue criminal trial, Song ultimately pleaded guilty and was sentenced to five years in prison.  

Moreover, the Korea government handed over Ronald Rhee, a U.S. citizen and a murder suspect, to the U.S. State Department. Rhee had allegedly killed an Asian American in 2006, fled to Korea, and worked as an English tutor. He was subsequently found guilty of the first degree murder and imprisoned in Los Angeles in 2015. Finally, the Korean Ministry of Justice reportedly extradited an American male arrested on suspicion of sexually abusing minors. The suspect allegedly engaged in multiple rapes of minors in Kentucky back in 2003. He later relocated to Korea and worked as an English teacher. 

As surveyed above, regardless of the nationality of each accused or suspect, the Korean government has been willing to honor extradition requests from the United States as long as they involve extraditable offences committed on U.S. soil and/or in violation of U.S. penal enactments. By contrast, in the Welcome case, Song’s acts of crime originated from Korea, and, at the time of extradition proceedings, he had been imprisoned for 1.6 years for selling, lending, distributing, or providing child or youth pornography for commercial purposes in violation of the Act on Protection of Children and Juveniles From Sexual Abuse.

At this point, to assess whether Korea’s decision in Welcome is legally compliant, a brief analysis of the Extradition Treaty is warranted. On the subject of extraditable offenses, Article 2.4 of the Extradition Treaty provides that “[e]xtradition may be refused when the offense for which extradition is sought is regarded under the law of the Requested State as having been committed in whole or in part in its territory and a prosecution in respect of that offense is pending in the Requested State” (emphasis added). In Welcome, the Korean courts were entitled to assume jurisdiction over Song as he is a Korean national and Song’s operation of the Welcome darknet site and related criminal activities primarily transpired in the territory of Korea. In addition, a prosecution of Song was already underway at the time of his extradition proceedings. All in all, the elements enumerated in the Extradition Treaty indicate that the appellate court was correct in refusing to grant the extradition request in this particular case.

Nonetheless, the criminal justice system of the Republic of Korea may well benefit from serious overhauls when it comes to the toughening up of prosecuting sex-related offenses against juveniles and minors. The United States legal system may provide a useful point of reference in this regard. For instance, advertising child pornography in violation of Title 18 Section 2251(d) of the United States Code, which is an offense Son has been charged with, may carry a thirty year sentence.

Meanwhile, while the Korean court’s decision in the Welcome case appears to be in conformity with the text of the Extradition Treaty, it remains questionable if such discretionary decision is also in sync with the spirit of the treaty or the public sentiment in general.

Joe Cho is a writer, thinker, and lawyer from Seoul, Korea. This blog post is written in loving memory of the author’s late father who is now free as a butterfly.