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Samsung Vice Chairman Lee Jae-yong (from left), former Future Strategy Office Director Jang Chung-gi, former Samsung Electronics President Park Sang-jin, former Future Strategy Office Deputy Director Choi Gee-sung, and former Samsung Electronics Executive Vice President Hwang Sung-soo head to the Seoul High Court on Dec. 7. (Yonhap News)

A few days ago, a trial hearing was held for an influence-peddling case involving Samsung Electronics Vice Chairman Lee Jae-yong following a reversal and remand decision. Opinions were shared by three members of an expert review panel assessing the activities of Samsung’s legal compliance oversight committee. Lee was also present in court as defendant. The court indicated early on that the expert’s assessment of the committee would factor into Lee’s sentencing. After all the fuss the media made over how this trial would seal Lee’s fate, coverage of the actual assessment findings was scant.

The gist of the assessment concerned the committee’s efficacy and sustainability. Hong Soon-tak, an accountant nominated by the special prosecution team, judged it to be “inadequate”; Kim Gyeong-su, an attorney recommended by Lee’s side, viewed it as a “positive step in the right direction.” Kang Il-won, a current Constitutional Court justice designated as a panel member by the court, said, “While the improved standing and staffing of the legal compliance oversight organization is laudable, it has not reached the point where it can define risks [of illegal behavior] and preemptively prevent them.” On the whole, the assessments focused on the “many shortcomings,” but in an appeasing way that did not raise any clear issues.

The mixed assessments had been in the cards. Originally, the court promised to “hear opinions from objective and neutral experts” — but then it designated an attorney who accepted a Samsung case as one of the panel members. This kind of framework was destined to produce a diluted opinion rather than a united one. What about the assessment process itself? Panel members were asked to produce opinions within just a month of being designated. The members’ on-site survey amounted to a mere three days, taking less than 10 hours. With so little time given to the three of them, it could be seen as too limited a framework for investigations or meetings. Instead, it was all done hastily, with the aim of using it as a major factor in sentencing.

At this point, we should examine the Supreme Court’s intentions when it reversed and remanded the case. The court fully overturned the ruling of the second court, which sentenced Lee to two years and six months in prison suspended for four years. Unlike that court, the Supreme Court recognized the implicit request for a favor in terms of the expectation of help from former President Park Geun-hye with Lee’s succession to group management authority. The amount of money recognized as having been embezzled or offered as bribes was increased from 3.6 billion (US$3.3 million) to 8.6 billion won (US$7.9 million). In short, they were demanding a stiffer sentence.

But then an unanticipated variable surfaced. The court hearing the remanded cases announced that it would factor Samsung’s legal compliance into the sentencing, based on the theory of “restorative justice.” In effect, it declared that it would regard a commitment to law-abiding management and related activities as grounds for leniency. Samsung went right to work setting up its legal compliance oversight committee. What must have been going through the minds of other chaebol owners who suffered punishments for acts of malfeasance, embezzlement, and bribery without being offered such an opportunity for leniency?

This isn’t the first time this has happened. With every crisis he’s faced, Lee has managed to evade punishment through a variety of new legal “techniques.” No sooner was he threatened with a second arrest amid an investigation into alleged illegalities in connection with his management succession than he came out with a new weapon: an “investigation review panel.” An unfamiliar concept even to reporters specializing in legal matters, it’s less than two years old. It’s an institution designed to protect people victimized by unfair criminal cases, yet here it was being deployed by a chaebol leader.

A 13-person panel was assembled from out of 250 experts and members of the public from different spheres; curiously enough, one of them was a professor who had actively defended Samsung in the past. The result was a recommendation neither to investigate nor to indict. Lee eventually avoided arrest, and the prosecutors very nearly lost the opportunity to indict him. A lot of different people have supported Lee in his legal response — the “legal technicians,” as it were. His defense team includes hundreds of legal specialists, including former prosecutors general and Supreme Court justices. It also boasts numerous experts from South Korea’s major law and accounting firms. We can’t ignore the media figures and professors who have appointed themselves Samsung’s watchdogs either.

Perhaps it’s a sign of confidence in the rock-solid state of the “Samsung cartel.” The approach of the Samsung’s ruling Lee family remains unchanged. Whenever a major case of illegalities or improprieties erupts, their first step is to wage an all-out PR campaign. If that doesn’t yield the desired results, they try to minimize the punishment by stubbornly arguing the legal pros and cons under investigation by prosecutors and in court. After that comes the inevitable apology and pledge to the South Korean people, followed by a return to the past as though nothing happened. Who was it who called the law the “minimum of common sense and morality”? People don’t see it as being in any sense just or fair when a legal victory flies in the face of common sense and ethics. They just grudgingly accept it. It’s a win, but it’s also a loss.

The final sentencing in Lee’s retrial is set to come as early as the end of this year. With the experts divided in their assessments, the decision is now entirely up to the court. It’s a good opportunity to consider the essence of legal justice as it is defined in the textbooks: “A just decision is not a result, but a process. It is a matter of showing the process leading to up to the decision to be just and fair.”

By Kim Hoe-seung, editorial writer

Please direct comments or questions to [english@hani.co.kr]