Can I Stab To Death A Home Intruder (In Korea)?

[Example Situation]

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It’s Saturday afternoon in Seoul, and Mr. Kim (age 57) is sound asleep at home in his apartment. He’s already had some drinks while having lunch at a nearby restaurant. He fell asleep right away upon returning home. About 30 minutes into his nap, Mr. Kim is suddenly awoken by a stranger, Mr. Lee (age 67), kicking him in the head. (Backstory: Mr. Lee is also a resident in the apartment building. Mr. Lee was also having lunch at that restaurant today, and he is furious that Mr. Kim was cursing at him there. Mr. Lee is actually mistaken. Mr. Kim was speaking gibberish in a drunken stupor. Mr. Lee was able to find Mr. Kim’s apartment room by asking around, and he let himself in because the front door was unlocked.) Anyway, Mr. Kim is shocked to find an intruder in his home. Mr. Kim rushes to the kitchen and grabs a knife. He then uses it to stab Mr. Lee in the chest. Mr. Lee is seriously hurt.

Q: Will Mr. Kim be able to invoke self-defense under Korean law?


I. The Ruling

The above example situation is very similar to a case recently reported here in Korea. The district and appellate courts both found Mr. Kim guilty of attempted murder.

1. District Court Ruling: Mr. Kim is found guilty and sentenced to 2 years and 6 months in prison (no probation).

2. Appellate Court Ruling: Mr Kim is found guilty and sentenced to 2 years in prison. This time, however, Mr. Kim is able to receive probation. This means he will not actually spend time in jail.

As you can see, self-defense was not recognized in either instances. The main reason: The intruder, Mr. Lee, was a relatively small, old man (67 years old; 5 ft 2 in) and had no weapons on him. The courts saw Mr. Kim’s response as disproportional and retaliatory.

The appellate court did, however, commute Mr. Kim’s sentence to probation. The appellate court placed more emphasis on the fact that Mr. Lee was an intruder.

II. Can I Stab To Death A Home Intruder (In Korea)?

So, the answer to this question is “most likely no.” The only scenario that I can (sort of) envision where that would be okay is: The home intruder 1) already has a knife + 2) is attacking you + 3) shows no sign of relenting. Even then, you would probably have to argue that you did not really “intend” to kill the intruder. That you accidentally killed the intruder while struggling for your life. I would suggest you try to stab a non-vital area first (if at all).

In Korean self-defense cases, courts often quote the age, height, and weight of the attacker. So, size does matter. This implies two things: 1) The courts want to see if you really needed a weapon to “defend” yourself; 2) Basically, there are no clear-cut “self-defense rules” (e.g., This kind of situation always entitles you to do this…). Each case is viewed in its own context.

In this case, Mr. Lee did not die, but Mr. Kim was still unable to invoke self-defense. Mr. Kim was found guilty of attempted murder because (at the end of the day) the courts asked themselves two questions: “Did he really have to stab him?” and “In the chest?”

To learn more about self-defense law in Korea, click here.

To learn more about Korean law on murder, click here.

Thanks for reading!

Obstetrician Accidentally Kills Patient While Performing Abortion… (And Avoids Prison)

[Example Situation]

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A teenager (age 17) is 23 weeks into her pregnancy. She and her mother visit an OB/GYN clinic in Seoul. The obstetrician (female, age 37) recommends an abortion saying the fetus might have Down Syndrome. The teenager and her mother agree to an abortion. During the procedure, the teenager (and fetus) die due to complications. It is also later revealed the obstetrician had made a false entry in her medical records: “Abortion due to Rape.”

What kind of punishment can the obstetrician expect under Korean law?


I. Abortion Law in Korea

In Korea, abortions are generally forbidden (i.e., illegal and criminal).

But, not all abortions are forbidden. According to the Mother and Child Health Act (모자보건법) and its enforcement decree, an abortion may be carried out if:

– The continuation of pregnancy seriously endangers the mother’s health, or

– Either spouse suffers from certain eugenic, genetic or contagious diseases, or

– The pregnancy was a result of a rape-related crime or incest.

In addition, all abortions are required to be performed by a physician, with the consent of both spouses, and within 24 weeks of pregnancy. Meeting these requirements negates illegality/criminality.

According to the Supreme Court of Korea, the term “seriously endangers” means when an abortion is inevitable in order to save the mother’s life (Supreme Court Decision of April 15, 2005, 2003Do2780).

II. The Ruling: Guilty, but No Actual Prison Time

The above example situation is very similar to an actual case that was recently reported here in Korea.

The Seoul Eastern District Court found the obstetrician guilty of “Abortion by Doctor,” etc. The court sentenced her to 1 year in prison and a suspended her license for 2 years. She was, however, able to receive probation, meaning she will not actually spend time in jail.

The obstetrician recommended and performed an abortion even though there were no legal grounds for doing so. The abortion was an illegal one. As a result, she faces criminal liability under the Criminal Act (형법).

According to Article 270(3), an obstetrician can face up to 10 years in prison if the patient dies while he/she performs an (illegal) abortion. In this case, the obstetrician received (very) lenient punishment.

FYI 1: Even if the procedure was successful, the obstetrician could still face up to 2 years in prison. The problem: The abortion would have gone unreported.

FYI 2: Even if the fetus had Down Syndrome, the abortion would still have been illegal.

III. Related Crimes: “Abortion” / “Instigating Abortion”

In Korea, it is also a crime for a pregnant woman to procure her (illegal) abortion. This crime is called “Abortion” (낙태), and the punishment is imprisonment for not more than 1 year or a fine not exceeding 2 million won. In practice, the punishment is usually a fine of 2 million won.

Meanwhile, a person who persuades a pregnant woman to have an (illegal) abortion can also be punished. This crime is called “Instigating Abortion” (낙태교사). This person will face the same punishment.

To learn more about these crimes, click here.

Thanks for reading!

Man Victim Of ‘Attempted Rape’ (Perpetrated By A Woman)

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Today, an interesting case was reported here in Korea. A woman was indicted for attempted rape of a man. A 45-year-old (married) woman tried to rape her lover, a 51-year-old man, by drugging him (and tying him up). She did this after the man tried to end the relationship.

This is the first legitimate case in South Korea that a man is allegedly the victim of (attempted) rape perpetrated by a woman.

Note: Korea’s rape-related laws became gender-neutral only in June 2013. In June 2013, Korea’s rape-related laws were revised so that even men (not just women) can fall victim to rape. Before June 2013, only women could. If a man was “raped” by a woman/man, the crime used to be “Indecent Act by Compulsion” (강제추행).

FYI: Even before June 2013, a woman could be punished for rape after, say, having aided and abetted a rapist man.

Sometimes, I read or hear some people say, “In Korea, rapists can bribe their victims to avoid punishment.” That is also no longer true. Since June 2013, a “criminal complaint” is no longer a requirement for punishing rapists. In other words, even if the rapist and the victim reach some sort of settlement (and the victim agrees to drop the criminal complaint), the prosecutor can/will go on with the case and seek punishment. It’s just that a settlement makes the punishment less severe.

Korean law can be tricky sometimes. I often use Korea’s rape laws as one example. Three separate laws are simultaneously involved for the crime of rape. The applicable law is decided by the age of the victim:

1) 19 and up: The Criminal Act (형법)

2) 13 – 18: The Act on the Protection of Children and Juveniles from Sexual Abuse (아동•청소년의성보호에관한법률)

3) 12 and below: The Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (성폭력범죄의처벌등에관한특례법)

The ages are in int’l age. As you can imagine, the younger the victim, the more severe the punishment. The most severe punishment for rape is life imprisonment.


DID YOU KNOW?

In Korea, forced oral/anal sex constitutes the crime of “imitative-rape” aka “like-rape” (유사강간), not rape.

In Korea, forced sex with a person who is (already) drunk or asleep constitutes the crime of “quasi-rape” (준강간), not rape.


At the top of this post are Articles 297 and 300 of the Criminal Act. In today’s case, the Criminal Act applies because the victim is an adult. Article 300 is also important because (in Korean law) you can punish someone for an attempted crime only if there is a specific clause stating that “attempts” are also to be punished. For instance, even when adultery used to be a crime, “attempted adultery” was not punished because there was no clause stating that “attempts” were also to be punished. For attempted crimes, the punishment is less severe.

Thanks for reading!

[March 2015] Interesting Cases

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Below are some interesting Korean court cases reported this past month. I’ve summarized each case in English. The news links are in Korean.


1. [Seoul Central District Court; Reported on March 2, 2015]

A (recently married) man sued the studio which he’d hired to take pictures for/during his wedding. The bride and her father were photographed with their eyes closed. The court found for the plaintiff and ordered the studio to return KRW 400,000 (of 650,000) and pay an additional 1 million won for psychological pain and suffering. (Link)


2. [Supreme Court of Korea; Reported on March 3, 2015]

The Supreme Court of Korea ruled that if a married couple is unable to have children due to the husband’s abnormal sex chromosomes, that still isn’t a cause for an annulment. (It could be for a divorce.) The Court reversed and remanded the appellate court decision which had ruled that it was. The Court explained that such circumstances do not constitute: “When at the time of marriage one of the parties was unaware that the other party had been suffering from a malignant disease or had any other serious reason which would make marital life unable to continue;” under Article 816.2 of the Civil Act. (Link)


3. [Daegu District Court; Reported on March 3, 2015]

A single woman who was caught having a shower (naked) with a married man in his home was found guilty of the crime of “Intrusion upon Habitation” (i.e., a crime akin to burglary). The wife caught them having a shower together. Originally, the wife wanted to have them punished for adultery, but adultery was soon ruled unconstitutional + she did not have enough evidence anyway. The husband had allowed the woman to enter the home, but the wife clearly wouldn’t have. In such case, the entrant can/will be punished for “Intrusion upon Habitation.” The woman was fined 1 million won. (Link)


4. [Supreme Court of Korea; Reported on March 7, 2015]

The Supreme Court of Korea ruled that circumstantial evidence alone can be enough to convict a person for drunk driving. In other words, even if the driver was not caught red-handed and/or there were no witnesses, that driver could still be found guilty. If the totality of the circumstances point to the fact that he/she must have driven drunk, circumstantial evidence could be enough to convict. For instance, the driver later compensates for the damages incurred by his/her car + the driver was found very drunk at the scene of the accident. (Link)


5. [Ulsan District Court; Reported on March 9, 2015]

A man was found guilty of sexual violence, child abuse, etc. for having chastised another person’s child in public. He pulled down a 5-year-old boy’s pants and underwear + spanked the boy in front of other children. The man was fined 3 million won and ordered to attend 40 hours of “sex offender treatment program.” Meanwhile, the boy’s father, too, was found guilty of violence and fined 3 million won for having assaulted that man while demanding an apology. (Link)


6. [Seoul High Court; Reported on March 10, 2015]

A Chinese national (of Korean descent) residing in South Korea was ordered to leave the country via a “departure order” issued by immigration. (He would also not be able to re-enter for one year.) The “departure order” was issued when the Chinese national applied for a F-4 visa. (He had an expiring H-2 visa.) The reasoning for issuing the order was that he was “implicated in crime at least 3 times in the last 5 years.” (They were all crimes of violence.) The order was issued even though he was convicted only once. The two other times, he was able to reach a settlement with the victims and as a result avoided prosecution. The Seoul High Court reversed the lower court decision which had found the order invalid/unlawful. The Seoul High Court reasoned that the immigration office has wide discretion regarding such matters and wide discretion is indeed necessary for national public safety purposes. (Link)


7. [Daegu District Court; Reported on March 13, 2015]

A woman from Vietnam resides with her Korean husband in Korea. Her younger sister comes to Korea as well. The younger sister gives birth to a son, but the father is nowhere to be found. One day, the younger sister is abruptly deported back to Vietnam. The older sister (and her husband) register her younger sister’s son as their own. The baby is able to acquire a Korean passport. Soon, the baby is successfully sent to Vietnam to reunite with his mother. Result: The older sister and her husband are found guilty of false entry of public digital records, violation of the Immigration Control Act, the Passport Act, etc. The older sister is fined 3 million won; her husband is fined 5 million won. (Link)


8. [Supreme Court of Korea; Reported on March 17, 2015]

The Supreme Court of Korea reversed and remanded an appellate court decision which had found a male physical therapist guilty of inappropriate sexual touching (aka “indecent act.”) He had been fined 3 million won for touching (w/o consent) a female patient’s breasts. The Court exonerated the man because the female victim could have easily extricated herself + did not (at the time) clearly express any disapproval + filed a criminal complaint after two days. Also, the man clearly and consistently denied the claims from the very beginning. All in all, the victim’s claim alone was not enough to convict the man. (Link)


9. [Daejeon District Court; Reported on March 18, 2015]

A woman was found guilty of criminal negligence and fined KRW 500,000 for failure to leash her dog. Her dog bit a child in public. (Link)


10. [Seoul High Court; Reported on March 22, 2015]

A 26-year-old man was found guilty of attempted rape after threatening (via KakaoTalk) a 13-year-old girl to come over and have sexual intercourse with him at his home. Originally, the girl had agreed (via KakaoTalk) to provide oral sex for money. Once the agreement was reached, the man suddenly threatened to divulge the KakaoTalk exchanges to all her friends. The girl ultimately refused to come over and reported the incident to the police. The man was sentenced to 2 years and 6 months in prison (4 years probation). He will not actually serve time in prison. It’s interesting that even threats (made from afar) were recognized as enough to satisfy the “attempt” element. (Link)


11. [Daegu District Court; Reported on March 23, 2015]

A 50-year-old man was found guilty of forgery and other related crimes after he tried to impersonate his younger brother at the police station. He had been taken there because he unjustifiably refused to pay a KRW 8,000 taxi fare. He was sentenced to 4 months in prison (no probation). He will actually serve time in prison. He failed to receive probation because these crimes were committed while he was already on probation for other previous crimes he had committed. (Link)


12. [Ulsan District Court; Reported on March 23, 2015]

A 46-year-old man was found guilty of inappropriate sexual touching (aka “indecent act”) after he slapped a female coworker on the buttocks several times on two separate occasions. He was fined 4 million won and ordered to attend 40 hours of “sex offender treatment program.” (Link)


13. [Daegu High Court; Reported on March 23, 2015]

A 63-year-old man was found guilty of murder and sentenced to 16 years in prison for having stabbed to death a neighbor. He stabbed the neighbor over 70 times in the face and neck. An argument broke out after the neighbor accused the man for not having paid back KRW 65,000. One mitigating factor in this case was that the man was drunk when he perpetrated the crime. Still, many people online seemed to be of the opinion that the sentence was way too low. The man will also have to wear a GPS ankle bracelet for 20 years after his release. (Link)


14. [Incheon District Court; Reported on March 24, 2015]

A 24-year-old man was found guilty of the crime of “Insult” after cursing out (repeatedly) a female online gamer in a game chat room. He was fined 2 million won. The key issue was whether the man could be found guilty even when he referred to the female gamer only by her game ID. The court ruled one need not refer to a person via his/her real name to be found guilty of this crime. In Korea, publicly insulting another person (w/o provocation) constitutes the crime of “Insult.” (Link)


15. [Daegu District Court; Reported on March 24, 2015]

A 62-year-old woman was found guilty of murdering her husband and sentenced to 3 years in prison via a jury trial. (In Korea, a jury trial is available only for criminal cases.) The woman had been suffering domestic violence throughout her life. One day, her husband (while drunk) tried to hit her with a steel hammer. She took the hammer away from her husband and went on to strike him repeatedly which resulted in his death. I think self-defense was not really a valid defense for the woman because she continued to strike her husband even when she had successfully extricated herself from danger. But considering other mitigating factors, she only received a 3-year prison sentence which is one of the shortest prison sentences one can receive for murder. (Link)

For fun, below is a short clip of what a jury trial looks like in Korea.


BONUS CASE [Daegu High Court; Reported on March 29, 2015]

The Daegu High Court affirmed a lower court decision which had found a 22-year-old man not guilty of inappropriate sexual touching at a club (aka “indecent act at a crowded place.”) He was indicted solely based on the female victim’s description that the perpetrator was wearing a pink shirt and had short hair. The courts all felt this was not enough to convict the man especially considering that: the club was dark and crowded + the club had special blue lighting + the victim was drunk herself and only glimpsed the perpetrator from the side/rear. (Link)

Thanks for reading!

South Korea: How Cyber Defamation Can Land You In Jail

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On the day of the Sewol Ferry Disaster last year, a 30-year-old man (here in Korea) decided to fabricate a series of text message exchanges. The exchanges (which were totally made up) made it seem as if the maritime police/authorities were deliberately not rescuing the drowning passengers. The man used two cell phones to make it seem as if he was really texting with a rescuer friend who was at the scene. He then posted on the internet a screenshot of the fabricated text messages. He deleted it ten minutes later, but all hell had already broken loose. Soon, the man was indicted for “Cyber Defamation.” What would become of him?

Earlier this month, the Supreme Court of Korea affirmed the appellate court decision which had found that man guilty and sentenced him to one year in prison (no probation). This means he will actually serve time in prison. By fabricating + posting the exchanges, he had defamed the police/authorities who were in charge of the rescue operation that day.

Note: In Korea, defamation is a crime, and “truth” is not a defense.


 <What is “Cyber Defamation” (사이버 명예훼손)>

Simply put, defaming someone online (w/ intent to disparage). Unlike other Korean defamation crimes, this crime is not found in the Criminal Act (형법). Instead, it’s found in the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. (정보통신망이용촉진및정보보호등에관한법률). See Article 70.

“Cyber Defamation” exists in this separate/newer law because lawmakers thought it necessary to punish this type of defamation more severely. When perpetrated via a false statement, the maximum punishment is either 50 million won in fine or a 7-year prison sentence! This crime is punished more severely most likely because things tend to spread more quickly online and the damage is more irreversible.

Most times, a person who is found guilty of “Cyber Defamation” will end up with a criminal fine. Prison sentences are still somewhat rare. (Actual prison time even rarer.) Prison sentences are reserved for those “egregious” cases where the defamatory statement: 1) was based on a lie + 2) greatly affected the public at large and/or harmed the victim’s business. Which kind of explains why that man was sentenced to prison.

DID YOU KNOW? In Korea, defaming a dead person is also a crime. One person actually served time for that crime. To learn more, click here.

DID YOU KNOW? Korean laws tend to have long names. The longest is: “대한민국과 아메리카합중국 간의 상호방위조약 제4조에 의한 시설과 구역 및 대한민국에서의 합중국 군대의 지위에 관한 협정의 시행에 따른 국가 및 지방자치단체의 재산의 관리와 처분에 관한 법률.” (83 characters in Korean)


Below is an online comment I randomly found some time ago. People here were talking about a specific Korean actress. I think the underlined part has the potential to qualify as “Cyber Defamation.” Rehashing stuff also counts as defamation. The allegation need not be original/unique.

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Nowadays, “Cyber Defamation” is such an easily committable crime. (I also know because a family member was once investigated for this crime.) Below is what you would get (in the mail) if you were being investigated by a prosecutor. Although it reads “Defamation,” you can tell the (actual) crime is “Cyber Defamation” because of the law cited.

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<Bonus Material: What is “Insult” (모욕)>

In Korea, it’s a crime to publicly insult another person (w/o provocation).

Article 311 of the Criminal Act

A person who publicly insults another shall be punished by imprisonment or imprisonment without prison labor for not more than one year or by a fine not exceeding two million won.

– Translation by KLRI (Korea Legislation Research Institute)

The crime of “Insult” differs from defamation in that it deals with opinion, not allegations of fact. Currently, the most common form of this crime is online name-calling. There is no separate “cyber” form of this crime, so Article 311 applies to both online and offline forms. A criminal complaint is required in order to prosecute someone for “Insult.”

So, the issue is what exactly qualifies as “Insult.” The legal threshold is shockingly easy to satisfy. Take, for instance, the following tweets. Korean courts have recognized the following tweets (in Korean) as constituting “Insult.” A criminal fine was imposed in both instances.

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DID YOU KNOW? American comedian Bill Maher once implied Donald Trump to be an orangutan. That would qualify as “Insult” here in Korea.

In June 2013, the Constitutional Court of Korea reviewed the constitutionality of Article 311. Whether Article 311 (excessively) infringed upon an individual’s freedom of expression. The Court affirmed Article 311 as “constitutional.” Out of the 8 Justices deliberating, 5 Justices saw Article 311 as constitutional, while 3 saw it as unconstitutional. At least 6 votes of unconstitutional are required.

For the time being, people in Korea should avoid online name-calling altogether. It’s by far the easiest way to commit a crime here.

Thanks for reading!

Adultery No Longer A Crime (In Korea)!

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Today, the law criminalizing adultery (i.e., Article 241 of the Criminal Act) was found “unconstitutional” by the Constitutional Court of Korea.

As a result of this momentous ruling, Article 241 is repealed and adultery is no longer a crime in Korea. As of right now!

Note: In Korea, “Adultery” referred to: 1) having (straight) sex with someone other than your spouse (i.e., 간통), or 2) knowingly having (straight) sex with someone who is married to another person (i.e., 상간).

FYI, I keep saying “straight” sex because “oral” sex was never considered “Adultery.” Extramarital oral sex was/is a cause for divorce, but it’s never been a crime here in Korea. (Well, not unless it was paid for.) Former U.S. President Bill Clinton once famously said, “I did not have sexual relations with that woman, Miss Lewinsky…” If he was going by the definition of “Adultery” under Korean law, he could have had a point. But I digress. Below is Article 241 that was repealed today.


Article 241 (Adultery)

(1) A married person who commits adultery shall be punished by imprisonment for not more than two years. The same shall apply to the other participant.

(2) The crime in the preceding paragraph shall be prosecuted only upon the complaint of the victimized spouse. If the victimized spouse condones or pardons the adultery, complaint can no longer be made.

– Translation by KLRI (Korea Legislation Research Institute)


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In Korea, the Constitutional Court (not the Supreme Court) reviews the constitutionality of laws. All 9 Constitutional Court Justices normally preside in a given case. For a law to be found “unconstitutional” (and be repealed), a minimum of 6 votes (out of 9) are required.

Today’s case: Out of the 9 Justices presiding, 7 saw Article 241 as “unconstitutional,” while the remaining 2 saw it as “constitutional.” Hence the “unconstitutional” ruling today. FYI, Article 241 was reviewed a total of 5 times by the Constitutional Court. (See chart at the very top.) Fifth time was the charm.

The Court felt Article 241 was unconstitutional (mainly) in that it infringed upon an individual’s “right to sexual self-determination,” and “right to privacy” under the Constitution. And that the infringement was excessive enough to warrant a repeal of Article 241. Article 241 is now history.

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DID YOU KNOW? In the 1990 and 1993 reviews, 3 Justices saw Article 241 as “unconstitutional.” One of them saw criminalizing adultery itself as “unconstitutional,” while the other two saw stipulating only a prison sentence (with no choice of a criminal fine) as the “unconstitutional” part. Indeed, that is mainly why actual conviction almost always required hard/direct evidence (e.g., catching them in the act + obtaining semen, blood…). Unlike many other crimes, there was no option of imposing a fine for the crime of “Adultery.” So if found guilty, the punishment had to inevitably be a prison sentence (although probation = no actual prison time). FYI, a fine (벌금) is always considered a lighter punishment than probation. They say only about 1% of all “Adultery” convicts failed to receive probation and actually ended up in jail.

DID YOU KNOW? In 2013, there were a total of 3,015 formal criminal complaints of “Adultery.” Out of those, 782 actually resulted in indictment/prosecution. That is a 25.94 % prosecution rate.

DID YOU KNOW? In 2009, a crime called “Sexual Intercourse under Pretense of Marriage” was ruled “unconstitutional.” It used to be a crime for a man to have sex with a woman by deliberately deceiving her into believing that he would later marry her. To learn more, click here.

DID YOU KNOW? The Constitutional Court of Korea sometimes finds itself at odds with the Supreme Court of Korea. One reason is because the Constitutional Court is keen on reviewing the constitutionality of even Supreme Court Decisions. This is controversial because some view this as a case (potentially) being “tried” 4 times. Korean law stipulates that a case is to be tried 3 times at most (i.e., Trial-Appellate-Supreme).


Anyway, let me try to explain the legal implications of today’s ruling.

<What It Means>

1) For future adulterers: You can no longer be prosecuted/indicted by the authorities. Adultery is no longer a criminal matter. It is now only a civil matter (e.g., cause for divorce, tort damages, custody battle…).

2) For past adulterers: If you were found guilty (definitively) after October 30, 2008, you can file for a retrial to exonerate yourself. (In some cases, you can also file for compensation from the government.) It is believed that around 3,000 will be eligible for a retrial.

3) For those undergoing trial or investigation: The case is immediately thrown out (Judgment of Acquittal or Disposition of Non-Indictment).

4) For those imprisoned: Released immediately + eligible for a retrial.

When a Korean criminal law is found “unconstitutional,” that law loses effect immediately and also retroactively. It’s as if that criminal law never existed to begin with. This has meant all those who’ve (once) been convicted under that law could file for a retrial (to acquit themselves). But now, not everyone can do that. The Constitutional Court Act (헌법재판소법) was tweaked last year so that only those found guilty after the law was last reviewed could file for a retrial. (In this case, 2008.) Many think the tweak was made in anticipation of the ruling today. Without it, there would be massive chaos. Without it, it is estimated more than 100,000 would be eligible (as opposed to 3,000). Article 241 first came into being in 1953! So, the tweak was sort of a (necessary) compromise.


 <What It Does Not Mean>

The ruling does not mean infidelity is no longer “illegal/unlawful.” In law, “illegality” and “criminality” are not synonyms. A crime is always illegal, but not the other way around. Below is how I personally feel:

– “South Korea decriminalises adultery” : Good!

– “South Korea legalises adultery” : Hmm…

Well, infidelity will continue to be a civil matter (as opposed to being both a criminal and civil matter). This basically means:

1) Infidelity will continue to be a “cause for divorce.” In Korea, a married person can normally file for (judicial) divorce only when his/her spouse is at some fault (for ruining the marriage). This includes infidelity, aka “unchastity” under Article 840 of the Civil Act (민법).

2) Infidelity (or “unchastity”) will continue to be “illegal/unlawful” under the Civil Act, so a “victimized spouse” can still sue for tort damages (i.e., psychological pain and suffering). Against both his/her spouse and the 3rd party involved. We’ll have to wait and see whether the amount awarded as tort damages will generally increase (as some suggest).

FYI, Korea is a “civil law” jurisdiction, meaning we have a written a civil code (aka the Civil Act), just as we have a written penal code.

FYI, “unchastity” under the Civil Act is a much broader concept than adultery. “Unchastity” does not necessarily require sexual relations.

To learn more about “unchastity” and Korean divorce law, click here.


 <Afterword: Korean Law Changes Suddenly & Swiftly>

Yes, it does. This is what I mean by that:

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1) In Korea, laws are continually + frequently enacted/revised. Unless the existing law is explicitly being revised, the enactment of a new law does not automatically “repeal” the existing law. They coexist. It’s just that a new law takes precedence in instances where the two collide (i.e., say different things about the same matter). This is because new laws tend to be the more specific/detailed laws. In Korean law, an all-too-common mistake is to apply an old/general law without realizing that a new/special law has (recently) been enacted. One example: It is wrong to (first) apply the Criminal Act (형법) when criminal defamation is perpetrated online. In such case, the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. (정보통신망이용촉진및정보보호등에관한법률) always takes precedence. (Nowadays, most defamation is actually perpetrated online.) This is why Korean law can be tricky (even for me). Above photo: Newspaper notice announcing the impending revision of existing laws and the enactment of new ones. Citizens, too, can take (some) part in the legislation process by giving feedback before a deadline.

2) Like in the adultery case, existing laws are quite often (out of the blue) ruled “unconstitutional.” It’s hard to tell when exactly a Constitutional Court ruling will be rendered. For example, the ruling today came as the result of a request that was filed way back in 2011! (Well, the Court was/is very busy.) To makes matters even more hectic, criminal laws that are ruled “unconstitutional” lose effect immediately + retroactively. (Other laws, only immediately.) This is why the Constitutional Court sometimes likes to render “incompatible with the constitution” rulings. This type of ruling is identical an “unconstitutional” ruling except the law loses effect at some future date (as opposed to immediately).

At any rate, this seems to be an interesting time to follow Korean law.

Thanks for reading! I will try to update if necessary.

Can I Get Fired For Hitting A Coworker (In Korea)?

[Example Situation]

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Dwight, Jim, and Andy are coworkers at a paper sales company in Seoul. They don’t normally get along very well. One day at work, Dwight and Andy find out about the new seating arrangement in the conference room. (FYI, this company has assigned seating even in the conference room.) Dwight and Andy aren’t very happy, and they go talk to Jim who was in charge of assigning the new seats. Dwight and Andy complain to Jim that only their seats are in the front-row center. (The two had asked for seats somewhere in the back.) But Jim replies that the arrangement is “final” and there is nothing he can do about it now. Angered by the response, Dwight grabs Jim by the collar and slaps him in the face. Jim slaps back. Andy (who has anger issues) then punches Jim in the face. At this point, the fight is broken off by the other employees. No one suffers any injuries, maybe except for Jim who’s picked up a minor bruise. Well… As a result of these events, Dwight and Andy are later fired from work. (Jim is suspended w/o pay for 1 month.) Dwight and Andy both feel they were harshly done by. So, the two file a claim/lawsuit against the company asking the court to find their disciplinary dismissals as “invalid.” Are they likely to win under Korean law?


The above “example situation” is very similar to an actual case that was recently reported here in Korea. (Yes, the employees fought over seating arrangements.)

I. The Ruling

The Seoul Central District Court found for the plaintiffs.

1) The dismissals were found “invalid,” meaning the company would have to take Dwight and Andy back.

2) The court also ordered the company to pay wages (due since termination date).

II. Reasoning

The court felt that “dismissal” was not a proportional disciplinary measure to the misconduct(s) in question. In other words:

1) Other less severe disciplinary measures would have been sufficient/adequate, and

2) There was no reason find that their continued employment would be impractical/impossible.

Basically, the court is saying that a company has the discretion to discipline its employees for such misconduct, but (in this case) the disciplinary measures went too far. As you know, “dismissal” is the most severe form of (company) disciplinary measure.

III. Disciplinary Dismissal under Korean Law

Then, what makes for a lawful/valid “disciplinary dismissal” in Korea? Answer: There must be “just cause” (정당한 사유) for the dismissal. Well, how is “just cause” established? In essence, three requirements have to be met:

1) The cause for disciplinary dismissal must have been specifically outlined in at least one of the following: the employment contract, the rules of employment, or the labor collective agreement.

2) Even if outlined, the cause (in and of itself) has to be “lawful/valid.” This means that the outlined cause must indeed be one which renders continued employment impractical/impossible. At the same time, the cause must not violate the Labor Standards Act (근로기준법).

3) Finally, “dismissal” must be a proportional disciplinary measure to the corresponding misconduct. If other less severe measures are able to achieve the desired disciplinary effect, “dismissal” cannot be justified.

Only when all three of the above requirements are satisfied can we say that there was “just cause” for disciplinary dismissal. In the “example situation,” neither dismissals were able to satisfy requirements #2 and/or #3.

In addition to the above requirements, the company must also follow the formal disciplinary procedures as outlined in the law + the rules of employment and/or the labor collective agreement. For instance, the person must be notified in writing well ahead of time. The notification itself must be specific enough in detailing the exact events/actions subject to discipline.

IV. Related Case

This does not mean you can never get fired for hitting a coworker. For instance, the Supreme Court of Korea saw the following disciplinary dismissal as lawful/valid:

A company fired an employee for having kicked and punched a superior in the face. The aggressor/employee suffered no injuries, while the victim/superior required three weeks of medical treatment. The victim pressed charges, and the aggressor was subsequently convicted of the crime of “Inflicting Bodily Injury.” See Supreme Court Decision of March 13, 1992, 91Da39559.

Generally speaking, disciplinary dismissal (for employing violence against a coworker) has a higher chance of being found “invalid” if:

1) Both parties suffered some injuries (i.e., mutual combat).

2) The “victim” suffered injuries requiring less than 3 weeks of medical treatment.

3) No one pressed charges, and/or no one was found criminally liable.

FYI, it should be noted that being found guilty of a crime could be an entirely separate cause for dismissal. The threshold there would be whether the conviction negatively affects job performance or the company in any way.

If you’d like to learn more about so-called “assault & battery law” in Korea, click here.

Thanks for reading!

‘Indecent Act’ as Defined by the Supreme Court of Korea

[Example Situation]

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Vivian (age 54) is an employee at a laundry factory in Gangwon Province. Mr. Seo (age 61) is Vivian’s supervisor. One evening after work, Vivian is told to deliver some items to Mr. Seo at his residence. Vivian successfully finds Mr. Seo’s residence and hands over the items to Mr. Seo himself. As she is about to leave, Mr. Seo tells her to come into his bedroom for a talk/chat. Vivian begrudgingly obliges. Once inside, Mr. Seo offers a can of beer and a cigarette. Vivian politely says no and gets up to leave. Suddenly, Mr. Seo grabs Vivian by the wrist and tells her, “Spend the night!” Vivian is frightened and runs away. The next day, Vivian files a criminal complaint against Mr. Seo.

Q: Is Mr. Seo guilty of the crime described in the above slide?


The above “example situation” is very similar to an actual case/decision that was widely reported earlier this month here in Korea. The decision received much attention because: 1) It was a Supreme Court decision + 2) The Supreme Court overturned the district/appellate court decisions. YTN news report below:

I. The Ruling: “Not Guilty!”

The Supreme Court of Korea reversed and remanded the appellate court decision which had found Mr. Seo guilty. The district/appellate courts had (both) found Mr. Seo guilty of the crime of “Indecent Act through Abuse of Occupational Authority, etc.” (업무상 위력 등에 의한 추행) and fined him 3 million won (벌금). But, the Supreme Court of Korea overturned the lower court decision(s), finding Mr. Seo “not guilty.”

For ease of understanding, it’s helpful to understand “indecent act” (추행) as “inappropriate sexual touching” (e.g., groping, forcible kissing…). This is not a “perfect” definition, however, because, strictly speaking, “physical contact” is not actually a requirement. For example, forcing another person to watch oneself masturbate in an enclosed area could also qualify. To learn more about “indecent acts” in general, click here.

For Mr. Seo, this case was not just a matter of paying a fine or having a criminal record. Had Mr. Seo been found guilty, he would have been registered as a “sex offender” and his personal information would have been disclosed on the internet.

II. Reasoning: “Not Sexual!”

In a nutshell, the Supreme Court of Korea felt that the act of grabbing Vivian by the wrist, in itself, was not “sexual” in nature. In the Court’s view, grabbing someone by the wrist, in itself, does not automatically constitute an “indecent act.” Whether an act constitutes an “indecent act” has to be determined in its overall context.

In order to qualify as an “indecent act,” the victim’s “right to sexual self-determination” has to be infringed. And in this case, the Court felt that Vivian’s wasn’t. In other words, the Court felt that the sole intent behind grabbing Vivian by the wrist was to stop her (physically) from leaving the room. The act, in itself, was not (objectively) capable of producing feelings of sexual humiliation or revulsion. Had Mr. Seo (gently) caressed her wrist, in contrast, things would/could be different.

Finally, Mr. Seo’s telling Vivian to “Spend the night!” could constitute “sexual harassment” (성희롱), but no law in Korea currently outlines criminal punishment for “sexual harassment.” Vivian could instead sue Mr. Seo and/or file a complaint to have him fired, etc… In Korea, “sexual harassment” normally refers to sexually inappropriate comments, suggestions, jokes, or innuendoes, not amounting to an “indecent act.” It’s easier to understand this area of (Korean) law using the “sexual harassment vs. indecent act” dichotomy framework.

III. Related Tidbits

1) “Indecent Act through Abuse of Occupational Authority, etc.” is a crime (somewhat) frequently reported here in Korea. For example, it was recently reported that a Kyung Hee University professor (in dentistry) had been indicted for this crime. The victim seems to be a female 1st-year resident.

2) In Korea, telling a subordinate: “Come here and pour me a drink!” could qualify as “sexual harassment.” Forcing “love shots,” meanwhile, could even qualify as an “indecent act.” The latter entails criminal liability.

3) In Korea, an “indecent act” perpetrated at a “crowded public place” could constitute the crime of “Indecent Act at Crowded Public Place” (공중 밀집 장소에서의 추행). For instance, inside subway trains, at concerts, in jjimjilbangs

4) In Korea, sending sexually inappropriate messages/emails could constitute the crime of “Obscene Act by Using Medium of Communication” (통신매체를 이용한 음란행위).

5) In Korea, filming another person’s body (in a sexual manner) against his/her will is a crime. The distribution or public display of such film/photo is also a crime. It’s a crime even when the person agreed at the time of filming but later expresses dissent! These crimes are called “Taking Pictures by Using Camera, etc.” (카메라 등을 이용한 촬영).

Thanks for reading!

Yes, You Can End up in Jail for Defamation (in Korea)

[Example Situation]

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Mr. Yoon (age 70) is furious that his (ex) son-in-law, Daniel (Job: Dentist in Seoul), has recently divorced his only daughter. Mr. Yoon is fully intent on “getting back” at Daniel. How dare he. So in order to thoroughly ruin Daniel’s career/reputation, Mr. Yoon starts making/spreading false accusations online saying that Daniel is facing multiple charges of massive tax evasion + that his whole “dental clinic business” is a pyramid scheme, etc… With these accusations, Mr. Yoon also circulates multiple pictures of Daniel’s dental clinic and Daniel too. Mr. Yoon goes about doing this anywhere/everywhere he can online (e.g., blogs, forums…). He even employs the help of Mr. Lee (age 28), telling him to write posts/emails confirming the false claims. Mr. Lee obliges. When Mr. Yoon and Mr. Lee’s online accounts are banned, they somehow obtain 30+ unused accounts to keep on going. This goes on for more than 2 months. Finally, Daniel files a criminal complaint against both Mr. Yoon and Mr. Lee. Both are indicted and found guilty. What type(s) of punishment can Mr. Yoon and Mr. Lee expect under Korean law?


The above “example situation” is very similar to an actual case that was widely reported a few days ago here in Korea. Links:

Link 1 – Link 2 – Link 3 – Link 4 – Link 5 – Link 6Link 7

I. The Ruling

The Seoul Central District Court found both Mr. Yoon and Mr. Lee guilty of the crimes of “Cyber Defamation” (사이버 명예훼손), “Interference with Business” (업무방해), etc.

In Korea, when defamation is perpetrated online (i.e., “Cyber Defamation”), the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. (정보통신망이용촉진및정보보호등에관한법률) is applied first, in place of the Criminal Act (형법). (In such case, the Criminal Act serves as a “backup.”) Please see the slide at the top of this post. Article 70(2) applies to this particular case.

To learn more about the crime of “Interference with Business,” click here.

1) Mr. Yoon was sentenced to 10 months in prison. No probation. This means he will actually serve time in jail. Behind bars!

2) Mr. Lee was sentenced to 4 months in prison (2 years probation). This means he will not actually serve time in jail.

II. Reasoning

1) Why is Mr. Yoon going to jail?

Basically, the gravity of the lies and the systematic/egregious manner in which they were spread (e.g., using other people’s accounts…).

+ That the lies affected the public at large too. By disseminating false information.

+ That the crime of “Cyber Defamation” was coupled with the crime of “Interference with Business.”

+ Finally, no “settlement” was reached with the victim. FYI, if a “settlement” is reached with the victim, the perpetrator is unlikely to be criminally punished. See Article 70(3) above.

2) Why is Mr. Lee not going to jail?

Mr. Lee acted at the behest of Mr. Yoon.

III. Additional Comments

As you know, Korean defamation law differs from that of the West (mainly) in that:

1) Defamation is a “crime” (not just a civil matter).

2) “Truth” is not a defense. (“The truth shall not set you free.”)

In Korea, defamation is both a criminal and civil matter. Defamation is a crime, and the victim can also sue the perpetrator. So here, Daniel could also sue Mr. Yoon and Mr. Lee.

A person found guilty of a defamation crime is most times punished by a fine (벌금) of a few hundred million won. A prison sentence (and actual prison time on top of that) is still somewhat rare. But not impossible, as we have seen here.

In Korea, “truth” is not a defense, but defamation based on lies is punished more severely. Also, defamation perpetrated online tends to be punished more severely as well. Finally, when defamation is coupled with another crime (like here), the punishment might not be limited to a fine or probation. In a way, Mr. Yoon’s actions (combined) amounted to the “perfect storm.”

Thanks for reading!

Taking a Drunk Coworker/Friend Home (in Korea)

[Example Situation]

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Danny (age 34), Dirk (age 31), and Paula (age 31) are coworkers at a digital broadcasting company in Seoul. One evening after work, the three decide to go for a drink. They eat and drink merrily. Once it’s time to head home, Danny and Dirk realize Paula is just way too drunk. She is half-asleep, speaking gibberish in a drunken stupor. Danny and Dirk are quite intoxicated too, but at least they can walk/talk. So, the two kindly decide to take Paula home first. The three take a cab and get off at an area near Paula‘s villa/apartment. But it’s dark, and Danny and Dirk have a hard time locating the place. (Being drunk themselves doesn’t help either.) Yet, they stubbornly try and try (for over an hour). They do so by taking turns in giving Paula a piggyback ride. And in the process, Danny and Dirk accidentally drop Paula (a total of) three times. As a result, she suffers skull fractures + cerebral hemorrhaging. It is also later revealed that Paula has permanently lost (almost all) hearing in one ear! She loses her job as well. Paula is alive but heavily traumatized. Paula (and her parents) sue Danny and DirkPaula also files a criminal complaint against them both. What outcome can she expect under Korean law?


The above “example situation” is very similar to a lower court case that was widely reported (about three months ago) here in Korea. FYI, the court decision came out around then, but the incident itself happened on March 15, 2012.

I. The Ruling

The Seoul Central District Court held for the plaintiffs (i.e., Paula and her parents) in the amount of (about) 116 million won (which is about USD 105,000). The defendants (i.e., Danny and Dirk) will have to pay 110 million to Paula, and 6 million to her parents. As you know, these are called tort damages.

In the criminal case, meanwhile, Danny and Dirk were both found guilty of the crime of “Bodily Injury by Gross Negligence” (중과실치상) and each fined 3 million won (벌금). To learn more about the crime itself, click here.

II. Reasoning

Initially, Danny and Dirk had no duty to take Paula home. But once they decided to do so, they then had a duty (based on the principles of trust and good faith) to take appropriate measures in keeping her safe. It was quite predictable Danny and Dirk (tired and drunk) could easily drop Paula and that she could suffer serious injuries as a result. The two should have sought other ways than taking turns in trying to give Paula a piggyback ride for more than an hour. According to reports, Danny and Dirk also failed to take appropriate measures afterwards. They even tried to prevaricate with regard to the exact cause of her injuries. But since Danny and Dirk were “only trying to help” and Paula got drunk voluntarily, Danny and Dirk were only found 60% responsible. Indeed, the 116 million amount was a reflection of that. The plaintiffs had asked for much more. In the criminal case, Danny and Dirk were found guilty of “Bodily Injury by Gross Negligence” for similar reasons.

III. The Bottom Line

In Korea, you normally don’t have an affirmative legal duty to take your drunk coworker/friend home. But once you decide to do so, you can/will be held responsible for failure to take proper care of him/her. Especially if he/she suffers injuries as a result. If you are too tired/drunk yourself, play it safe and call others for help. You can also call the police for help. They will help you.

DID YOU KNOW? The Supreme Court of Korea once said that “accompanying a stranger for a certain distance” does not create, in any way, a legal or contractual duty to protect him/her.

Thanks for reading!