Enforceability of ‘Liability Waivers’ in Korea: The Yangpyeong Paragliding Case

[Example Situation]

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Candace is a Canadian residing in Seoul, Korea. She likes the outdoors. One weekend, she decides to try paragliding in Yangpyeong, Gyeonggi Province. Once there, she is assigned an instructor named In-soo who also happens to own the place. He will be paragliding with her today. He teaches her the basics, and off they paraglide. Everything is fine until landing. While attempting to land, they collide with another paraglider, and Candace is very badly injured as a result. Candace soon decides to sue In-soo and the insurance company for an amount of about 180 mil won. As defense, In-soo and the insurance company claim Candace had signed a “liability waiver” (aka “release of liability”) document; therefore, she has forfeited any right to sue. It turns out she did sign her name on such a document. How is a Korean court likely to decide?


I. The Ruling

The example is similar to an actual case recently reported here in Korea.

The Seoul Central District Court ruled partially for the plaintiff:

1) The court saw the “liability waiver” as unenforceable.

2) The court found the defendants 50% responsible and ordered them to pay Candace about 83 mil won (USD 70,000).

II. Reasoning

1) In the court’s view, such “liability waivers” are valid only to the extent if interpreted to mean the service provider is not responsible for the customer’s own faults (i.e., solely the customer’s fault). The “liability waiver” in question cannot be interpreted to apply in instances where the service provider themselves are at (some) fault. Even if interpreted as such, that clause would be null and void because it would violate the “principles of good faith.”

2) So, if the “liability waiver” is unenforceable, the remaining question is: who was at fault + how much at fault. To the court, In-soo was at fault because (as the instructor) he should have taken the necessary precautionary measures to prevent such a collision. The court limited In-soo’s responsibility to 50% because he apparently did order Candace to hit the breaks at the last minute, and she failed to comply.


Side note: Candace did sign her name on such a document, but apparently in the wrong place. According to reports, Candace signed where she was supposed to simply write down her name, and she wrote down her name instead of an ID no. Interesting, but immaterial. Such a clause would be null and void regardless of whether she understood.

Oh, I found a nice video clip of what paragliding in Yangpyeong is like:

Thanks for reading!

Korean Law Regarding Sexual Groping: An Overview

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I. Understanding the Key Terms

In Korea, you may have heard of the term “indecent act” (추행). It basically refers to the crime of “(sexual) groping” or “inappropriate sexual touching.” I personally prefer the broader term “inappropriate sexual touching” because not only is there “groping,” but there is also “forcible grinding” and “forcible kissing.” Unlike groping, the latter two do not entail so much using one’s hand to achieve gratification.

Meanwhile, the term “indecent act” is actually a much broader term than (even) “inappropriate sexual touching.” An “indecent act” does not require physical contact! For example, forcing another person (e.g., by making threats with a knife) to watch one masturbate in an enclosed area (e.g., inside an elevator) constitutes an “indecent act.” An “indecent act” is a very broad term referring to any act objectively capable of producing feelings of sexual humiliation or revulsion that infringes upon the right to sexual self-determination of another person. Technically speaking, physical contact is not a requirement.

Nevertheless, an overwhelming majority of “indecent acts” are essentially groping or inappropriate sexual touching. When you hear about an “indecent act” in the news, it’s (almost) safe to assume they are referring to groping or inappropriate sexual touching. This is why I am not averse to using the three terms synonymously.

But, another reason why I prefer the term “inappropriate sexual touching” (over groping) is because those three words (i.e., touching, sexual, & inappropriate) encapsulate what a defendant must argue in order to exonerate him/herself. In essence, a defendant must argue:

1) “I did not even touch!” or

2) “I touched, but it wasn’t sexual!” or

3) “I touched and it was sexual, but there was consent!”

Any one of these arguments, when successful, is enough to find a defendant not guilty (i.e., a full defense). FYI, defenses such as “I was drunk!” only offer a partial defense.

DID YOU KNOW? In the “masturbation example” above, the key/operative word is “enclosed.” Had the man publicly masturbated in an open area, the crime would have been either “Public Obscenity” (공연음란) or “Obscene Exposure” (과다노출). The fact that it took place in an enclosed area implies that the victim could not flee the scene, and therefore her right to sexual self-determination was infringed.

DID YOU KNOW? Before Korea’s laws on rape became gender-neutral in 2013, a woman raping a man would constitute the crime of “Indecent Act (by Compulsion).” Male-on-male rapes as well. By definition, a man could not fall victim to the crime of rape. This has all changed now.

DID YOU KNOW?

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“Indecent act” in Korean is “추행.” “행” means “conduct” or “act.” “추,” on the other hand, is closer to “ugly, hideous, unsightly” than “indecent.” In the news, the term “성추행” is preferred over just “추행.” “성” means “sex or sexual,” so “성추행” essentially means “sexually indecent act.” These all refer to groping or inappropriate sexual touching.


II. Types of “Indecent Acts” in Korean Law

The term “indecent act” is a term I (and other people) use generally. No crime is actually named just “indecent act.” The official names are much longer. Longer because they usually specify the manner in which an “indecent act” is perpetrated. The following are the official names of all “indecent act” crimes and their corresponding (criminal) punishments. Prison sentences are in red, and criminal fines in orange.

1. “Indecent Act at Crowded Public Place” : max 1 year or max 3 mil won

2. “Indecent Act through Abuse of Occupational Authority, etc.” (Victim is under one’s protection or supervision by reason of business, employment or other relationship) : max 2 years or max 5 mil won

3. “Indecent Act through Abuse of Occupational Authority, etc.” (Victim is held in one’s custody after being detained in accordance with the law) : max 3 years or max 15 mil won

4. “Indecent Act by Compulsion” / “Quasi Indecent Act by Compulsion” (Victim is 19 or older) : max 10 years or max 15 mil won

5. “Indecent Act by Compulsion” / “Quasi Indecent Act by Compulsion” / “Indecent Act by Authority or Fraudulent Means” (Victim is ages 13-18) : min 2 years of fixed term or 10-30 mil won

6. “Indecent Act by Compulsion” / “Quasi Indecent Act by Compulsion” / “Indecent Act by Authority or Fraudulent Means” (Victim is 12 or younger) : min 5 years of fixed term or 30-50 mil won

7. “Indecent Act by Compulsion” / “Quasi Indecent Act by Compulsion” (Victim is a disabled person) : min 3 years of fixed term or 20-50 mil won

8. “Indecent Act by Authority or Fraudulent Means” (Victim is a disabled person) : min 1 year of fixed term or 10-30 mil won

9. “Indecent Act by Compulsion” / “Quasi Indecent Act by Compulsion” (Victim is a family member or relative) : min 5 years of fixed term

Most of the translations above, I went by the KLRI (Korea Legislation Research Institute) translation. I usually go by their translation mainly because coming up with my own could potentially create confusion to the English reader. One could mistakenly think that KLRI and I are referring to two different/separate things, when actually we’re not. Indeed, one problem with KLRI translations is that a Korean legal term is sometimes translated into different/separate English terms for no reason. I suspect this is because the translations are done by several different people with no one person to coordinate everything.

FYI, I have translated “위력” as “Authority.” “Quasi” is a translation of “준” which refers to instances where the victim is already incapacitated (e.g., drunk, asleep…), and the perpetrator takes advantage of that. “Compulsion” is a translation of “강제” which refers to situations where violence or intimidation is used as a means to perpetrate the actual crime (i.e., two-step process: intimidation/violence –> indecent act). Oh and, “fixed term” basically means it cannot be life imprisonment.

One thing I wanna say about “Indecent Act by Compulsion” (강제추행) is that even though the crime specifies intimidation or violence as a necessary means, these means are not really necessary. This is because the Supreme Court of Korea has interpreted that the preliminary act of intimation/violence and the actual indecent act can take place simultaneously! When a victim is taken by surprise, the “indecent act” itself also constitutes “violence.” I think the original drafters failed to see that (unlike rape) groping usually takes place suddenly and instantaneously (i.e., not a two-step process). To learn more, click here.


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Homer: The only reason we don’t move out of this dung hill is because of my court-ordered ankle bracelet. (His ankle bracelet beeps) I’m here, quit bugging me!

Marge: Why do you always have to show that to company?

Homer: It’s a conversation-starter.


One must keep in mind: On top of the above-mentioned punishments, a person found guilty will also be registered as a “sex offender” and probably be ordered to attend many hours of “sex offender treatment program.” His/her personal info can be disclosed on the internet. In egregious/habitual cases, a person found guilty might also be ordered to wear a GPS ankle bracelet or even undergo chemical castration!

A foreigner who is convicted of an “indecent act” crime will likely be denied re-entry to South Korea. An innocent person should never admit to guilt even when his/her employer is willing to pay the criminal fine.

DID YOU KNOW? A person who commits an “indecent act” inside a car could face revocation of his/her driver’s license. A professor who commits an “indecent act” (to a student) could legitimately be fired.

DID YOU KNOW?

Earlier this month, a British female exchange student here in Korea accused a subway station employee of molesting her. She originally called the police saying she had been kidnapped by other foreigner students. The police came to her rescue and took her to the nearest subway station. Not long after, she again called the police (this time) saying an employee there forcibly kissed her, touched her… The employee vehemently denies the accusation saying he found her crying in the station, so he only tried to help. There was no CCTV there, but the employee claims a cleaning lady was there to verify. The case is under investigation, and the parties are said to undergo a polygraph.

DID YOU KNOW? A “criminal complaint” is not a requirement for prosecuting/punishing someone for any “indecent act” crime. So for instance, if an undercover cop catches someone red-handed in the subway, the police can prosecute that perpetrator regardless of whether the victim’s wishes to seek punishment. This also means the perpetrator will still be punished even if some sort of (monetary) settlement is later reached between the perpetrator and the victim. When a settlement is reached, the perpetrator usually ends up with a lighter punishment. But, punishment itself cannot be avoided. Same with all rape crimes.


III. Recent Court Cases Worthy of Note

1. The Seoul High Court recently found a man not guilty of inappropriate sexual touching (and other charges). He had originally been charged with the crimes after he started groping a co-worker’s girlfriend who was spending the night at this home (in one of his rooms). The man slowly started groping her thinking she was asleep. In fact, it was established in court she was not asleep; she was just pretending to be asleep. The man was found not guilty because: a) She was not asleep, so the crime cannot be “Quasi …” + b) The groping started slowly and gradually (e.g., first checking to see if she was asleep) which means she had ample time/opportunity to say no (which she didn’t) + she was not taken by surprise. This case is in the Supreme Court now. (Link)

2. The Seoul High Court found a man in his 30s guilty of inappropriate sexual touching. He had been charged with the crime after he touched/caressed the back of the hand + cheek of an 8-year-old girl. This happened in the playground of an apartment complex. The man was sentenced to 3 years in prison (4 years probation). What was key in this case was that the victim stated that the touching was “not really pleasant to her.” The man was, however, able to avoid wearing a GPS ankle bracelet because he had no priors. (Link)

3. The Ulsan District Court found a man in his 50s guilty of sexual inappropriate touching. He had been charged with the crime after he touched a 10-year-old girl’s buttocks three times. This crime also happened within the premises of an apartment complex. The man was fined 40 million won, ordered to attend 120 hours of “sex offender treatment program,” and his personal info is to be disclosed for 2 years. The man committed this crime while he was on probation for a similar crime. But, reports imply he was able to avoid a prison sentence because a settlement was apparently reached with the victim’s family. (Link)

4. The Daegu District Court found a man in his 60s not guilty of inappropriate sexual touching. He had been charged with the crime after he touched/slapped a (young) woman’s thigh, while on the subway. He touched her thigh once while telling/ordering her to uncross her legs. It seems he was trying to scold her that dress was too short/revealing. The court here ultimately felt there was intent to grope the woman. (Originally, the lower court had found him guilty and fined 1.5 million won.) FYI, the man’s defense here would have been the “I touched, but it wasn’t sexual!” defense I talked about earlier. (Link)

5. The Daegu District Court found a man in his 40s not guilty of inappropriate sexual touching. He had been charged with the crime after he suddenly put his hands inside the armpits of a female coworker (a teacher) during a get-together dinner (at a restaurant). He did so while saying “Let’s go for a 2nd round (of drinks)!” The man was found not guilty mainly: a) Because whether he intended to “grope” was still unclear + b) Because of conflicting witness accounts (of other coworkers, the restaurant owner).  Originally, the lower court had found the man guilty mainly because the female co-worker expressed disapproval right away + he publicly apologized to her. (Link)

6. 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. 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)

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

8. The Supreme Court of Korea reversed and remanded an appellate court decision which had found a male physical therapist guilty of inappropriate sexual touching. 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. Earlier this month, the Daejeon District Court found a high school teacher guilty of inappropriate sexual touching. He had been charged with the crime after he habitually molested 23 of his students from 2013 to 2014. The court sentenced him to 18 months in prison (no probation). This means he will actually serve time in jail. He was also ordered to attend 40 hours of “sex offender treatment program.” (Link)

10. The Seoul Northern District Court found a man in his 40s guilty of inappropriate sexual touching. He had been charged with the crime after he habitually molested the two young daughters of his cohabitating girlfriend. He was sentenced to 2 and half years in prison (no probation). This means he will actually serve time in jail. He was also ordered to attend 80 hours of “sex offender treatment program.” But, the prosecution’s request for a GPS ankle bracelet was denied by the court. The court denied it saying: he had no priors, he no longer lives with the victims, and the assessment report for possibility of recidivism did not come out as high. FYI, GPS ankle bracelets and chemical castration require the request from prosecution. The court cannot just order. (Link)

TRIVIA: The first Korean celebrity to wear a GPS ankle bracelet was released from prison a couple of weeks ago (after serving out his time). He will have to wear it for 3 years. Do you know who he is?


IV. Afterword

If you are a defendant and you know yourself to be innocent, do not at any point admit to any guilt. Be consistent in your denials from beginning to end. Point out any inconsistencies in the accuser’s statements. Even if you lose a case, by all means appeal. Don’t give up.

If you are a victim, clearly express disapproval right away and report the crime ASAP. Do not wait a few days to report. Demand an apology. Also, do not exchange any friendly text messages with the perpetrator. Be consistent and specific in your allegations from beginning to end.

At any rate, it’s generally not a good idea to go ahead and touch someone (you don’t know).

Thanks for reading!

Reddit Discussion Webpage: http://redd.it/3ejg8e

Cyclists vs. Pedestrians: Cyclist’s Liability under Korean Law

[Example Situation]

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On the weekend, Lisa likes to ride her bicycle near the Han River. There is a bicycle path there, and she feels relatively safe. Right beside the bicycle path, there is also a separate path for pedestrians (similar to the above photo). Lisa feels there is no better place to ride a bicycle in Seoul. One Saturday afternoon, Lisa is riding her bicycle at 20 km/h on a bicycle path. Everything is fine until an old lady (who was walking on the pedestrian path) suddenly darts into the bicycle path! Lisa has no time to avoid the lady and hits her head-on. As a result of this collision, the old lady suffers a serious brain injury. Even after multiple surgeries, she is unable to talk freely + she is left virtually paralyzed on her left side. The old lady and her family sue Lisa for an amount of KRW 330,000,000 (USD 293,000). How is the Korean court likely to decide?


I. The Ruling

The above example is very similar to an actual case recently reported here in Korea. (YTN news report above.)

The Seoul Central District Court ruled for the plaintiffs, but found the defendant only 40% responsible. This means the defendant (i.e., Lisa) will have to pay KRW 100,000,000 (USD 88,800).

II. Reasoning

Even though bicycle paths are only for bicycles, the court cited the following duty in why it found (partially) for the plaintiffs:

Road Traffic Act – Article 48 (Duties of Safe and Eco-Driving)

(1) Every motor vehicle driver shall correctly operate the steering system, brakes and other devices of his/her motor vehicle and shall not drive his/her motor vehicle at a speed and in a manner that endangers and impedes other persons according to the traffic conditions of the relevant road and the structure and performance of his/her motor vehicle.

(2) Every motor vehicle driver shall endeavor to reduce fuel consumption and carbon emissions by driving in an environmentally-friendly and economical way.

– Translation by KLRI (Korea Legislation Research Institute)

In Korea, people also like to refer to Article 48(1) as “전방주시의무.” It refers to the duty of the driver/rider to “always look ahead and drive/ride defensively.” FYI, bicycles are considered as “motor vehicles” when being ridden.

DID YOU KNOW? Most bicycle insurance policies (here in Korea) only cover personal injuries to the cyclist him/herself. Very few cover injuries (to others) or bicycle theft.

III. What This All Means

I generally feel this decision was unfair to the defendant. After all, the defendant was riding at around 20 km/h (the max speed allowed along a river/stream), and the accident occurred on a bicycle path where pedestrians are not normally allowed.

But I only say “generally” because there might be particulars to this case we are unaware of. As Sherlock Holmes likes to say, “There is nothing so important as trifles…”

At any rate, the crucial factor in these types of cases is whether you can successfully convey to the court/judge there was absolutely nothing you could have done to avoid the collision. This is why, I think, installing a “black box” on your bicycle is so important nowadays. With no hard/conclusive evidence, Korean courts are inclined to find the driver/rider partially at fault (in Pedestrian v. Driver/Rider cases).

My other takeaways from this case:

1) When there is a pedestrian path right next to a bicycle path, you must ride slower than normal/allowed.

2) Always assume any pedestrian ahead can/will suddenly drift in and out of a bicycle path.

IV. My Thoughts

Having said all this, I still do not feel Korea is a very bicycle-friendly country. When asked if cycling in Korea is “safe,” I normally tell people not to ride unless they really like to. Cycling on bicycle paths is relatively safe, but cycling on the road (alongside cars) still feels dangerous. I am generally reluctant to put my safety into the hands of car drivers here. There needs to be more bicycle paths, but the attitude of car drivers needs to change as well. The attitude that “Cars always come first.”

To learn more about bicycle law in Korea, click here.

Thanks for reading!

Two Guys, a Girl and a Korean Motel Room…

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A couple of weeks ago, a female U.S. soldier (stationed here in South Korea) was arrested for having attacked (and caused injury to) an old motel owner couple. She attacked them after the owner couple had refused to rent a motel room to her (and her entourage consisting of 1 other female and 2 other males).

The question is: “Is it illegal in Korea to rent a motel room to a group consisting of 2+ adult males and 1+ adult female(s)?”

I would say no, it is not illegal. (Korean) motel owners are, in fact, choosing to do that because they can. There is no Korean law which explicitly forbids motel owners from renting a room to such a group. Conversely, there is no law which obligates owners to rent a room to such a group. If there is no law which specifically forbids or penalizes something, it is normally allowed. FYI, “threesomes” (i.e., ménage à trois) are not illegal under Korean law. FYI, taxi drivers (in Korea) cannot arbitrarily refuse passengers.

I have never been in hospitality, so it is hard (for me) to say exactly why some motel owners choose to implement such a policy. Many people think it’s because owners are afraid of the possibility that such a group might be implicated in some illegal/criminal activity. “What if the female (in the group) later alleges rape?” I once heard someone ask. I think some owners just like to assume “something is rotten in Busan” and don’t wanna have to deal with any possibility of their motel being implicated in illegal/criminal behavior. I’m guessing such (room) requests are very few and far between that it does not really hurt their business to turn them all down.

DID YOU KNOW? In order for a motel owner to be found guilty of “aiding and abetting rape,” he/she would have to have been in cahoots with the rapist(s). It is a crime, of course, for motel owners to knowingly arrange/allow criminal activities such as rape/prostitution/gambling to take place in their premises.

The only Korean law (that I could find) which sort of relates to today’s topic is Article 3.2 of the Act on the Regulation of Amusement Businesses Affecting Public Morals (풍속영업의 규제에 관한 법률). Under Article 3.2, motel owners must not allow/arrange “lewd acts” (음란행위) to take place in their premises. It is a crime to do so. (See Article 10.) FYI, lodging is classified as an “amusement business affecting public morals.”

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Are threesomes “lewd acts?” In my opinion, it would hard to classify them as such. Even if they could be classified as such, just because two males and a female show up asking for a room does not, of course, automatically mean they are about to engage in a threesome.

To give you an example of what does constitute a “lewd act,” a night club owner was once convicted of this crime after having a dancer dance (for the guests) naked while wearing a fake penis and simulating sex (Supreme Court Decision of September 8, 2011, 2010Do10171).

Thanks for reading!

Taking Sexually Explicit Photos Of Another Person (In Korea)

[Example Situation]

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In Seoul, a man goes about secretly taking pictures of women’s legs. He does so using his smartphone, only in public places. He targets random women’s legs clad in stockings or skinny jeans. One day, he is caught in the act. It turns out: From November 2013 to May 2014, he took pictures of 49 random women’s legs. The man is soon indicted for the crime of “Taking Pictures by Using Camera, etc.” (See Article 14(1) above.) What punishment, if any, can the man expect under Article 14(1)?


I. The Ruling

The above example is similar to an actual case recently reported here in Korea. The Seoul Northern District Court found the man not guilty.

II. Reasoning

Simply put, the court felt the man’s pictures fell short of causing “sexual stimulus or shame.” That the pictures were all taken in public places (e.g., in the subway/streets) also seems to have played a role.

III. “Pictures of another person’s body, which may cause sexual stimulus or shame…”

According to the Supreme Court of Korea, the factors below should all be taken into consideration when determining “pictures of another person’s body, which may cause sexual stimulus or shame…” (Supreme Court Decision of September 25, 2008, 2008Do7007):

1) Whether the body part in the picture is a body part objectively capable of causing sexual stimulus or shame to an average person.

2) How the victim was dressed and how revealing the clothes were.

3) The defendant’s intent and/or purpose in taking the pictures.

4) Where the pictures were taken, the angle in which they were taken, and the distance between the camera and the victim.

5) Whether the pictures highlight/accentuate a certain body part.

These factors should be taken into consideration collectively, as a whole. But even with knowledge of these factors, it’s never easy to predict what decision the court will render. It’s sort of like the U.S. Supreme Court’s “I know it when I see it” test for determining “obscenity.”

I would say: Less taken at an angle + More clad the body part -> The more likely an acquittal is. Which is why, I think, the man was acquitted.

In contrast: A man once was found guilty of this crime after he secretly took pictures of women’s legs as they were just about to use a squat toilet. See Supreme Court of Decision July 24, 2014, 2014Do6309.

DID YOU KNOW? Earlier this year, a man in Oregon (U.S.A.) was acquitted after he took upskirt photos of a teen in a Target store. Such conduct would be enough to find a person guilty here in Korea.

IV. Additional Tidbits

1) A person found guilty of this crime will be registered as a “sex offender.” His/her personal info can be disclosed on the internet. NOTE: A “foreigner” who is registered as a “sex offender” may not be able to re-enter Korea (once he/she leaves).

2) Unlike a person found guilty of groping (aka “indecent acts”), a person found guilty of this crime cannot be ordered to wear an ankle bracelet.

3) Pressing “record” constitutes a completed form of this crime (i.e., not an attempt) even if the video fails to be “saved” because the recording was aborted midway (Supreme Court Decision of June 9, 2011, 2010Do10677).

4) Article 14(2) was recently added. (FYI, there was no English version, so I had to translate this part myself.) In a nutshell, one cannot distribute sexual photos/videos of another person w/o consent even if filming itself was “okayed” at the time.

Thanks for reading!

Recent Defamation Cases 1

[Example Situation]

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In 2012, Mr. Kim (40s, Seoulite) undergoes surgery at a plastic surgery clinic to get rid of his double eyelids. The procedure involves making a cut in the eyelid and injecting fat there. The surgery does not go very well. Two years have passed, but Mr. Kim still has scars left on his eyelids. After much thought, Mr. Kim decides to receive a second surgery (at the same clinic) to rid the fat. But this surgery does not go well either. During the procedure, Mr. Kim is poked (twice) in the eye by an injection needle! Mr. Kim is now traumatized and furious. He is intent on letting everyone in Korea know about what the clinic has done to him. To this end, Mr. Kim goes about posting his story on many public websites a total of 49 times. (In the posts, he reveals the name of the clinic and even tries to recruit people willing to file a class suit against the clinic.) FYI, none of Mr. Kim’s posts are ever outright lies. Some exaggerations, but by and large true accounts. Soon, the clinic files a criminal complaint, and Mr. Kim is indicted for “Cyber Defamation.” Trial begins.

Q: What punishment, if any, can Mr. Kim expect under Korean law?


I. The Ruling

The above example is very similar to an actual case recently reported here in Korea. The Seoul Central District Court found Mr. Kim guilty of “Cyber Defamation” (via a true statement) and fined him 3 million won.

Note 1: In Korea, defamation is a crime, and “truth” is not a defense.

Note 2: When defamation is perpetrated online, the crime is “Cyber Defamation” under Article 70 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. (정보통신망이용촉진및정보보호등에관한법률). In this case, Article 70(1) applies because the crime is “Cyber Defamation” via a true statement. Article 70(2) is for “Cyber Defamation” via a false statement.

Note 3: Although “Cyber Defamation” is a crime, the perpetrator can avoid punishment if a settlement is reached with the victim. A prosecutor cannot proceed further once the victim has made clear that he/she does not wish the perpetrator to be punished. See Article 70(3).

DID YOU KNOW? “Cyber Defamation” (via a true statement) is often perpetrated by posting a photo (not words). An unaltered photo of someone doing something is, in fact, a “true statement.”

II. Reasoning

The court did acknowledge that Mr. Kim’s posts were by and large true. Indeed, that’s probably why Mr. Kim received just a criminal fine (as opposed to a prison sentence). A criminal fine is called “벌금.”

The court did, however, see Mr. Kim’s posts as defamatory. These factors seemed to have played key role:

1) That Mr. Kim posted his story on public websites where random people (not just plastic surgery patients) could easily read.

2) That Mr. Kim posted numerous times.

3) That Mr. Kim went so far as to employ the help of an online marketing firm to systematically propagate his story.

III. “Purposely to Disparage” vs. “Solely for the Public Interest”

Unlike offline defamation under the Criminal Act (형법), “Cyber Defamation” (via a true statement) always requires the element of “purposely to disparage.”

Normally, posting something “solely for the public interest” automatically negates the above “purposely to disparage” element.

So, a defendant such as Mr. Kim would have to argue what he did was “solely for the public interest.” I’m sure the argument was made.

Here, that argument was not recognized because the court probably felt Mr. Kim’s actions went overboard. His actions, as a whole, were probably seen as being (at least) partly retaliatory. They weren’t “solely for the public interest.” Had he posted just on “relevant” websites and done so less “systematically,” the outcome could have been different.

For instance, consider these cases:

1) The “solely for the public interest” defense was recognized in a case where an angry plastic surgery patient posted simply a one-liner online comment (Supreme Court Decision of May 28, 2009, 2008Do8812).

2) Likewise, an angry postnatal-care center user who posted her story 9 times, but only on postnatal-care center info websites was found not guilty (Supreme Court Decision of November 29, 2012, 2012Do10392).

IV. The Lesson?

In Korea, if you are planning to post angry reviews (about an establishment), try to post them on “relevant” websites (as opposed to everywhere you can). The latter could be interpreted as being “purposely to disparage” rather than “solely for the public interest.”

V. My Thoughts

I don’t think true statements should constitute the crime of defamation. Defamation being a “crime,” is also very debatable. “Freedom of speech” issue aside, anything that inhibits the flow/exchange of information and ideas makes Korea less “competitive.” Creativity and innovation are less likely to take place. I often feel openness and transparency are now Korea’s only “exit strategy.” Well, these are my thoughts only.

Thanks for reading!

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 (largely) 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.

Regardless of age, rape perpetrated against a disabled person or a relative is punished more severely as well.

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!