Reading My Wife/Husband’s Email Without Permission: Is It a Crime (in Korea)?

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ANSWER: Yes, it is a crime. Below are the relevant (Korean) laws.


Act on Promotion of Information and Communications Network Utilization and Information Protection, etc.

(정보통신망 이용촉진 및 정보보호 등에 관한 법률)

Article 48(1): No one shall intrude on an information and communications network without rightful authority for access, or beyond permitted authority for access.

—> Max criminal punishment: 3 years or 30 mil won

Article 49: No one shall damage another person’s information that is processed, stored, or transmitted through an information and communications network; nor shall anyone infringe, misappropriate, or divulge another person’s secret.

—> Max criminal punishment: 5 years or 50 mil won

– Translation mostly by KLRI (Korea Legislation Research Institute)


Article 48(1) deals with just “accessing/reading,” while Article 49 deals more with “tampering/divulging.” Hence the harsher punishment.

But either way, the actual punishment most times is a (criminal) fine. Late last year, a man (here in South Korea) was fined 2 mil won after he secretly read, copied, and divulged (to friends) his wife’s emails and Facebook messages. (His wife was having an affair, it seems.)

But here is the important part: Even such evidence illegally acquired can be admitted in civil suit. This is especially important here in South Korea because a unilateral request for divorce is not easily granted. You need to prove your spouse is/was mainly at fault for having ruined the marriage (e.g., marital infidelity). Proving infidelity is also important because you can simultaneously sue for “psychological pain and suffering.” Against both your spouse and his/her lover. Adultery is no longer a crime in South Korea, but it still remains a tortious act. That’s why it’s incorrect to say, “Adultery is legal in South Korea.”

FYI: In the case I mentioned earlier, the man was fined (as much as) 2 mil won because he went so far as to divulge that information. Had he just kept it to himself (to use as evidence in court), the criminal fine would have been much lower. He could even have received a deferred sentence. Meaning, the crime can be expunged after a period of time.


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“May divorce be with you.” (Only if you feel it’s necessary.)


Do you remember your first email account? The first email account I ever had was one given to me when I was a high school student in Beijing. After that, I used HoTMaiL mostly. I now use Gmail and Naver Mail. In Naver Mail, one neat feature is the “mandatory delay” option when sending. I set mine up so that every time I click “send,” the email is actually sent 5 minutes later, and I can rescind anytime before that.

읽어주셔서 감사합니다!

Example of Unlawful Arrest in South Korea

[Example Situation]

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Mr. Kim (age 45) and his girlfriend live together. He is sometimes abusive towards her. One night, the police receive a call from his girlfriend. She says his boyfriend, Mr. Kim, is using violence against her. The police show up at their home. Mr. Kim doesn’t like it one bit. Unarmed, Mr. Kim moves toward the officers and awkwardly throws a couple of punches (which don’t land). The officers take out a Taser and give him warning. Mr. Kim can’t believe it! That they would tase him!! He moves away. Lying next to his daughter, Mr. Kim curses at the officers and now taunts them to “take their best shot.” So, they tase him + read him his rights. Even as he’s being arrested, Mr. Kim tries to resist.

Q: Is this an unlawful arrest under (South) Korean law?


I. The Ruling: Unlawful!

The example is similar to a case reported here in South Korea.

On January 11th, the Supreme Court of Korea affirmed an appellate court decision which had found such an arrest as unlawful.

In the case, it was actually Mr. Kim that was on trial for “Obstruction of Performance of Official Duties” under the Criminal Act (형법):

Article 136(1): A person who uses violence or intimidation against a public official engaged in the performance of his/her duties shall be punished by imprisonment for not more than 5 years, or a fine not exceeding 10 million won.

But, an arrestee can be found guilty of this crime only if the arrest itself was lawful. That’s why, determining whether the arrest was indeed lawful was vital to the case. That’s also why, Mr. Kim was acquitted.

DID YOU KNOW? You can invoke self-defense against unlawful police arrests. The problem: it’s hard to tell (at the time) whether a certain police measure/action is lawful or not. Each situation is different.

II. Reasoning: “Necessity” Not Met!

Here in South Korea, a citizen’s arrest (i.e., a warrantless arrest that anyone can make) can be made when it’s fairly clear that: a) a crime is (right now) being committed, or b) a crime has just been committed.

But there’s a catch. According to the Supreme Court of Korea, such an arrest can be made only when there is indeed a need for it. Meaning specifically, there’s fear of the suspect fleeing or tampering with evidence (Supreme Court Decision of May 26, 2011, 2011Do3682).

In our case, it was quite clear a crime had just been committed. At the time, Mr. Kim’s girlfriend had disheveled hair and showed abrasions. The problem was the “necessity” requirement. In the Court’s view, there wasn’t a pressing need to arrest Mr. Kim like that: 1) Mr. Kim was at his home. + 2) His actions were not so threatening as to warrant Taser use.


III. Funny Story & Fun Tidbit (About Handcuffs)

Funny Story: The plastic cuffs (at the top of this post) are mine. I first tried to purchase one at a mom-and-pop stationery store near a school. When I was little, I used to buy such toys there. So, one day, I went in and asked for cuffs. But the owner said he had no such things. As I was leaving, I could see two kids giggling. I ended up buying the cuffs online.

Fun Tidbit: Earlier this month, the police announced they would soon start using “cuff covers.” This was in response to a recommendation made by the (Korean) National Human Rights Commission back in 2011.

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David Bowie, RIP. “I’ll be back before it flowers again… Cross my heart.”

When Does Receiving Money from a Parent Become Criminal for a Teacher (in Korea)?

[Example Situation]

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Mr. Shin (age 48) is a 4th grade teacher at a private elementary school in Seoul. The school is located in a relatively affluent neighborhood. In the last six months, Mr. Shin has secretly received around 4.6 mil won (USD 3,800) from the parents of two students in his class. (Some of it he received in cash, some in gift certificates.) In return, the parents requested the following: 1) That Mr. Shin not write down their children negatively in the school records; 2) That their children not be discriminated against at award ceremonies; and 3) That their children not be scolded for failing to do homework properly. All is well until the parents start to realize that Mr. Shin is not really living up to his side of the bargain. So they report him to the Seoul Metropolitan Office of Education. Soon, Mr. Shin is indicted under Article 357(1) of the Criminal Act (형법), and trial begins. How is a Korean court likely to decide?


I. The Ruling

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

The Seoul Central District Court found Mr. Shin not guilty. But the prosecution has decided to appeal this decision. (In Korea, not guilty decisions can also be appealed.)

Side Note 1: The Seoul Metropolitan Office of Education is asking the school to dismiss Mr. Shin, but he has only been suspended for 3 months.

Side Note 2: Bribing is also illegal and a crime, but I’m not sure the parents were indicted. (Well, they would have been found not guilty.)

II. Reasoning

The parents’ requests did not amount to “unlawful solicitation” under Article 357(1) because the requests did not violate “social norms.” In other words, the requests were ones that an average (Korean) parent could (acceptably) make. The court interpreted the requests more in the vein of generally asking a teacher to “look after one’s kid well.”


DID YOU KNOW? In Korea, such (quasi) bribe/tip given to teachers is called chonji. For fun, I looked it up on Naver. Look at definition #3.

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It says: “Money given to show one’s heartfelt gratitude.” “Normally given to teachers or reporters.” I’m sure chonji did not start out as out-and-out bribes. But now, chonji has become something of a dirty word, I think.


III. The Double Standard for Public School Teachers

There has been much criticism regarding the “not guilty” decision. Aside from the fact that it’s (morally) reprehensible for teachers to receive money, many point to the double standard for public school teachers.

Had Mr. Shin been a public school teacher, he most likely would have been found guilty under Article 129(1) of the Criminal Act. In Korea, public school teachers are held to a much stricter standard with regard to bribes. That’s because Article 129(1) applies instead of Article 357(1). (Note 1: When the amount is 30 mil won or higher, an even stricter law applies. Note 2: Starting from September 2016, if a public servant or his/her spouse receives – for no apparent reason – an amount of 1 mil won or higher, that public servant will face criminal punishment.)

If you read Article 129(1), you will quickly notice there is no “unlawful solicitation” requirement. That makes all the difference. In 2014, the Seoul Western District Court found a public school teacher guilty of receiving 1.6 mil won (under similar circumstances to Mr. Shin).

Final Comments: I cannot say Mr. Shin’s acquittal won’t be overturned by the appellate court. When the prosecution appeals a “not guilty” decision, there is at least some belief that the case can be overturned. I was able to attend both public and private schools here in Korea, and (for me) there didn’t seem to be much difference. I was spanked in both.

Thanks for reading!

Do False Confessions Still Occur in South Korea?

[Example Situation]

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Lee (age 25; low IQ), Hwang (age 22), and Bang (age 28; IQ 50) are hoodlums who live in Gangwon-do. The trio sometimes hang out together. One night, they want to go a nightclub but have no money. They decide to rob at all costs. In Sokcho City, they spot an unsuspecting man/tourist returning to his condominium. They follow the man up to his room on the 3rd floor. They ring the doorbell and say it’s the staff from downstairs. When the man opens the door, they punch and stab him + take all his money. But they also notice a woman inside; they hit her over the head with a fire extinguisher. Once she’s knocked out, the three decide to take the man (still alive and resisting) up to the rooftop and push him over the edge. They do, and the man is dead. They take the body and bury it at a cemetery nearby. A few months later, all three are caught (by the police). They all confess. Trial begins, and they receive life imprisonment, 20 years, and 7 years, respectively. They appeal. The appellate court finds all of them, not guilty! This time, the prosecution appeals. (Note: In Korea, not guilty decisions can also be appealed.) But the Supreme Court agrees with the appellate court. They are released.

Q: How were they acquitted? What in the world happened??


I. The Sokcho Condo Murder-Burial Case (2002노1160)

The above example is based on the Sokcho Condo Murder-Burial Case (속초 콘도 살인 암매장 사건). It’s a famous case here in Korea. Basically, it was revealed that the police/prosecution had fabricated the entire thing. None of the crimes (described above) ever occurred!

1. Why the Conviction: A Rare, Unlucky Coincidence

In October 2001, Lee and Hwang are arrested for assault/robbery (a crime unrelated to the above.) During separate interrogations, police officers decide to play a hunch and accuse Hwang of murder (e.g., “So, Lee tells me you also killed a person once…”). Hwang vehemently denies the accusation. He says instead, “Lee is the murderer, not me.” Jackpot! The officers think they have something and keep pressuring the two. Under pressure, Lee and Hwang admit to murder and implicate a third member, Bang. Bang is arrested as well. Now, all three confess they had once jointly murdered someone and that the body is buried at a cemetery in Sokcho. When asked to describe the victim, they just say he was wearing a Fila T-shirt. The police get to work and finally stumble upon an unidentifiable body. (Note: The body is found not exactly where it was said to be.) But lo and behold, the body is clad in a Fila T-shirt! The three are indicted, and the trial court finds them all guilty. They appeal.

2. Why the Acquittal: Too Much Conflicting Evidence

The appellate court (The Seoul High Court) overturned the guilty decision. Even though a body was found (in that cemetery + wearing a Fila T-shirt), the story, as a whole, just didn’t add up. For instance:

1) According to the indictment, the murder took place sometime in July 2001. But the unidentified corpse was found in a severely decomposed state indicating that it must have been buried for at least a year.

2) Yes, the body was clad in a Fila T-shirt, but overall the clothes worn were fall/winter clothes. In July??

3) The victim had fallen from the rooftop, but there was nothing to indicate any type of bone fracture.

4) The body was found deep underground. Interestingly, there was a convenient ditch nearby. Did they really have the time and patience to dig that deep? If desperate, why not use the ditch?

5) According to the condominium records, there were no out-of-the-ordinary incidents during that time. In fact, there were no records of such a man or woman having lodged there during that time!

On top of these contradictions, the police had already gotten rid of all evidence after the guilty decision. In January 2003, the appellate court acquitted all three. The court commented that the indictment “read too much like fiction.” The Supreme Court affirmed this decision in May.

3. The Lesson: The Dangers of “Tunnel Vision”

In this case, once the fateful body (clad in a Fila T-shirt) was found, the police fell into the trap of “cognitive bias.” They looked only for evidence that would corroborate their story. When confronted with contradicting evidence, they could always edit their story. There was no looking back.

Under intense pressure, individuals can potentially admit to things they never did. This is said to be true especially for relatively less mature/educated individuals. They are more likely to show obedience to authority, and they often fail to grasp the consequences of their actions.

Final Comment: To me, it’s shocking they were indicted (to begin with) and found guilty in a court of law (no less) even though the exact date of the crime was unspecified and the identity of the “victims” unknown.


– FYI: Criminal Procedure Act (형사소송법) –

Article 309 : Confession of a criminal defendant extracted by torture, violence, or threat or after prolonged arrest or detention, or which is suspected to have been made involuntarily by fraud or other means, shall not be admitted as evidence of guilt.

Article 310 : When the confession of a criminal defendant is the only evidence against him/her, the confession shall not be taken as evidence of guilt.

– Translation by KLRI (Korea Legislation Research Institute)


II. Example of How a False Confession is Obtained in South Korea

Recently, I was able to watch a great investigative report about false confessions here in Korea. It was an episode from the MBC TV program, PD Notebook. (You can watch via VOD.) The episode shed light on several cases in which a false confession led to a conviction. Below is how (in one case) a prosecutor was able to acquire a false confession from a teenage girl. (There was recorded footage of that interrogation.) At the time, the girl was being accused of beating to death (with her male + female friends) another girl. I’ve translated part of that interrogation:

Prosecutor: According to the other suspects, the victim tried to run away but failed because the guys were too fast. They said: “After that, we took the victim to OO High School.” (Is that right?) Do you not know?

Girl: I don’t. Really, I don’t remember…

Prosecutor: (Sigh) Then, what shall we put down… “It’s correct in that we took turns in hitting the victim…” Did you hit (the victim) hard, or soft?

Girl: Who…??

Prosecutor: All (of you).

Girl: All…?

Prosecutor: Yeah.

Girl: As a whole… a little…

Prosecutor: A little hard, right?

Girl: Uh, yes…

Prosecutor: “As a whole, it’s true that we hit the victim hard…”

Even though the girl was innocent, she ended up confessing to a crime she did not commit. At the time, the prosecutors told her that her friends had implicated her already. They also told her she might not remember (her own crime) because the incident itself was too traumatic. Most of all, the prosecutor kept badgering her with the same (leading) question over and over until she confessed (maybe unbeknownst to herself even).


III. Afterword: I Recommend You This Book!

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If you’re interested in learning more about false confessions in South Korea, I recommend the above book. It was written by the Honorable Kim Sang-joon. He’s done extensive, unparalleled research in this area. (If you read my previous post, he was the appellate court judge who found “null and void” a trial court decision which had illegally found a Filipino guilty. Oh, he happens to be a great lecturer as well.) Tidbit: From 1995 to 2012, there were 540 (major) criminal cases in which a guilty trial court decision was overturned by an appellate court. Out of those, around 20% (110) had something to do with false confession. It does seem to be dwindling of late, but I wonder if it’ll ever be zero.

Thanks for reading!

ADDED: Above is an amazing documentary (I was recently able to watch on Netflix) about false confession in the U.S. Highly recommended!

The Jury System in Korea: The Sangju Pesticide-Cider Case

[Example Situation]

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Mrs. Park (age 82) lives in Sangju, a rural city in South Korea. She often likes to play go-stop, a Korean card game, with her friends down at the town hall. Yes, money is involved, but always just pennies. (FYI, this type of “penny-ante” gambling is legal in Korea.) One thing about Mrs. Park is that she is known on occasion to cheat and be a sore loser. One day, she loses pretty bad and ends up arguing with some of her friends. The next day (at the town hall), six of her friends are found lying unconscious, frothing at the mouth! (Lethal amounts of pesticide are later found in the cider aka Sprite bottle they had all drunk from.) Interestingly, Mrs. Park is also at the scene but is okay/unaffected. The police immediately suspect foul play. There is no direct evidence, but Mrs. Park is singled out as the prime suspect mainly because: 1) On the day of the incident, Mrs. Park took a different route to the town hall. On the way, she asked if one of her friends was already there, something she did not normally do. 2) Traces of the same pesticide were later found on many of her personal belongings. 3) An empty, capless tonic drink bottle later found around her house also had traces of the same pesticide. + The same type of cap to that tonic drink bottle was being used to cap the problematic cider bottle. 4) She did not immediately call for help even though she saw friends unconscious, frothing at the mouth. + When paramedics arrived, she did not seem very concerned. 5) Many of her statements just didn’t add up. Soon, Mrs. Park is indicted for murder and attempted murder. (Out of the 6 victims, 2 are dead.) She maintains her innocence and requests a jury trial. The court accepts, and trial begins. Can/Will Mrs. Park be found guilty? What is to become of her?


I. The Verdict/Ruling: “Guilty – Life Imprisonment”

The example situation is very similar to a case recently reported here in Korea: The Sangju Pesticide-Cider Case (상주 농약사이다 사건). FYI, the actual events took place last July in Sangju, North Gyeongsang ProvinceOn December 11th, the Daegu District Court found her guilty and sentenced her to life in prison. (The jury unanimously reached a guilty verdict.) Mrs. Park has appealed the decision.

Btw, the screenshot at the very top of this post was taken from an MBC TV program called Real Story, Eye. The caption reads: “Suspect Park appears in court.” But it’s incorrect to call her a “suspect” (피의자). Once indicted, a suspect becomes a defendant (피고인). It’s either-or.


DID YOU KNOW? In Korea, we like to call our Sprite “cider” (사이다). “사이다” has also become a slang term used to express great, instant satisfaction/delight. For instance, I saw a few people use this term in relation to the recent French airstrikes in Syria. Psy’s 7th album cover also uses this term. (“싸이다” is supposed to mean “It’s Psy” / “Cider.”)


II. The Jury System in South Korea

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In Korea, a jury trial is called “국민참여재판” which roughly translates to “citizen-participatory trial.” First introduced in 2008, it differs from the U.S. jury system in several key aspects:

1) A jury trial is available only in criminal cases. (In civil cases, no.)

2) The right to a jury trial is not a constitutional right. (In fact, the court can ultimately deny your request for a jury trial.)

3) The jury need not reach a unanimous verdict. (A jury comprised of 5, 7, or 9 will reach a verdict via majority rule.)

4) A jury verdict is not binding. (The court is free not to adopt the verdict.)

5) There is no separate sentencing phase. (Guilt and sentence are decided simultaneously.)

In the Sangju Pesticide-Cider Case, the 7-member jury reached a unanimous verdict which was then adopted by the court. All 7 jurors felt “beyond a reasonable doubt” Mrs. Park was responsible, and the court agreed. If a child were to ask what “beyond a reasonable doubt” means, I would tell him/her that “no one else could have really done it.” To me, that’s what it means. I was first introduced to this concept watching the O.J. Simpson murder case on CNN. “Where is it, Mr. Fung?”

DID YOU KNOW? In 2014, an appellate court found a lower court decision “null and void” because the defendant, a Filipino, had not received a translated document informing him of his right to a jury trial. He had only received a translated version (in English and Tagalog) of the indictment. The lower court had found him guilty of rape and sentenced him to 3 years in prison. Article 3(1) of the Act on Citizen Participation in Criminal Trials (국민의 형사재판 참여에 관한 법률) says: Every person has a right to a participatory trial, as provided by this Act.”


III. What Lies Ahead (for Mrs. Park)

I feel the defense has an uphill battle. They already tried really hard to cast reasonable doubt. They argued that the traces of pesticide on Mrs. Park’s belongings came from when she tried to help the victims and that she did not initially call for help because she thought they were all just napping. The defense also suggested the possibility that the real perpetrator (or the police) could have planted the evidence. (Why would Mrs. Park just leave incriminating evidence around her house like that.) More importantly, they argued that the motive (suggested) is not motive enough (to kill). They had all known one another for decades: So one day they argue, and suddenly Mrs. Park decides to kill them all the next day?

FYI, the appellate trial will not be a jury trial. And even if Mrs. Park is somehow acquitted, the prosecution can still appeal that decision. In Korea, both guilty and not guilty decisions can be appealed.

At any rate, I would like to express my condolences to victims and their families. I always think about whether there was something the victim(s) could have done. In this case, I really can’t think of anything.


<BONUS MATERIAL: Murder under Korean Law>

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Dwight: No, I disagree. R is among the most menacing of sounds. That’s why they call it murder, not mukduk. (The video clip here.)

In Korea, “Murder” (살인) is a crime that encompasses the crimes of 1st/2nd-degree murder + voluntary manslaughter (in America). Factors such as “premeditation” or “heat of passion” are reflected in sentencing. After all, a murder is a murder is a murder.

Murder Tidbit 1: The requirement for “Attempted Murder” (살인미수) would already be satisfied when a poisoned drink is intentionally handed/given to another person (with the intent to kill him/her).

Murder Tidbit 2: In the last 15 years, there were 7,712 murder cases in Korea. Out of those, 7,439 were solved, while 273 (3.5%) turned cold.

Starting last August, the statute of limitations for “Murder” has been abolished. It used to be 25 years. Note: This change did not affect murders whose statute of limitations had already expired.

Thanks for reading.

Self-Defense Law Update: The Gongneung-dong Murder Case

[Example Situation]

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It’s 5:00 a.m., and Ms. Park (age 33) is sound asleep at home where she lives with her fiancé, Mr. Yang (age 36). Mr. Yang is also asleep, but in another room. All is quiet until Corporal Jang (age 20; drunk soldier on leave) breaks into the couple’s home. He proceeds to grab a knife in the kitchen and threatens Ms. Park who is alone in the room. He eventually kills her, stabbing her more than 10 times. Ms. Park’s dying scream wakes Mr. Yang in the other room. Mr. Yang confronts Corporal Jang. They get into a scuffle. With the knife, Corporal Jang is able to injure Mr. Yang in the forehead and hand. Mr. Yang finally manages to pry away the knife. He uses it to stab Corporal Jang in the neck and back. Corporal Jang is dead. Q: Can Mr. Yang invoke self-defense under Korean law?


I. The Gongneung-dong Murder Case (공릉동 살인사건)

The above example situation is very similar to a case recently reported here in Korea. (The actual events took place in Gongneung-dong Seoul, last September.) On December 9th, the Nowon Police Department ended their investigation and handed over the case to the prosecution. In short, they concluded that Mr. Yang’s actions amounted to self-defense. This was/is big news here in Korea because self-defense is interpreted very narrowly. In fact, this was the first case in 25 years where killing another person was actually recognized as self-defense (by the police).

Power Tidbit: The legal (as opposed to factual) issue in this case was whether self-defense would constitute a full defense for Mr. Yang. In situations where the use of force itself was warranted but exceeded its limits, self-defense constitutes only a partial defense. In this case, the police concluded self-defense constituted a full defense. The fact that the incident occurred (technically) at night also helped Mr. Yang’s defense.


II. The Two Theories: Self-Defense vs. Double Murder

There were two diametrically opposed theories to this case. The first being, basically the example situation. This theory suggested Corporal Jang was desiring to have sex at all costs before returning to camp.

The other theory was that Mr. Yang had killed both his fiancée and Corporal Jang. But what was Corporal Jang doing there? This theory suggested Jang went in only after he heard a scream coming from inside.

The latter theory has been discredited by police investigation. According to the police: DNA evidence, polygraphs, witness accounts, and cell phone records all debunk this theory. FYI, this theory was largely raised by an SBS TV program called Curious Stories Y. (I tried to rewatch the episode originally broadcast on October 9th, but interestingly only that episode was/is unavailable.) There is only a fine line between a good hunch and tunnel vision. We need not look far. Recently when a brick fell onto a lady feeding stray cats, many assumed it was a hate crime.


DID YOU KNOW? Gongneung-dong is in the northeastern part of Seoul. We still use the term “dong” (동) to reference areas. I have a close friend who lives around Gongneung-dong. He got married not too long ago.

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III. Implications: A Step in the Right Direction

This case does not mean you can now stab to death any intruder (in Korea). I’d say this case just barely passed the self-defense requirement. Had Corporal Jang been unarmed or Ms. Park (and Mr. Yang himself) unharmed, I’m not so sure self-defense would have been recognized. Also, had the intruder been a woman or someone relatively small, the outcome might have been different. The police/court will gauge whether you really needed to stab (to death) the intruder. If you’d like to read about a related case in which self-defense was not recognized, click here.

I would like to express my condolences to the victims and their families.

Thanks for reading.

In Korea, the age of consent is 13. Well, sort of…

[Example Situation]

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Mr. Cho (married but separated; age 42) is the head of a small talent agency in Seoul. Right now, his son (age 13) is recovering in the hospital after a minor car accident. While on a visit to his son, Mr. Cho shares an elevator with a stranger named Soojin (female; age 15). He abruptly asks if she’d be interested in becoming an actress. Soojin is flattered and takes his card. (FYI, Soojin is neither interested in academics, nor is her sick mother able to amply support her.) Fast forward 3 months: Mr. Cho is having sexual relations with Soojin (who has now left home). There is no outward evidence to suggest Soojin has ever been raped or told to leave her home. Eventually, Soojin becomes pregnant with Mr. Cho’s child and gives birth. Soojin’s mother later finds out and reports Mr. Cho to the police. Q: Discuss Mr. Cho’s criminal liability under Korean law.

Note 1: “Child or juvenile” is a person under the age of 19.

Note 2: All ages in this post are in international age (not “Korean age.”)


I. The Ruling

In a similar case, the Supreme Court of Korea reversed and remanded an appellate court decision which had found Mr. Cho guilty of “Sexual Intercourse with a Minor by Means of Authority” under Article 7(5) of the Act on the Protection of Children and Juveniles Against Sexual Abuse. In the Court’s view, Mr. Cho was not guilty. (FYI, the appellate court had found him guilty and sentenced him to 9 years in prison. The trial court had also found him guilty and sentenced him to 12.)

II. Reasoning

  • There was only Soojin’s statement alleging she had, in fact, been forced into having sex.
  • While Mr. Cho was being detained for another crime, Soojin frequently visited him + sent him mail. In the mail, Soojin often expressed (romantic) love. She also looked after Mr. Cho’s 13-year-old son.
  • During the course of their “relationship,” they often expressed “love” for each other via text message.
  • Soojin had many opportunities to return home and/or report Mr. Cho to the police.
  • It was difficult to believe Soojin’s allegation that she had, in fact, been afraid all this time. According to her, she could not help but continue to see him because she did not have enough money for an abortion.

All in all, the prosecution failed to prove beyond a reasonable doubt that Mr. Cho committed a crime. It was hard to rule out the possibility that Soojin really wanted to be in a relationship with Mr. Cho.

UPDATE: Believe it or not, this case is still ongoing (TRIAL: Guilty —> APPELLATE: Guilty —> SUPREME: Not Guilty —> APPELLATE: Not Guilty —> SUPREME: ?). It’s unlikely the decision will again be overturned. The events originally took place in 2011, and it’s 2015 right now.


III. Explanation of the Title: The Two Laws Coexist!

According to Article 305 of the Criminal Act, the age of consent in Korea is 13. But there is a fine print: Article 7(5) of the Act on the Protection of Children and Juveniles Against Sexual Abuse.

Article 7(5) basically refers to situations where sexual intercourse seemed “consensual,” but it would have been very difficult (ordinarily) for a minor to say no.

In Article 7(5), “by authority” means “through the use of one’s social, economic, or political status/power.” Maybe something like: Your boss pours you a shot of soju, and you find it hard to “just say no.” You want to say no + you can say no, yet you gulp it down like a soft drink. Added explanation: “By authority” is an element of crime that is to be proven (not presumed). Being a boss/teacher can be very vital proof of that, but not an absolute/airtight proof. In other words, a certain outward relationship does not automatically prove “authority” actually came into play. The prosecution has to actually prove that.

For Article 7(5), I have translated “위력” as “authority” and “위계” as “deception.” “위력” is normally closer to “power” or “force,” but I feel “authority” makes a little more sense in that context. (FYI, KLRI translated it as “force.”) When in doubt, one should always refer to the original/Korean version of the law. Translated versions of Korean law have no authority. They exist for reference only.

Power Tidbit: The age of majority in Korea is 19. For the purposes of Article 7(5), however, one is already deemed 19 on January 1st of the year in which one is to turn 19. Article 7(5) does not apply to them even though they are technically still 18 years old.


DID YOU KNOW? Recently here in Korea, a 9-year-old boy confessed to throwing a brick from the rooftop of an apartment building. The brick hit two people (on the ground) who happened to be feeding stray cats. One person was killed, the other severely injured. The age of criminal responsibility in Korea is 14. The boy can’t even be tried as a juvenile because he is not yet 10. The victims can only sue the boy’s parents. FYI, two other kids were with him that day (ages 8 and 11, respectively.) The 11-year-old will be tried as a juvenile (for being an accomplice.)


<BONUS MATERIAL: What Exactly Constitutes Rape in Korea?>

In Korea, the crime of rape specifically requires “violence” (폭행) or “intimidation” (협박) be used as a (direct) means to engage in sex. Here, “violence” is the use of physical force, while “intimidation” refers to threats. The “lack of consent” element is proven as evidenced through the presence of either of these means. So unless there is proof of “violence” or “intimidation,” the crime cannot be rape. Example:

Jack and Jill are boyfriend and girlfriend here in Korea. One night in a motel room, Jack gets extremely angry at Jill over a trifle. He yells/curses at her and even punches the wall (out of anger). He leaves the room to cool down. After 20 minutes, Jack comes back and demands they have intercourse. Jill says no. Jack keeps demanding. Jill eventually obliges.

In a scenarios such as the one above, it’s unlikely that a Korean court will find Jack guilty of rape. Neither “violence” nor “intimidation” was (directly) used as a means to engage in sexual intercourse. Korean courts are still somewhat strict in their interpretation of rape. Initially saying no, but later obliging is more likely to be considered a change of mind. For a little more information on Korea’s rape laws, click here.

Thanks for reading!

Criminal Insult in South Korea

[Example Situation]

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Denise and Patty attend the same church here in Korea. Denise recently heard (from someone) that Patty has been badmouthing her behind her back. Denise is furious and wants to confront Patty ASAP. One Sunday before service, Denise accosts Patty. Denise (then) glares + shakes her fist at Patty. Many people are able to witness this. They wonder: “What could Patty have done to anger Denise like that?” The following day, Patty files a criminal complaint against Denise for the crime of “Insult” (모욕). Denise is indicted. How is a Korean court likely to decide?


I. The Ruling: “Guilty!”

In a similar case, the Seoul Central District Court found Denise guilty. She received a criminal fine of KRW 300,000 (USD 265) for the above incident + a previous incident where she verbally insulted Patty in public. (A prison sentence for this crime alone is rare.) This was an appellate court decision. The trial court had also found her guilty.

II. Reasoning: “If Looks Could Insult…”

The crime of “Insult” can be perpetrated even through mere gestures/actions. It need not be perpetrated verbally or in writing.

Denise’s actions were enough to satisfy the definition of “insult” under Article 311 of the Criminal Act. “Insult” refers to “expressing derogatory feelings or passing abstract judgments (via opinion) that are capable of harming another person’s social reputation” (Supreme Court Decision of November 28, 2003, 2003Do3972).

Guru Note 1: Unlike defamation, the crime of “Insult” deals with opinion only. Not statements of fact (that can be proven or disproven). But the difference is sometimes very subtle. For instance, branding a group “pro-North Korean” would be closer to defamation than “Insult.”

Finally, the perpetrator can always try to invoke a defense saying it was “justifiable under the circumstances.” (More on this in Part IV.) In this case, the court did not feel Denise’s actions/gestures were.

Guru Note 2: Here, Patty can also file a civil suit against Denise for “psychological pain and suffering.” Had Denise been able to settle with Patty, Patty would have dropped the criminal complaint (i.e., criminal case closed), and a lawsuit would no longer be an option either. The settlement amount would probably have been around 1-2 million won.

III. Alternate Realities: “What If…?”

– Alternate Reality A: Had Denise brandished scissors (instead of her fist), that could constitute the crime of “Intimidation” (협박).

– Alternate Reality B: Had Denise touched (with her fist) Patty’s glasses, causing them to fall, that could constitute the crime of “Violence” (폭행).


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Season 23 Episode 10: “Politically Inept, with Homer Simpson”


IV. “Insult” (모욕): An Overview

1. a) The most common form of this crime (right now) is online name-calling. FYI, there is no separate “cyber” form of this crime, so Article 311 applies to both online/offline insults. b) The legal threshold for “Insult” is shockingly easy to satisfy. For example, publicly calling or implying another person to be a “douchebag” would easily qualify. Hurling invective, racial slurs: most definitely. c) The perpetrator need not know the actual name of the person he/she is insulting. The insult just needs to be clearly directed at someone. For instance, insult directed at a specific online username or in-game character would pass muster.

2. a) This crime requires the insult to be made in public. So, insulting another person 1:1 is normally okay. b) This crime can be perpetrated by anyone in Korea + Koreans abroad. c) This crime is normally perpetrated against an individual (as opposed to a group of people.)

3. a) In order to prosecute a person for this crime, a criminal complaint (고소) is required. This means the police/prosecutor will not just go out of their busy way to investigate this crime. b) The “victim” must not only file a criminal complaint but also submit at least some evidence to back that up (e.g., a witness, a screenshot). FYI, you do not need a lawyer to file a criminal complaint. c) To successfully file a criminal complaint, make sure: 1) the insult was made in public, and 2) it’s clear you were intended to be on the receiving end. Oh, try not to insult back; that could hurt your chances too. But the more important question might be: Would it be worth your time and effort? Is the juice worth the squeeze.

4. Publicly insulting another person is not always a crime. It can sometimes be “justified under the circumstances.” In law, we say “circumstances precluding wrongfulness.” For example: 1) You were severely provoked by that person, or 2) That person impeded you as you were exercising your rights, or 3) The insult can be considered negligible in relation to the overall point. But there isn’t one formula that covers all possibilities. Each case needs to be looked at in its own context.


DID YOU KNOW? So, the following type of music video would not be possible in Korea. It’s a parody of the 1993 hit song “Informer” by Snow.

Watching this now, I find it rather amusing that Jim Carrey is wearing that shirt because (as you know) he would go on to play the Riddler.


5. In 2013, the Constitutional Court of Korea reviewed the constitutionality of Article 311 (2012Hun-Ba37). Out of the 8 Justices deliberating, only 3 found it unconstitutional. (At least 6 are needed to repeal a law.) Still, I think it’s worthwhile to read the dissenting opinion:

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<Dissenting Opinion of:

Justice Park Han-chul, Justice Kim Yi-su, and Justice Kang Il-won>

“The scope of elements of ‘insult’ in the Provision that constitute a crime is excessively broad, and negative or derogatory expressions against a person amount to insult as they are likely to undermine one’s social reputation. In the same vein, not just hateful cursing of someone humiliating enough to tear down his/her character, but satirical, humorous literary expressions that use ridicule to expose and criticize the world, twisted and negative intentions taking the form of polite expressions, newly coined words on the Internet that are somewhat violent, etc. are also punishable as a crime of insult. Consequently, even the expressions that warrant the protection of the Constitution can be regulated.

Criminal punishment of insult limits the possibility of raising issues in social communities and addressing them constructively through free exchange of different views and criticism. If some negative languages or critical expressions on sensitive political, social issues used in political, academic debates or communications are considered insult and regulated accordingly, political and academic statements will be threatened and the possibility of open debates will be restrained, weakening the essential function of the freedom of expression.

In addition, the exercise of the state’s authority to punish crime should be confined to the minimum if it is to be prescribed by criminal law; merely an abstract judgment or a derogatory expression can be regulated through self-correcting mechanism of the civil society or imposition of civil liability; and criminalizing insulting words or behaviors does not meet the international human rights standards either. Taking these into consideration, the Provision fails to observe the rule against excessive restriction and thus violates the freedom of expression.”

– Translation by The Constitutional Court of Korea

Above is just the dissenting opinion. To read the full text, click here.

If you read the full text, you can find out about why the remaining 5 Justices found Article 311 constitutional. For me, the simplest argument is that freedom of expression should not come at another’s expense. But the retort could be: “Should you be left with a criminal record for that?” If the victim is really intent on seeing you convicted (as opposed to “cashing out” via settlement), you can/will be left with a criminal record.


6. Recent Controversies #110 individuals were recently indicted (by the Daegu District Prosecutors’ Office) for having publicly insulted a woman who had given a false interview during the Sewol Ferry Disaster.

Backstory: During the Disaster in April 2014, a woman (who claimed to be a civilian rescue diver) gave an interview on live television that the maritime police were hindering their rescue efforts and that a diver even heard voices coming from inside the drowned ship. Well, it was later revealed she wasn’t even a diver. Some Koreans became angry and left harsh, spiteful comments about her online. To this, she decided to file criminal complaints against them all. More than 1,500 of them! (Hers was “why do it when you can overdo it” kind of deal.) As criticism arose, the Supreme Prosecutors’ Office announced at one point they would only indict the most egregious offenders (e.g., repeat offenders).

Hence only the 10 indicted. Those 10 were out of 515 individuals the Daegu District Prosecutors’ Office was handling. Yes, many were spared, but some were unindictable only because they had reached a monetary settlement with the woman. Reports say, 75 had reached a settlement suspected to be around 2-10 million won (per). This is not the end either. The Daegu District Prosecutors’ Office was handling just 515 out of the more than 1,500 nationwide. So, expect more news to come.


DID YOU KNOW? The number of criminal complaints filed for “Insult” rose from 2,225 in 2004 to 27,945 in 2014. This is more than tenfold.

DID YOU KNOW? A person found guilty of “Insult” usually receives a criminal fine. In practice, KRW 300,000 seems to be the minimum.


7. Recent Controversies #2: In November 2014, the National Human Rights Commission of Korea urged the police to come up with measures to make sure police arrest procedures are implemented lawfully.

Backstory: In 2014, criticism arose after police officers started to cite (more frequently) “Insult” as the reason for warrantlessly arresting civilians. FYI, Korean law allows warrantless arrests in instances where a crime has just been committed (or a crime is being committed). Having cursed at a police officer (in public) would be one such instance (e.g., “Get off of me, you #$@%!!!” –> “Okay, you’re now under arrest.”)

In April 2015, the Korean National Police Agency came up with new guidelines on how to handle such “Insult” cases. The new guidelines specifically outline two instances where warrantless arrests (for “Insult” to a police officer) are to be implemented: 1) The insulter refuses to identify him/herself, or 2) it’s difficult to acquire witnesses.


V. Screenshots for Fun (WARNING: MAY CONTAIN INSULT)

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DID YOU KNOW? Earlier this year, India’s highest court ruled as unconstitutional a law criminalizing “offensive” online posts.


VI. Food for Thought: “What Exactly is Free Speech?”

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“… This may surprise you, but I am not a big fan of Rush Limbaugh. However, if you’re one of the people with a website devoted to making him go away, you are part of the problem. And ironically, you’re not even a proper liberal. Because you don’t get free speech. You’re just a baby who can’t stand to live in a world where you hear things that upset you. Oh, you’re not alone. In much of Europe, denying the Holocaust is a crime. It shouldn’t be. The French arrested an anti-Semitic comedian this week for his comments about the attack, which were vile, but opinions shouldn’t be illegal. Everyone can always come up with a reason why the thing that bugs YOU should get a waiver. But free speech only works if there are no waivers. NO WAIVERS! …”

– Bill Maher (on his show earlier this year)

To watch the full segment, click hereThanks for reading!

Recent Defamation Cases 2

[Example Situation]

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Samuel and Sally have been dating for some time (here in Korea). But right now, Samuel wants to break up with Sally because he now feels she is too erratic and high maintenance. Before Samuel can do that, Sally becomes pregnant with his child. Still, Samuel breaks up with Sally. He tells her he is (still) willing to take full responsibility for the child. But Sally is desperate to get back with Samuel. So one day, Sally suddenly shows up at Samuel’s workplace and reveals to his coworkers that she is pregnant with his child. (She even shows them her ultrasound images.) Samuel is now extremely angry because he really wanted to keep everything on the DL. He fears that his superiors will start to view him unfavorably. Samuel decides to file a criminal complaint against Sally for defamation. Sally is indicted. How is a Korean court likely to decide? Note: Defamation is a crime in Korea, and truth is not a defense.


I. The Ruling

In a similar case, the Seoul Central District Court ruled that Sally’s statements/actions above do not constitute defamation. This was an appellate court decision. The trial court had found her guilty.

II. Reasoning

Given the nature of the relationship, such info (in itself) is incapable of tarnishing Samuel’s social reputation. The two were unmarried individuals who were boyfriend and girlfriend at the time.


III. My Take

I’m torn really because I do feel Sally’s statements/actions were ones potentially capable of tarnishing Samuel’s social reputation (at least here in Korea). As the law stands now, I do. It’s not hard for me to picture some of his coworkers judging him. But if I’m wrong, when exactly is social reputation deemed tarnished? Where do we draw the line?

DID YOU KNOW? In Korea, a court recently found a woman guilty of defamation after she posted on her KakaoTalk profile (and messaged many people) that her violent husband had cheated on her. Her allegations were true. She was fined 2 mil won. YTN news report below.


In Korea, if you are found guilty of defamation (via a true statement), you will most likely face a criminal fine. Actual prison sentences are reserved for defamation based on (egregious) lies.

The defense for defamation (via a true statement) is that you did so “solely for the public interest.” Here, the manner in which you made the statement will come into play (e.g., to whom, for how long).

But what’s interesting about criminal defamation in Korea is that there’s always a clause which says: “The perpetrator cannot be prosecuted against the victim’s express wishes…” So usually, the perpetrator and the victim reach a settlement, and the case is closed. In essence, the victim is able to receive “damages” w/o the hassle of a lengthy lawsuit. Criminal copyright law functions similarly here in Korea.


DID YOU KNOW? There are two words (in the Korean language) that correspond to the English word, “truth.” They are: “진리” (眞理), and “진실” (眞實). It’s hard for me to explain the subtle difference, but I would say: “진리” is “truth” as in “The earth is round,” while “진실” refers to “truth” as in “I was really there!” FYI, “사실” (事實) is closer to “fact.”

– “The truth shall set you free.” –> “진리가 너희를 자유케 하리라.”

Truth & Reconciliation Commission –> 진실·화해를위한과거사정리위원회


IV. Food for Thought

– Is truth infallible?

– What do you think about people who take joy in divulging private/embarrassing information about others?

– What do you think about people who intentionally sell half-truths?

– In Korea, is the problem (more) there being too much of the truth (out there) or not enough of it?

– What is the meaning of life? In a nutshell, is it to seek truth, find happiness, and show compassion to others?

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“The Truth” in NBA 2K15. Thanks for reading!

If you’d like to learn some more about today’s topic, click here.

Drivers vs. Cyclists: Driver’s Liability under Korean Law

[Example Situation]

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A Seoul public transit bus is fast approaching a crosswalk. Even though the traffic light is red (for the bus), the bus driver knows too well the light will soon turn green (for him to proceed). So he decides not to slow down. Meanwhile, a cyclist (on a sidewalk) is about to use that very crosswalk (like in the photo above). The cyclist starts to cross when the “walk” signal is almost over (i.e., only one “green bar” remaining on the countdown timer). Alas, the bus hits the cyclist head-on (in the middle of the crosswalk), and the cyclist is killed instantly. FYI: At the moment of collision, it was green light for the bus (i.e., “don’t walk” signal for the pedestrians), and the cyclist was riding his bicycle across.

The family of the dead cyclist sues the bus company’s insurer. Was the bus driver at fault? How is a Korean court likely to decide?


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

I. The Ruling

The Seoul Central District Court found the bus driver/company 60% responsible (i.e., the cyclist only 40% responsible). Their insurer was ordered to pay the family about 200 mil won (USD 170,000).

II. Reasoning

Simply put, the bus driver should have slowed down as he was approaching the crosswalk. He should have known/anticipated that somebody could always start crossing very late. In Korea, all motorists have a general legal obligation to attentively look ahead and drive defensively. In the court’s view: Had the bus driver slowed down, the collision could have been prevented.

But of course, the cyclist was also at some fault because: 1) He started crossing too late. He should have waited for the next “walk” signal. 2) He rode his bicycle across. He should have gotten off and walked/dragged it. Well, bicycles cannot be ridden on sidewalks to begin with. (The exception: Sidewalks with separate bicycle paths.)


DID YOU KNOW? Sometimes, bicycles can actually be ridden when using a crosswalk. Like the crosswalk below.

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Still, I’ve seen some veteran cyclists recommend “bicycles always be walked/dragged” because many pedestrians are still unaware of what those lines mean. You can end up colliding with one such pedestrian.


DID YOU KNOW? From 2010 to 2014, a total of 1,440 people lost their lives due to bicycle-related traffic accidents here in Korea. That’s an average of 288 deaths per year. Biking accidents are on the rise.

OPINION: Sadly, I personally don’t see cycling safety (in Korea) improving a whole lot at least in the near future. That is why (right now) I cannot wholeheartedly recommend cycling to people in Korea. For the individual, the question is simple: whether it’s safe to ride today. The government should make cycling safer now. If the government is serious about promoting cycling, they shouldn’t be waiting around until there are more accidents. People should not have to pay with their lives. As a pedestrian, I don’t always blame cyclists for wanting to ride on sidewalks. I get it. They feel unsafe on the road. Just don’t hit me please.


III. Case Analysis: “It’s more about foreseeability!”

Yes, the bus driver (in the example) had the “right of way,” but liability (in traffic accidents) is more about “foreseeability.”

Was it reasonably foreseeable that someone could start crossing very late? Yes. Then, the bus driver should have slowed down.

This logic goes for cyclists too. A cyclist can be found liable for hitting a pedestrian even if the collision took place on a “bicycle-only path.”


IV. FYI: “So, when is a driver 0% at fault?”

The most likely scenario in which a driver can perhaps be found 0% responsible after hitting someone is as follows:

1) The driver’s view was completely impeded by the bumper-to-bumper traffic on the other side.

2) A jaywalker suddenly emerged out of those cars.

3) The collision took place on the road outside of a crosswalk.

4) At the time of collision, the driver was not speeding.

Perhaps like in the accident below. WARNING: DISTURBING FOOTAGE.

I think kids especially should be reminded not to dart out onto the road. Kids generally have a tendency to move abruptly and unpredictably.


V. Final Thought

It’s always better not to end up in court even if you can win. So, please try to drive/ride/walk carefully and defensively. Especially in Korea. Not everyone knows the law or abides by it.


Q:   What is it that no man wants to have, yet no man wants to lose?

A:   A lawsuit.

– The Riddler (as played by Frank Gorshin)


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Above is a photo of a cyclist waiting to walk/drag her bicycle across. The photo was taken in Chicago.

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

Thanks for reading!