[Vol. 1] Korea Court Watch

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I would like to share some interesting Korean court cases of August 2015.


1.  Seoul Central District Court (Reported on Aug. 4 , 2015)

The court held that it is lawful/legal for the police to detain a suspect (caught in the commission of a crime) for 45 hours straight even without a warrant. (FYI, Korean law stipulates the police may do so for up to 48 hours.) The detainees in this case sued the government saying they were detained for 45 hours even though questioning had already ended at the 25-31 hour mark. They argued the police had no reason to further keep them after that time. (FYI, they had been arrested for protesting illegally against the impending import of U.S. beef back in 2008.) The court did not find for the plaintiffs/detainees reasoning, the detainees refused to identify themselves, kept on invoking Miranda, and overall refused to cooperate with the police. So, the questioning itself took long to begin with. There were also many other detainees there at the time, and the police needed more time to try to bring the situation under control. Under the circumstances, it was not unreasonable for the police to have further detained them for those extra hours. (Link)


2. Ulsan District Court (Reported on Aug. 4, 2015)

The court found a motorist (age 47) guilty of a hit-and-run after he left the scene of his accident without telling the the other party (i.e., the victim motorists) any contact info. That fleeing motorist did tell the other party he was leaving “to get his cell phone and ID,” but that did not prevent the court from finding him guilty. The court reasoned, it did not look like the victims consented to him leaving + the victims were holding the back of their necks, so the motorist should have realized they might have suffered injuries. (FYI, the victims ended up suffering injuries requiring 2-3 weeks of medical treatment.)  That motorist should have first taken measures to call an ambulance and/or the police and left the scene only after giving the victims his contact info. He didn’t do any of these things, so the court felt there was indeed “intent to flee.” (Link)


3. Supreme Court of Korea (Reported on Aug. 4, 2015)

The Supreme Court reversed and remanded an appellate court decision which had found a man (age 51) not guilty of groping. The defendant was indicted for groping after he touched two female subordinates (ages 20 and 19 respectively) at work. The defendant claimed he was merely trying to scold the two after he found them loitering/smoking near the back of the office building. He touched them in the face and arm a few times while telling them this and that. In other words, he claimed the touching was not “sexual” in nature. The Court saw otherwise. Considering the circumstances under which he touched them (age, sex, relationship, manner, etc.), the Court felt the defendant did in fact have intent to touch them sexually w/o consent. FYI, the man had originally been found guilty, and then not guilty, and now guilty again (TRIAL: guilty -> APPELLATE: not guilty -> SUPREME: guilty). This guilty decision will now be final. The appellate court had ruled he was not guilty because the incident took place haphazardly in an open, public area for a short period of time. These cases are often iffy and hard to predict. (Link)


4. Supreme Court of Korea (Reported on Aug. 5, 2015)

A man here in Korea marries a Chinese woman (through an agency). His Chinese wife leaves him a month after the wedding. Would this be enough grounds for an annulment (here in Korea)? The Supreme Court says no. Unless there is real/substantive evidence that the woman/wife did in fact harbor fraudulent intentions to begin with, an annulment cannot be granted. The Court added, it was still unclear the exact circumstances under which the wife had left. There was a possibility she left as a result of marital discord. (Link)


5.  Uijeongbu District Court (Reported on Aug. 6, 2015)

A man buys a used car not knowing the car was a flood-damaged car. He drives it around until the engine suddenly fails, and the car breaks down beyond repair. (The man is unharmed.) In such an instance, the court says the buyer has the right to cancel the sales contract and receive a full refund from the seller. The fact that the car is now damaged beyond repair or the seller “did not know” are irrelevant. Also, the buyer need not pay (reimburse) for having used the car. (Link)


6. Daegu District Court (Reported on Aug. 6, 2015)

A woman is paid (in advance) by a pimp/agency, 55 mil won. She is expected to pay back this money by working as a prostitute. But even after working for a long time, she is still unable to pay back 20 mil. She wants out now. Is she obligated to pay this money back? The court says no. Any money paid in consideration for or in the execution of an illegal activity need not be paid back. This is why “gambling debt” need not be paid back either. [ADDED: For example, you owe money because you lost. Gambling is generally forbidden in Korea. Gambling is allowed only in specific casinos. Also, Koreans cannot gamble in most casinos which exist for foreigners here.] (Link)


7. Uijeongbu District Court (Reported on Aug. 10, 2015)

Your whole family is dining at a restaurant. You are all seated except for your baby who is inside the stroller napping. The stroller is beside your table, partially blocking the pathway for other people. Let’s say, an employee accidentally spills hot doenjang jjigae on the baby! The hapless baby suffers 2nd degree burns on the thigh. The baby will have to receive skin graft surgery when older. You sue the restaurant owner and employee. How much would the restaurant be responsible? In such a case, the court saw the restaurant as 70% responsible. One of the restaurant’s defense that there was a “No strollers!” sign near the entrance did not work. (Link)


8. Incheon District Court (Reported on Aug. 10, 2015)

What is the likely punishment for falsely accusing another person of a hit-and-run? A man (age 32) was found guilty of “False Accusation” (무고) and fined 1.5 mil won after he made such a false report to the police. He did so after getting into a heated argument with another person. CCTV footage was able to prove all this. FYI, the crime of “False Accusation” requires the perpetrator/reporter to be (at least) “pretty sure” that the person is innocent. Which was not a problem in this case. (Link)


9. Seoul Northern District Court (Reported on Aug. 10, 2015)

Is a failed suicide a crime? Yes, if you were trying to commit suicide together with another person, and only you failed. A woman (age 26) was found guilty of “Aiding and Abetting Suicide” after the man (age 24) whom she tried to commit suicide with succeeded/died, while she failed/lived. They were strangers who had met online. The woman was also lucky in that she received a “deferred sentence” (선고유예). This means: if she is able to keep her nose clean for a certain period of time, the guilty sentence itself is thrown out (i.e., everything is expunged). The jury/court granted this sentence because she seemed very remorseful, had no priors, was trying now to “live right,” and the man actually played a more key role in organizing the joint suicide. This was a jury trial. In Korea, only criminal defendants may request a jury trial. (Link)


10. Jeju District Court (Reported on Aug. 12, 2015)

What is the punishment for accidentally shooting to death another person (while hunting) in Korea? The court found a man (age 65) guilty of criminal negligence and sentenced him prison (w/o labor) for 18 months (3 years probation). “Probation” means he will not actually serve time in jail. He accidentally shot to death a colleague while removing bullets from his shotgun. They had gone hunting together. In Korea, the possession of firearms is strictly prohibited except for special occasions such as for hunting or sports shooting, etc. The court said the defendant was negligent in that he should have pointed the muzzle upwards towards the sky (as opposed to sideways towards his colleague). I remember we were constantly reminded of this in the military. This case also reminded me of a Forensic Files episode in which a person shot to death a friend while hunting, but not accidentally. He tried to make it seem accidental. (Link)


11. Seoul Western District Court (Reported on Aug. 12, 2015)

Can a person be punished for “driving w/o a license” after having driven his/her car 2 meters inside a (villa) parking lot? The court says no. “Driving w/o a licence” only applies to instances where the motor vehicle was driven on the “road.” And, such a parking lot cannot be considered that. A man (age 54) was acquitted of “driving w/o a license” after he drove his car in such a manner/place with a revoked license. (Link)

DID YOU KNOW? If drunk, the man could theoretically be punished for drunk driving because drunk driving does not require a motor vehicle to be driven on the “road.”


12. Seoul Family Court (Reported on Aug. 13, 2015)

What if your newlywed bride spends most of her time shopping alone and treats you like “hollow man” throughout your honeymoon? The court saw this type of behavior (of the bride) as being responsible for the breakup a (de facto) marriage. The court ordered such a bride to pay back for all wedding expenses, give back all presents, and pay to the groom an extra 10 million won for psychological pain and suffering. In this case, the marriage was still in the “de facto” state because they had not registered yet. A “de facto marriage” is like cohabitation. It entails almost all rights/obligations as a legitimate/registered marriage except for those relating to inheritance. (Link)


13. Suwon District Court (Reported on Aug. 13, 2015)

A “conscientious objector” (a Jehovah’s witness) who was indicted for draft evasion was found not guilty. This was the fifth time such a conscientious objector was found not guilty by a court (since the first-ever acquittal in 2004). The problem is that the Supreme Court of Korea is still steadfastly finding them guilty. The Constitutional Court of Korea has also ruled that criminal punishment for conscientious objectors is “constitutional.” FYI, military service is mandatory for all men in Korea. (Link)


14. Busan District Court (Reported on Aug. 13, 2015)

The court ruled that even (Japanese) pornography is protected under Korea’s copyright laws. This decision is in line with the Supreme Court stance on copyright and pornography. Even when the content (of a work) potentially violates criminal laws, the work itself is protected under copyright laws so long as it expresses ideas in a creative manner. As a result of this case, a company running file-sharing websites (i.e., the defendant) will no longer be able let its (paying) users share Japanese porn freely. (Link)


15. Seoul Central District Court (Reported on Aug. 15, 2015)

The court found a jaywalker 70% responsible after he was hit by a bus while trying to cross the street near a crosswalk. He was jaywalking in that: 1) it was his red light + 2) he did not actually use the crosswalk. So, why wasn’t he 100% responsible for his own injuries?? The court thought it was still possible for the bus driver to have (maybe) reduced speed at the very end. The court calculated that the bus driver had approximately 1.9 secs to foresee the jaywalk. The bus driver/company’s defense that view was impeded by the illegally-parked taxis was not recognized. The court added it was a clear day, and the collision happened during daytime. Message to all drivers (in Korea): “Just because someone is jaywalking does not necessarily mean you can hit him/her.” (Link)


16. Seoul Central District Court (Reported on Aug. 16, 2015)

In 2011, Mr. Park (and two other people) put up on the Republic of Korea Navy website bulletin board, several posts denouncing the government’s plan to build a new Naval base near Jeju. Their posts were quickly removed by admin in accordance with website policy that any posts of a political nature or any posts denouncing (w/o legitimate grounds) a particular group or organization are to be taken down. Well, Mr. Park (and those two other people) sued the government saying their right to “freedom of expression” had been (illegally) infringed. The trial court found for the defendant (i.e., the government). They appealed. The appellate court (this case) found for the plaintiffs and ordered the government to pay the plaintiffs KRW 300,000 each (for psychological pain and suffering). The appellate court reasoned that the matter was of public concern; therefore, they had a right to voice their opinion + just because an opinion happens to coincide with the position of the opposition party does not necessarily make it politically-motivated. FYI, district courts (in Korea) can function both as trial court or as appellate court. So, both high courts and district courts handle appellate cases. (Link)


17. Seoul High Court (Reported on Aug. 17, 2015)

The court affirmed a lower court decision in which a South African (currently in South Korea) was denied refugee status. The South African first came to South Korea in August 2013 with a B-2 visa (business/tourist) and within a month asked Korean immigration to grant him refugee status. However, immigration refused saying there was not enough credible reason to believe “his life or freedom would be threatened” as stipulated in the 1951 Refugee Convention. The courts basically felt the same. The South African claimed that a maniacal cult (practicing human sacrifice) had already murdered his parents and were now after him. Sadly, he did not have much credible evidence to support these claims. In international law, there is an important principle called “the principle of non-refoulement.” No state can arbitrarily return a refugee back to a place where his/her life or freedom would be threatened on account of race, religion, nationality, membership of a particular group, or political opinion. This is now considered international customary law, but states still have the final say in determining whether a person qualifies as a “refugee.” (Link)


18. Seoul Central District Court (Reported on Aug. 17, 2015)

What if you suspect your wife of infidelity and want to plant a recording device to gather proof? Well, don’t do that because you can face criminal liability (if caught). The court found a man (age 55) guilty of this crime and sentenced him to 1 year in prison (2 years probation). “Probation” means he will not actually serve time in jail. He planted a recording device deep inside his wife’s purse and also at her workplace. The wife found out. In sentencing, the court took into consideration that the device actually recorded evidence of infidelity! But of course, two wrongs don’t make a right. In Korea, you can secretly record a conversation only if you yourself are a party to that conversation. (Link)


19. Seoul Western District Court (Reported on Aug. 17, 2015)

If you were an inmate and prison did not properly tend to your medical condition (and you suffered irreversible damage as a result), you can sue them. A man successfully sued the government for an amount of about 200 mil won for exactly that. He was suffering from serious hypertension while in prison, but the people there failed to take proper care of him. (He suffered cerebral hemorrhage as a result.) The court did limit the prison’s responsibility to 50% saying the man was also at fault for not properly conveying the exact extent of his medical condition at the time + did not always cooperate fully. (Link)


20. Daejeon District Court (Reported on Aug. 17, 2015)

A man (age 47) was sentenced to 8 months in prison after he took upskirt photos of random women on 11 separate occasions. He was already on probation for having been found guilty of similar crimes. So this time, he will actually spend time in jail. He was also ordered to attend 80 hours of “sex offender treatment program.” I understand why some women habitually cover their skirts. You never know in Korea. (Link)


21. Seoul Western District Court (Reported on Aug. 18, 2015)

The court ruled that groping another person (while alone with that person) is a crime only if: a) the perpetrator used violence/intimidation, or b) the victim was taken by surprise. This means: if groping (under such circumstances) begins slowly without employing any force or threats + the victim could have foreseen the event and does not actively resist –> that sort of groping is not a crime. Here, the specific crime in question is “Indecent Act by Compulsion” (강제추행). A man (age 49) who was indicted for two separate counts of groping was found guilty of only the former count. Synopsis: He first (suddenly) started groping his sister-in-law who was trying to sleep in her room. The sister-in-law was taken by surprise, and she moved to another room. He followed to grope her again. But this time, she was not taken by surprise and did not actively resist. Also, the man stopped promptly after realizing she was not asleep, and she told him “It was fine, just leave.” In my opinion: This is all because of the word “compulsion” which does not appear in latter, more modern forms of similar crimes such as “Indecent Act at Crowded Public Place.” (Link)

DID YOU KNOW? So far this year, Gangnam Station (Line #2) is leading all other metropolitan subway stations in the number of reported sex crimes.


22. Daegu District Court (Reported on Aug. 19, 2015)

Except under very special circumstances, abortions are illegal in Korea. (For example, continued pregnancy would seriously endanger the pregnant woman’s health. –> Abortion is okay.) You may not think so considering very few illegal abortions actually go punished. It is a crime nonetheless. It is a crime not only to perform or undergo an illegal abortion, but also to foot the bill! The court recently found a man guilty of “Aiding and Abetting Abortion” (낙태방조) and ordered him to pay 1 million won in criminal fine. A series of text messages helped establish he had in fact paid for his girlfriend’s illegal abortion. The girlfriend and the doctor/obstetrician must be facing punishment as well. (Link)


23. Jeju District Court (Reported on Aug. 20, 2015)

As you know, gun ownership is strictly prohibited in South Korea unless for special purposes. One of them is when farmers need to protect their hard-earned crop from free-roaming wildlife. But it seems not all farmers can own a gun. Farmers with a propensity for violence may be denied a permit. The court upheld a police disposition denying a shotgun permit to a farmer who had previously been found guilty of crimes relating to violence (numerous times from 1991 to 2014). The court felt he could pose a danger to the public. Plus, he already owned an air gun, and the city was providing such services upon request. (Link)


24. Seoul Central District Court (Reported on Aug. 22, 2015)

You may remember reading in the news (earlier this year) that a woman here in Korea was indicted for attempted rape (of a man). Well, she was recently found not guilty via jury trial. Basically, the jury found it hard to reconcile the victim’s allegations with the surrounding evidence. For instance: 1) The victim remembered details that a drugged person would not normally remember. 2) The victim said he feared for his life, yet he at one point put a baid-aid on the defendant. 3) The defendant was merely 4′ 9,” and she would have had a very hard time shoving the victim up against the wall, as alleged. 4) Finally, the victim was said to have been hit over the head with a hammer, yet his head wound did not appear that serious. At any rate: the 9 jurors deliberated for 3 hours, and the verdict was unanimous. FYI, a verdict need not be unanimous in Korea, but the jury’s verdict is not binding either. The presiding judge can still choose to disregard it. The judge has the final say. Btw, the prosecution has appealed. In Korea, the prosecution can appeal not guilty verdicts. (Link)


25. Changwon District Court (Reported on Aug. 24, 2015)

The court ruled that it is illegal for a policeman to take (w/o consent) a motorist to the police station even when there is suspicion of drunk driving (e.g., breath smells like alcohol, but no breathalyzer test administered). And, any evidence obtained thereafter is inadmissible. A man (age 55) successfully sued the government for an amount of about 4 mil won after he was forcibly taken to the police station (from his car). The amount was for psychological pain and suffering + for bruises sustained while resisting. (He slapped an officer in the face but hurt himself too!) The man was indeed drunk (BAC 0.214%), but got off on all charges (e.g., drunk driving, obstruction of justice) because he was taken illegally + all subsequent evidence was inadmissible. I may be missing some key facts, but I can’t say that I agree with this decision. (Link)


26. Seoul Central District Court (Reported on Aug. 25, 2015)

Two plastic surgeons have been found guilty of criminal negligence and each fined 7 mil won and 5 mil won. They were found guilty of “Death by Occupational Negligence” (업무상과실치사) after a female patient they jointly performed liposuction on died. It was established in court that the two had accidentally/negligently caused perforations in the patient’s small intestine which lead to her death. The reason the two got away with just a criminal fine was because a monetary settlement had been reached with the victim’s family, and the family did not wish for further criminal punishment. In Korea, having reached a monetary settlement with the victim’s family is taken into consideration in sentencing. The perpetrator/defendant cannot avoid criminal liability altogether, but it can lead to lighter punishment. (Link)


27. Seoul Central District Court (Reported on Aug. 26, 2015)

The court affirmed a lower court decision which had found a car driver 0% responsible after he hit a pedestrian who was crossing the street using a crosswalk. Why, how 0%? 1) It was the driver’s green light. 2) The driver was not speeding. 3) The pedestrian emerged very suddenly, and there was virtually no time to react. 4) The pedestrian was crossing while looking at his smartphone. The most important factor is #3. (In this case, #4 is not as important.) There was virtually no time to react because: Unlike the lane the driver was progressing on, the opposite lane was “bumper-to-bumper,” and the driver’s view (of the opposite lane’s portion of the crosswalk) was completely impeded by those lined-up cars. The pedestrian started crossing from the sidewalk on the opposite lane. To the driver, the pedestrian must have suddenly appeared out of nowhere. This is one the rare instances in which a driver can be found 0% at fault (for hitting a pedestrian). This is also why drivers need to install a black box. (Link)


28. Seoul Central District Court (Reported on Aug. 26, 2015)

The court found three internet users guilty of “Cyber Defamation (via a False Statement)” and each fined them KRW 800,000. They had spread rumors online that “singer Im Chang-jung split up with his wife because she was having extramarital affairs, and Im was actually not the biological father of their third child.” Im’s (ex) wife filed a criminal complaint, and the three children even underwent DNA testing. The claims were false. (Link)

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29. Suwon District Court (Reported on Aug. 26, 2015)

In Korea, you can actually end up in jail for publicly insulting another person (w/o provocation). The court affirmed a lower court decision which had found two Ilbe website members (ages 20 and 30 respectively) guilty of the crime of “Insult” (모욕) and sentenced them both to 4 months in prison (no probation). This means they will actually have to spend time in jail. The two were charged with the crime after they posted (on Ilbe) a photo of an unidentified Danwon High School student devouring a fish cake skewer. It carried the caption: “Eating friends.” (FYI, it was one of them actually enacting the student after purchasing a Danwon High School uniform.) Their incriminating (and odious) analogy was that: The fish cake skewers immersed in soup were Sewol victims drowning at sea. Most of the Sewol victims were Danwon High School students and teachers. (Link)


30. Supreme Court of Korea (Reported on Aug. 27, 2015)

The Supreme Court of Korea affirmed an appellate court decision which had found the government’s demolishing of painter Lee Ban’s mural at Dorasan Station as “illegal.” The government was ordered to pay Lee 10 mil won for Lee’s psychological pain and suffering. Back in 2006, Lee was contracted by the Ministry of Unification to paint (on one of the walls at Dorasan Station near the DMZ) a nice mural that would signify the hope for unification, etc. He did. But in 2010, the government decided to tear it down after getting many complaints that the mural was too dark, abstruse, and shamanistic. The government even conducted a survey, and 80% of the respondents wanted it changed (to something brighter). The government saw no problem in unilaterally deciding to demolish the mural because after all they owned it. The appellate court and Supreme Court saw otherwise. They ruled that the tearing down lacked objective justification and infringed upon the painter’s “moral rights” and “freedom of the arts.” What do you think? (Link)

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All mistakes here (grammatical/factual) are my own.

Thanks for reading!

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, one key/operative word is “enclosed.” Had the man (just) 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, 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!