When Lending Money to a Friend (in Korea)…

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The worst scenario might be if: 1) you lend in the form of cash + 2) you just say “pay me back soon!” You should transfer the money via bank account and also draft a personal loan agreement (aka promissory note).


I. Why via Bank Account?

Because you’ll need to prove you actually handed over the money. (In court, it is the lender who bears the burden of proof.) When transferring the money, you could also enter a short message such as “LoanToMike” to make it clear the money (being sent) is intended to be a loan.

II. Why a Personal Loan Agreement?

Because you’ll need to prove the money you handed over was a loan, not a gift or reimbursement. Entering a message such as the above is not really definitive proof the money (sent) was a loan. Definitive proof is a valid personal loan agreement. For what to include, see slide at the top.


III. Additional Comments

1. Have the borrower handwrite (not type) the document him/herself. Verify his/her identity, and try to retain a copy of his/her ID. You can also try to record the conversations between you and the borrower. (In Korea, it’s legal to secretly record a conversation to which one is a party.)

2. From a borrower’s perspective: ask for a receipt (영수증) upon any full/partial repayment. When drafting a new/updated promissory note, make sure the previous one is shredded. When making any partial repayment, specify (on the receipt) how the interest is to be handled.

3. Not all loans have to be paid back. Loans specifically made to finance illegal activity (or crime) need not be paid back. For example: 1) You knew full well the money was going to be spent on gambling (aka 도박자금), or 2) The money pimps initially “lend” to prostitutes (aka 선불금)…

4. Failure to pay back on time is not, in itself, a crime. It is a civil matter. It is a crime (i.e., fraud) only when the borrower had no intention (at all) of paying back. The courts look at the borrower’s overall financial situation + whether he/she had a job, etc. at the time money was lent.

5. You can ask the borrower’s spouse to pay back only if the money was used for marriage-related things/affairs. For example, the money was used to pay their rent, etc. (e.g., For drinking and having fun –> no.)


DID YOU KNOW? A loan agreement is called “금전(소비)대차 계약.”


I attended grades 4-7 in Manila. Once, a fellow student asked me if he could borrow 20 pesos. (At the time, 20 pesos could probably buy like a burger at the cafeteria.) I lent him the money, but he later refused to pay it back. Actually, he said he had no recollection of borrowing from me. What was interesting to me was that his response seemed genuine. (I still go back and forth on it, but I like to think he really forgot about it.) Looking back, it was a good lesson for me because I realized I had nothing to prove my claim. Below is the school (old campus) I attended.

Thanks!

Ramen Noodles at 30,000 Feet…

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The Seoul Central District Court recently rejected a wrongful termination claim filed by a former POSCO executive. Back in 2013, he left the company after it was widely reported that he had used violence against a flight attendant (during flight). During a flight to L.A., he became furious that his ramen noodles was not made properly. (Before that, he got angry when the empty seat next to his became occupied.)

Under Korean law, the following acts are all criminal. (e.g., Smoking –> max 2 mil won.) FYI, #7 came into being after this incident.


AVIATION SAFETY AND SECURITY ACT (항공보안법)

Article 23(1)

No passenger on board shall engage in any of the following acts to ensure the safe flight of an airplane and travel of passengers:

1. Making a noise, such as abusive language, loud singing;

2. Smoking (excluding smoking in a smoking zone);

3. Doing harm to other persons after drinking alcohol or taking drug;

4. Causing sexual humiliation to others;

5. Using electronic equipment, in violation of Article 73 of the Aviation Safety Act;

6. Attempting to enter the cockpit without the captain’s consent;

7. Obstructing the duties of the captain, etc. by deception or force.

– Translation mostly by KLRI (Korea Legislation Research Institute)


Having hot noodles at 30,000 feet is not really something on my bucket list. (I personally feel they should get rid of this service altogether.)

There was/is a famous The Twilight Zone episode called “Nightmare at 20,000 Feet” (starring William Shatner). You’ve seen it probably.

It really blows my mind they were already making shows like this in the 50s and 60s. For fun, below are the episodes that most affected me:

1) “People Are Alike All Over

2) “The Howling Man

3) “Shadow Play

4) “The Midnight Sun

5) “Miniature

6) “No Time Like the Past

7) “Spur of the Moment

8) “An Occurrence at Owl Creek Bridge

9) “The Encounter

10) “Come Wander with Me

I heartily recommend the above episodes. Dokdo below.

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Thanks!

Korean Law on Rape: Understanding the ‘Lack of Consent’ Requirement

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In all rape-related (criminal) cases, it is the prosecution who bears the burden of proving “lack of consent.” Because it’s up to the prosecution to prove (beyond a reasonable doubt) every element of a crime.

Normally, “lack of consent” is proven by showing that: the rapist used violence/intimidation (as a means) or the victim was already incapacitated (and the rapist was able to take advantage of that).

Here, the level of violence/intimidation is important. –> It must have rendered resistance “impossible or extremely difficult.”

This means: If the accuser could have reasonably resisted or ran away at any point, the court is unlikely to recognize rape. Having said “no” (alone) is insufficient. The court will also consider the circumstances under which the individuals entered and left the premises.

Below, a (Korean) Supreme Court decision from last year.

Thanks for reading!

I also recommend this post: http://klawguru.com/2016/04/22/the-serious-crime-of-false-accusation-in-korea/

Reporter Found Guilty of Reporting a Private Conversation Between Three People (in Korea)

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The Supreme Court of Korea recently affirmed an appellate court decision which had found a reporter guilty of eavesdropping + secretly recording + reporting a private conversation between three people (back in October 2012). The reporter was sentenced to 6 months in prison but received a deferred sentence. This means the crime will be expunged from his criminal record if he is able to keep his nose clean for 2 years.

In Korea, you can secretly record a conversation only if you are a party to that conversation. What’s interesting about this case, though, is that the reporter stumbled upon their conversation. One party (to that conversation) forgot to press “end” after being interviewed by the reporter (via cellphone). “What’s this?? Jackpot!” The reporter, who had just been recording the entire interview, chose not to press “end” either.

The Court ruled that the acts of eavesdropping, recording, and reporting were each crimes under Korean law. And that the subject-matter was not really worthy/grave enough to be excused under the “Justifiable Act” (정당행위) defense. Also, the fact that the reporter stumbled upon the conversation did not make any difference. He should have stopped listening as soon as he realized a private conversation was taking place.

PROTECTION OF COMMUNICATIONS SECRETS ACT (통신비밀보호법)

Article 3 (Protection of Secrets of Communications and Conversation)

(1) No person shall censor any mail, wiretap any telecommunications, provide communication confirmation data, record or listen to any conversation between others that are not made public, without recourse to this Act, the Criminal Procedure Act or the Military Court Act…

Article 16 (Penalty Provisions)

(1) Any of the following persons shall be punished by imprisonment with labor for not less than 1 year but not more than 10 years + by suspension of qualification for not more than 5 years:

1. A person who has censored any mail, wiretapped any telecommunications or recorded or eavesdropped on any conversations between other individuals in violation of the provisions of Article 3;

2. A person who has disclosed or divulged the contents of communications or conversations he/she has learned in a manner referred to in subparagraph 1.

– Translation mostly by KLRI (Korea Legislation Research Institute)

Thanks for reading!

‘Statutory Rape’ under Korean Law

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True or False: “In South Korea, having consensual sex with a 12-year-old is always a crime.” A: False.

‘Statutory rape’ here is not a strict liability crime. If you (practically) had no way of knowing (he/she was under 13), it’s not a crime.

I personally find it hard to accept the concept of strict liability in criminal law. “I did not intend to commit a crime + I did not make unreasonable assumptions/mistakes –> But I’m in jail now!?!”

Having said that, I would support raising the age of consent to 16. In such case, we could also do away with the (ancillary) crime of “Sexual Intercourse with a Minor by Means of Authority/Deception.”

The problem with this crime is that it’s too arbitrary/unpredictable in its application. Also, this crime is not really based on the notion that minors are incapable of giving consent. It’s more trying to punish instances where consent was practically coerced (it might as well be rape).

Below is a tidbit I stumbled upon. (In Korea, if a piece of criminal law is found unconstitutional, the effect is also retroactive.)

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Thanks for reading!

SBS Report: Traffic Tickets Revoked En Masse (in Korea)!

Last month, the police (in South Chungcheong Province) decided to crack down on school zone speeding violations near/around one specific elementary school. Well, 2,775 violations were documented by one speed camera (in one month). The police sent traffic tickets (to the speeding motorists) but soon found themselves revoking all of them. Why??

Because the ticketed motorists complained fiercely and collectively. Many of them, who were residents in that area, received multiple tickets. (e.g., One person was ordered to pay almost 1 mil won.) And they basically felt they’d been ambushed and arbitrarily singled out. (Two cameras had been there for about a year, yet suddenly in April the police started to photograph violations.) Sadly, the police caved in saying they could/should have done a better job of notifying the public (in advance).


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Above is a Seoul police banner saying they are (now) cracking down on scooters operating on sidewalks. More than anything, this tells me they don’t normally enforce these laws. The laws exist, I guess, to apportion blame when shit hits the fan. So it’d be unwise for pedestrians (in Korea) to walk expecting motorists to always live up to their end of the bargain. Wait to see if the car/scooter/bike actually comes to a full stop. Thanks!

The ‘Publication’ Requirement for Criminal Insult (in Korea)

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Publicly insulting another person (w/o justification) is a crime in South Korea. But what does “publicly” mean? To any 3rd party??

Here in Korea, the Uijeongbu District Court recently affirmed a lower court decision which had acquitted a person of “Insult” (모욕). The person was indicted for this crime after calling another person “a lunatic who belongs in a psychiatric hospital” in front of police officers. (The two were being questioned by the police for another incident/case.)

The main reasoning for the acquittal was that the “publication” requirement had not been met. The court reasoned that police officers generally have a duty of confidentiality, so it’s unlikely that such a remark would be disseminated (to an unspecified multitude of people).


The photo at the top is from a book titled, Thinking of Answers: Questions in the Philosophy of Everyday Life written by A.C. Grayling. In the book, Grayling goes on to make the point that insulting another person for things he/she has no control over (e.g., race, sex, sexuality, age, disability) is unacceptable. But otherwise, it’s fair game. He says, “So the rule is this: never asperse people for what they physically cannot help being. By all means attack what they choose to think or be; but even here it is better to attack ideas rather than individuals. Best of all, don’t attack anyone for anything until you have given them a proper hearing…”

I think this rule is a sound one, and I do think the crime of “Insult” will one day be found unconstitutional here in Korea. (I would say, even before criminal defamation.) Yet, at the same time, I know I’m only one person and that I can only speak for myself. The strongest counterargument, I feel, to “There’s essentially no free speech in South Korea!” type of arguments is: “Well, why aren’t more Koreans up in arms about it then?” Indeed, I often get the feeling many people here are not only “okay” with criminal insult/defamation but actually want/need it.

To learn more about criminal insult in South Korea, click here.

Thanks for reading!

When Does Scolding Become Criminal for a Daycare Teacher (in Korea)?

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The Seoul Southern District Court recently acquitted a daycare teacher and a principal of child abuse. They were indicted after the teacher had made an unruly 3-year-old “sit and stand” 70 times in a span of 6 mins (i.e., once / 5 secs). The court felt this did not amount to child abuse under Article 17 of the Child Welfare Act (아동복지법). – Link –


Article 17 (Prohibited Acts)

No one shall commit any of the following acts:

1. Trading children;

2. Having a child engage in lewd acts or arranging such acts, or committing sexual harassment or sexual abuse against a child that may make him/her feel sexually ashamed;

3. Committing physical abuse against a child that may hurt his/her body or injure his/her physical health and development;

4. Deleted; <by Act No. 12361, Jan. 28, 2014>

5. Committing emotional abuse against a child that may injure his/her mental health and development;

6. Abandoning a child under his/her protection and supervision, or neglecting the basic protection, rearing, medical treatment and education, including food, clothing and shelter;

7. Placing a disabled child to public viewing;

8. Having a child go begging, or asking for alms by utilizing a child;

9. Having a child do acrobatics that are harmful to the child’s health or safety for the purpose of public recreation or entertainment, or handing over a child to a third person to that end;

10. Mediating rearing of a child by any person who is not an intermediary agency having a legal competence, and thereby receiving, demanding, or promising to offer money or goods;

11. Using the money and goods donated or provided for children for purposes other than originally intended.

Note: According to Article 71, the punishment for prohibited act #3 (above) is imprisonment with labor for not more than 5 years or a (criminal) fine not exceeding 30 million won.

– Translation by KLRI (Korea Legislation Research Institute)


Reasoning for the acquittals:

1) “Sit and stand” 70 times in a span of 6 mins is tolerable even for such a child. Not enough to injure his/her physical health and development.

2) Even after the “sit and stand,” the child seemed unperturbed and went on playing with friends (as confirmed by CCTV footage).

3) The teacher voluntarily informed the parents of what had happened.

The prosecution has decided to appeal. (In Korea, acquittals can be appealed.) They clearly feel it was child abuse especially considering how young the child was. The prosecution is asking for a criminal fine of 3 mil and 2 mil won each. DID YOU SEE? Below, a recent KBS news report about North Korean kids forced into hard manual labor.


FYI: In South Korea, corporal punishment (in primary and secondary schools) is banned under Article 31 of the ENFORCEMENT DECREE OF THE ELEMENTARY AND SECONDARY EDUCATION ACT (초ㆍ중등교육법 시행령). But it was not always thus. I attended 3rd grade here, and I remember our homeroom teacher slapped a student in the face (so hard) that one of his eardrums ruptured. But the shocking part was how blasé everybody seemed back then. Nothing became of the incident (to my knowledge). I believe violence only begets violence. The photo at the very top: hazing back in officer training school. Thanks for reading!

I also recommend this post: http://klawguru.com/2014/12/14/reporting-child-abuse-in-korea/

Korean Police Guidelines for Administering Sobriety Tests

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Article 38 of the Police Guidelines for Traffic Enforcement Procedures (교통단속처리지침) is worthy of note. It outlines the procedures police officers are told to follow when administering (chemical) sobriety tests. I have paraphrased each paragraph into English. All errors are my own!


제38조 (측정요령)

① 운전자에 대하여 음주여부를 측정하는 때에는 기기의 정상작동 상태를 확인점검한 후 이상이 없는 때에 측정하여야 한다. –> Before testing, the officer is to check if the breathalyzer is actually working properly…

② 음주측정시에 사용하는 음주측정기용 불대(mouth piece)는 1인1회 사용함을 원칙으로 한다. –> In principle, the mouth piece (aka straw) is for one-time use only…

③ 음주측정자는 음주측정시에 운전자에게 최종 음주시간 및 구강청정제등 유사 알콜 사용여부를 확인하여 구강내 잔류알콜(음주시부터 구강내잔류 알콜 소거에 20분소요)에 의한 과대 측정을 방지하여야 한다. –> The officer is to ask the driver: 1) when (exactly) he/she finished drinking + 2) whether he/she used any alcohol-based mouthwash (within the past 20 mins)…

④ 운전자에 대한 음주측정 결과 혈중알콜농도 0.05% 이상으로 주취운전자 적발보고서를 작성하여야 하는 때에는 피측정자에게 측정결과와 채혈에 의한 측정방법이 있음을 고지하여야 하며, 체포시에는 미란다원칙을 명확히 고지하고 이의가 없음을 확인한 후 별지 제16호 서식의 주취운전자 정황진술보고서에 정확하고 상세하게 기록하여 공소유지 등을 위한 수사자료를 확보하여야 한다. –> When the BAC is 0.05% or higher, the officer is to notify the driver that he/she may ask for a blood test… When making an arrest, the officer is to (clearly) give Miranda Warning…

⑤ 주취운전자 적발보고서에 기재할 때에는 반드시 본인여부를 운전면허증(주민등록증 등)으로 명확히 확인하여야 한다. –> When writing up a report, the officer is to first verify the driver’s identity by asking for a valid ID…

⑥ 피측정자가 채혈을 요구하거나 측정 결과에 불복하는 때에는 주취운전자 적발보고서를 작성한 후 즉시 피측정자의 동의를 얻어 가장 가까운 병원 등 의료기관에서 별표 제1호에 의한 방법으로 채혈한 혈액을 별지 제17호 서식에 의하여 반드시 국립과학수사연구소에 감정의뢰 하여야 한다. –> When the driver asks for a blood test, the officer is to, without delay, go and collect his/her blood at the nearest medical facility… The blood sample must then be sent to the National Forensic Service (for analysis)…

⑦ 피측정자의 혈액을 채취한 때에는 해당사항을 전산입력하고, 종결된 건은 별지 제18호서식의 채혈대장을 출력하여 비치관리하여야 한다. –> In the event a blood test is conducted, the officer is to make a note of it (in the reports)…

⑧ 음주정도 측정시 처음부터 채혈을 원하는 운전자에 대하여는 주취운전자 적발보고서 측정결과란에 채혈요구X로 기재하여 작성하고 전산입력하며, 감정결과에 따라 주취운전자 적발보고서를 별도 작성하여 합철처리한다. –> Should the driver want to skip the breathalyzer test (altogether) and ask for a blood test right away, the officer is to make a note of this as well…

⑨ 음주측정기에 의한 측정결과에 불복하여 채혈한 혈액을 감정의뢰한 때에는 적발보고서 측정결과란에 기기측정결과를 기재하여 작성하고 전산입력하며, 감정결과에 따라 주취운전자 적발보고서를 별도 작성한 후 행정처분 및 형사사건 서류에 최초 주취운전자 적발보고서와 합철처리하여야 한다. –> Even when the driver refuses to accept the breathalyzer test result and (so) asks for a blood test, the officer is to (still) make a record of the breathalyzer BAC…

⑩ 채혈하여 감정의뢰 한 경우 감정결과는 음주측정기 측정결과에 우선한다. –> A blood test result prevails over a breathalyzer test result…

⑪ 음주측정 요구에 불응하는 운전자에 대하여는 음주측정 불응에 따른 불이익을 10분 간격으로 3회 이상 명확히 고지하고, 이러한 고지에도 불구하고 측정을 거부하는 때(최초 측정요구시로부터 30분 경과)에는 측정결과란에 측정거부X로 기재하여 주취운전자 적발보고서를 작성한다. –> In the event the driver refuses to comply with any tests whatsoever, the officer is to warn the driver of the (legal) consequences at least 3 times (i.e., once every 10 mins)… If the driver still refuses to comply even after 3 separate warnings were given (i.e., 30 mins should have elapsed at this point), the officer is to make a note of this in the report…

⑫ 운전자를 측정거부자로 처리하는 때에는 동승자, 기타 참고인을 확보하여 추후 부인하는 경우 등에 대비토록 한다. –> When categorizing a driver as someone who ultimately failed to comply (as just explained above), the officer should try to get a hold of any passengers or witnesses (to prepare in the event the driver later denies everything)...

⑬ 측정거부 또는 음주운전으로 주취운전자 적발보고서 작성이 완료된 이후에는 당해 운전자의 요구가 있더라도 호흡측정 하여서는 아니 된다. 다만 측정 결과에 불복하면서 채혈을 요구할 경우 시간적 차이가 없거나 약물 기타 혈중알콜 농도에 영향을 주는 행위가 없는 경우 채혈하여 그 결과에 따라 처리하고, 상당한 시간 경과 등으로 혈중알콜농도에 영향을 미칠 수 있는 행위가 있을 경우 채혈하되 그 내용을 상세히 기록하는 등 수사보고서를 작성 보강증거로 활용한다. –> Once the driver has officially been categorized as someone who ultimately failed to comply, a breathalyzer test can no longer be conducted… In the event the driver asks for a blood test after a breathalyzer test, the officer is to accede to this demand… But, should there have been any actions/circumstances which could potentially affect the blood test result (e.g., too much time has elapsed), the officer is to make a (detailed) note of them…

⑭ 위드마크 계산법을 적용하는 경우, 적발보고서는 음주측정 또는 진술에 의한 음주수치를 측정결과란에 기재하여 작성하고, 위드마크 적용수치는 결과란 하단에 적색으로 기재한다. 단, 전산입력시 측정결과는 위드마크 적용수치를 입력한다. –> When using/applying the Widmark formula, the officer is to make a note of this…


[BONUS 1: FAQ]

Q: The officer failed to inform/remind me of my right to ask for a blood test. Can I challenge my breathalyzer BAC (on this ground)?

A: It’s unlikely you’d be successful. In order to nullify a test result, the officer’s mistake must have been something major (e.g., Miranda). Granted, it is hard to say definitively what is and isn’t “major.”


[BONUS 2: Interesting Supreme Court Cases]

1) 2001도7121: When the driver had properly asked for a blood test (but was denied), his/her breathalyzer test result is inadmissible as evidence.

2) 2006다32132: “Without delay” in Article 38(6) basically means “without unreasonable, long delay” as opposed to “right away, at the scene” or “right away, before any other/further procedure…”

3) 2013도8481: Pulling (a resisting driver) by the arm into a room (to conduct a sobriety test) is illegal. Therefore, such a driver cannot be punished for his/her refusal to comply with a sobriety test (in the room). This is true even when the driver came to the police station willingly.

Thanks for reading!

Voter Bribery under Korean Law

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In Korea, the Chuncheon District Court recently found a newly-elected lawmaker guilty of voter bribery and ordered him to pay a criminal fine of KRW 700,000 (USD 606). He was on trial for having given KRW 300,000 to one constituent and 100,000 to another (during a local sports day event). Nevertheless, he will keep his job as lawmaker because the criminal fine sentenced was smaller than 1 mil won. Please see below.


PUBLIC OFFICIAL ELECTION ACT (공직선거법)

Article 113 (Restriction on Contributions by Candidates, etc.)

(1) A National Assembly member, a local council member, the head of a local government, the representative of a political party, a candidate (including a person intending to become a candidate), and their spouse shall not “make a contribution” (including officiating at a wedding) to those within the relevant constituency, or institutions, organizations or facilities, or to those having connections with the electorate even if they are outside of the relevant constituency, or institutions, organizations or facilities.

(2) No person shall be allowed to promise, instruct, solicit, mediate or demand the acts referred to in paragraph (1).

Article 257 (Violation of Prohibition and Restriction on Contributions)

(1) Any of the following persons shall be punished by imprisonment with prison labor for not more than 5 years or by a fine not exceeding 10 million won:

1. A person who violates Article 113, 114 (1) or 115;

Article 264 (Invalidity of Election due to Election Crimes of Elected Persons)

If an elected person is sentenced to imprisonment with prison labor or a (criminal) fine of 1 million won (or more) on account of committing the crime provided for in this Act or the crime provided for in Article 49 of the Political Funds Act in the election concerned, his/her election shall become invalidated.

– Translation mostly by KLRI (Korea Legislation Research Institute)


In his defense, the lawmaker said:

1) He gave the KRW 300,000 to a tennis coach, telling him it should go towards his school.

2) He then gave KRW 100,000 to a person (he’d just played tennis with) because he lost a bet.

Of course, the court didn’t believe him. The prosecution had asked for a criminal fine of 3 mil won, but the court took into account (the following) mitigating factors and cut him considerable slack:

1) He had no priors.

2) The (total) amount involved was relatively low.

3) Due to redistricting, that region is no longer part of his constituency.

4) The bribes took place relatively long before the election (15 months).

Allow me to introduce you two more election crimes. One is about taking photos of ballot papers, and the other involves maligning a candidate.


Article 166-2 (Prohibition of Photographing Ballot Papers)

(1) No one shall photograph ballot papers in the polling stations.

–> Punishment is imprisonment with prison labor for not more than 2 years or a (criminal) fine not exceeding 4 million won.

Article 251 (Maligning a Candidate)

Any person who maligns a candidate (including a person who intends to be a candidate), his/her spouse, lineal ascendants or descendants, siblings by publicly making a true statement through a speech, broadcast, newspaper, communication, magazine, poster, propaganda document, or other means, with the intention of getting elected, or getting another person to be or not to be elected, shall be punished by imprisonment with prison labor for not more than 3 years or by a (criminal) fine not exceeding 5 million won. However, if the true statement concerns a public interest, he/she shall not be punished.

– Translation mostly by KLRI (Korea Legislation Research Institute)


You’ve maybe heard of Article 166-2(1). What’s interesting about Article 251, though, is that it deals with true statements. It’s very similar to how criminal defamation is handled under the Criminal Act (형법). FYI, maligning a candidate via lies is also a crime. Please see Article 250.

Thanks for reading!