South Korea: How Cyber Defamation Can Land You In Jail

criminal defamation in korea

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

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

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


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

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

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

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

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

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


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

cyber defamation1111


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

cyber defamation1345


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

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

Article 311 of the Criminal Act

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

- Translation by KLRI (Korea Legislation Research Institute)

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

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

crime of insult twitter

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

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

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

Thanks for reading!

Adultery No Longer A Crime (In Korea)!

adultery 2015

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

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

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

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


Article 241 (Adultery)

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

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

- Translation by KLRI (Korea Legislation Research Institute)


9_justices_2015

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

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

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


헌법재판소5678

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

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

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

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


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

<What It Means>

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

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

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

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

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


 <What It Does Not Mean>

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

- “South Korea decriminalises adultery” : Good!

- “South Korea legalises adultery” : Hmm…

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

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

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

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

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

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


 <Afterword: Korean Law Changes Suddenly & Swiftly>

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

법제처 법령안 입법예고

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

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

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

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

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

[Example Situation]

dwightjimandy

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


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

I. The Ruling

The Seoul Central District Court found for the plaintiffs.

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

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

II. Reasoning

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

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

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

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

III. Disciplinary Dismissal under Korean Law

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

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

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

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

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

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

IV. Related Case

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

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

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

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

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

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

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

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

Thanks for reading!

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

[Example Situation]

indecent act 1234

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

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


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

I. The Ruling: “Not Guilty!”

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

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

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

II. Reasoning: “Not Sexual!”

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

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

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

III. Related Tidbits

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

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

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

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

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

Thanks for reading!

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

[Example Situation]

cyber defamation 5678

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


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

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

I. The Ruling

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

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

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

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

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

II. Reasoning

1) Why is Mr. Yoon going to jail?

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

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

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

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

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

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

III. Additional Comments

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

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

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

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

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

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

Thanks for reading!

Taking a Drunk Coworker/Friend Home (in Korea)

[Example Situation]

골목길1267

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


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

I. The Ruling

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

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

II. Reasoning

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

III. The Bottom Line

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

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

Thanks for reading!

Test Your Knowledge of DUI Law (in Korea)

음주운전단속

In Korea, the legal threshold for “drunk driving” is a BAC of 0.05 or above. This is normally attained after 2-3 shots of soju or 2-3 bottles of beer. For fun, below are 10 “true or false” questions. Why not give them a try? I use the terms “DUI/DWI” and “drunk driving” synonymously. Answer key at the bottom of this post.


1. “Drunk driving” is a crime.

2. If you were sitting in the driver’s seat and the vehicle was turned on, you can be punished for “drunk driving” even if the vehicle did not move an inch.

3. You can be punished for “drunk driving” even while parking at the basement parking lot (of your apartment complex).

4. Even 49cc (moped) scooters are subject to the same “drunk driving” laws. But, bicycles are not.

5. If you, even once, refuse (unjustifiably) to comply with a breathalyzer test, you can be punished for the crime of “Failure to Comply with Sobriety Test.”

6. “Failure to Comply with Sobriety Test” is a crime; therefore, you can be arrested on the spot.

7. A driver who is clearly too drunk (at the scene) to comply with a breathalyzer test cannot be punished for “Failure to Comply with Sobriety Test.”

8. A driver can ask for a “blood test” before or right after undergoing the breathalyzer test.

9. A person who tries to take the rap for a friend’s “drunk driving” can face criminal punishment for “harboring a criminal.”

10. Your DUI/DWI can be “expunged” from your criminal record.



 <DUI Tidbits>

1. Controversial “DUI Checkpoint Apps”

음주단속앱33

Above is a screenshot of a well-known “DUI checkpoint app” here in Korea. A “DUI checkpoint app” is a mobile app which allows users to tip one another off (real-time) about police checkpoint for “drunk driving.” I tried downloading one for the first time. This one is called “더더더” (which translates to “More, More, More.”) The app is called “More, More, More” because that is normally what police officers tell a driver who is blowing into a breathalyzer. Currently, there are more than 10 such apps, and there is no law to ban them. The police are having a hard time.


2. Sample Police Documents

1음주측정확인서2적발보고서3정황진술보고서4채혈확인서


3. Mouthwash Users

mouthwash123Sometimes, recent use of (alcohol-based) mouthwash can affect the results of a breathalyzer test. In Korea, the above are said to be the most likely. If you use mouthwash frequently, you should mention this to the officer and ask for an opportunity to gargle your mouth with water (first). You could even ask for a blood test. Blood test results normally prevail over breathalyzer results, but they could take up to 10 days to come out.

Gargling (입헹굼) Issue: If you expressly asked for an opportunity to gargle but were denied, that could be illegal. In contrast, failure (by an officer) to voluntarily offer or inform of such an opportunity is unlikely to be illegal. I read of a lower court case saying that the absence of an opportunity to gargle does not, in itself, negate a breathalyzer test result.


4. Unpunishable DUIs

The law is never as “black and white.” Some “drunk driving” are not punishable. For instance, if you were driving drunk to quickly get someone to the ER. Article 22 of the Criminal Act (형법) will exempt you from punishment in such instances:

Article 22 (Necessity)

(1) An act which is performed in order to avoid impending danger against the one’s own or another person’s legal interest shall not be punishable when there are reasonable grounds.

(2) The provisions of the preceding paragraph shall not apply to a person charged with duties not to avoid the danger.

(3) The provisions of paragraphs (2) and (3) of the preceding Article shall apply mutatis mutandis to this Article.

– Translation by KLRI (Korea Legislation Research Institute)


5. Comedian DUIs

Recently, comedian Noh Hong-chul was charged with “drunk driving.” Yes, he was the “elevator guy” in Psy’s “Gangnam Style” music video. Noh has since withdrawn from all shows including Infinite Challenge. It was reported that he was caught while trying to move his illegally parked car to another area.

Last year, comedian Yoo Se-yoon was fined for “drunk driving.” It became news at the time because Yoo turned himself in. And, it wasn’t like there was an outstanding warrant for his arrest. The police were probably like: “So you did what now?” This was unheard of. Yoo recently appeared on JTBC saying (he thinks) his fine was reduced from 3 million to 2 million won (for that).


6. Replacement Driver Services

In Korea, there are “replacement driver services” (대리운전) available. You can call and have someone drive you and your car home (for 10-30 bucks). But, make sure the company has insurance. It’s a good idea to use one, reliable company repeatedly. Try not to use drivers who solicit on the spot.

In case of an accident (caused by a replacement driver), the (insured) company is responsible for all property damage as well as injuries to the passengers of the vehicle that was being driven. But, the owner of the vehicle (i.e., his/her insurance) is still responsible for injuries to 3rd parties.

If you use such services often, you could opt for the so-called “대리운전 위험담보 특약” found in most auto insurance plans. For an extra KRW 20,000 – 30,000 (each year), your insurance will also cover all replacement driver-related accidents. Regardless of whether the replacement driver (company) has insurance.

Remind your replacement driver to drive safely and make sure he/she parks your car completely. If you try to re-park, that could constitute “drunk driving.” Also, remember that you could still be drunk the next morning. Try to use public transportation.

Legal Tidbit: In Korean law, “대리” or “대리권” normally means “agency” (as in principal/agent).



<Answer Key>

1. True. “Drunk driving” is a crime, and it will be entered into the offender’s criminal record.

2. False. The motor vehicle has to actually move (at least) some distance.

3. True. “Drunk driving” laws apply even when operating a motor vehicle outside the “road.”

4. True. “Drunk cycling” is prohibited, but there is currently no law which outlines punishment for such behavior.

5. False. A driver normally has to refuse at least 3 times (in a period of at least 30 minutes). This is why there is currently criticism that a drunk driver could resort to “delaying tactics.”

6. True. In such case, no warrant is necessary. When being arrested, the Miranda Warning must be given or all subsequent test results will be inadmissible in court.

7. True. A driver who is clearly too drunk to even realize what is going on cannot be punished for this crime.

8. True. Before or right after. FYI, right after a “positive” breathalyzer test result, the driver must be notified of such right. The request for a blood test must be made w/i 30 minutes from the breathalyzer test. Also, if the blood sample is taken more than 30 minutes after making such a request, the blood test result will be relegated to the status of “corroborating evidence.” That is why one should head over to the nearest hospital (w/ the police) quickly.

9. True. For a friend, yes. (FYI, for a “relative” or “family member,” no.) See Article 151 of the Criminal Act.

10. False. You can only have your fine (벌금) “not appear” if 2 years has elapsed since payment.


DID YOU KNOW?

the punishments3

A summary of the punishments for “drunk driving” and related offenses. FYI, “Failure to Comply with Sobriety Test” is separate crime from “drunk driving.” Why drink and drive anyway?


DID YOU KNOW?

Every year, Korean law enforcement likes to crack down on “drunk driving” in December and January (i.e., right now). According to the news report above, DUI checkpoints are normally set up between the hours of 10 p.m. and 6 a.m.


One final thing I want to mention is that you should never get on a vehicle driven by a drunk driver. In a worst-case scenario, the passenger can face criminal punishment (for “aiding and abetting”) if the drunk driver ends up killing someone. Also, if the passenger knew the driver was drunk, he/she can be held 40% responsible for his/her own injuries in case of an accident. Even when the passenger was too drunk to have any recollection of boarding, he/she can be held 30-35% responsible. So, the idea is you should always make plans (beforehand) on how to get home safely. “Drunk driving” can instantly ruin many people’s lives.

Thanks! I will try to update this post. Stay safe!

Reporting Child Abuse (in Korea)

공익광고

In Korea, the main governing law regarding “child abuse” is the Act on Special Cases Concerning the Punishment, etc. of Child Abuse Crimes (아동학대범죄의 처벌 등에 관한 특례법). This new law came into effect on September 29, 2014.


I. What are “Child Abuse Crimes?”

1. “Child” (아동) refers to anyone under the age of 18 (international age).

2. “Child Abuse” (아동학대) refers to the following acts perpetrated by any adult (to a child):

1) Doing harm to a child’s health or welfare; or

2) Committing physical, mental or sexual violence; or

3) Inflicting cruel acts that are likely to impede normal growth of a child.

Also, “Child Abuse” includes abandoning or neglecting a child, by his/her guardian.

FYI, “guardian” (보호자) refers to a person who is legally/contractually obligated (at the time) to look after the child.

3. “Child Abuse Crimes” (아동학대범죄) refer to any type of “Child Abuse” perpetrated specifically by the guardian of the child. By the strict letter of the law, this includes “corporal punishment.”


II. Reporting “Child Abuse Crimes”

1. Anyone May Report

Anyone who even suspects a “Child Abuse Crime” may report it to the authorities. The number is 112 (i.e., the police). It’s available 24/7. The key here is that one need not have definitive knowledge. Mere suspicion okay!

2. Some Must Report

Some workers/professionals have an affirmative legal obligation to report “Child Abuse Crimes.” A duty to report even in mere suspicion. Generally speaking, a worker/professional officially engaged in work relating to children (e.g., education) will have a duty to report. This includes all “school personnel” and even “hagwon managers, instructors, and personnel.”

FYI, Article 19 of the Elementary and Secondary Education Act (초ㆍ중등교육법) defines “school personnel” as follows:

Article 19 (Classification of School Personnel)

(1) The following teachers shall be assigned to schools:

1. Elementary schools, middle schools, high schools, civic schools, high civic schools, high technical schools and special schools shall have principals, assistant principals, advanced skills teachers and teachers: Provided, That any school which is smaller than a certain scale prescribed by Presidential Decree among schools with not more than 100 students or not more than 5 classes may not have an assistant principal;

2. Various kinds of schools shall have required teachers in the manner described in subparagraph 1.

(2) Schools shall have personnel in addition to teachers, such as administrative personnel necessary for the operation of schools.

(3) Schools may have teachers holding positions who share school affairs among teachers to ensure the smooth operation of schools.

(4) Matters necessary for the number of teachers and personnel (hereinafter referred to as “school personnel”) to be assigned to schools shall be prescribed by Presidential Decree, specific assignment standards by level of school shall be determined by guidance and supervision organization referred to in Article 6 (hereinafter referred to as “competent authorities”) and the Minister of Science, Education and Technology shall report the matters on the number of teachers to the National Assembly each year.

- Translation by KLRI (Korea Legislation Research Institute)


III. Punishment for Failure to Report

아동학대2

A relevant worker/professional who fails to report a “Child Abuse Crime” could face a fine (과태료) of up to 5 million won. In October 2014, 3 middle school teachers in Gangwon-do were each fined (1.5 million won) for failure to report a “Child Abuse Crime.” This was the first such case. It seems that the teachers were fully aware that a female student in their class was habitually being abused by her parents. Reports say the parents were being physically abusive. They even forcefully cut her hair as punishment. The teachers were fully aware, yet did nothing.

It should be noted that failure to report is not a crime. Unlike “벌금” (which is also translated as “fine”), a fine in the form of “과태료” means the corresponding violation is not a crime. So, such a violation will not be entered into one’s criminal record.

Above was the old government pamphlet. Since September 2014, the maximum fine (for failure to report) has been upped to 5 million won (from 3 million). Also, the number to call now is 112.


IV. Reporting vs. Intervening Directly

Once reported, the police (or child protection agency personnel) are required to respond “w/o delay.” They will go investigate and take the appropriate “emergency measures.” If serious, the child can even be removed or taken to a protective/medical facility for a maximum of 72 hours (which can be extended). If deemed necessary, the judge can further take “temporary measures” such as issuing a restraining order.

But, what about intervening directly? If you read the Act on Special Cases Concerning the Punishment, etc. of Child Abuse Crimes, you’ll notice it says nothing about a 3rd party’s right to intervene directly. In such case, Article 21 of the Criminal Act (형법) could apply. Yes, the “self-defense” clause. In Korea, “self-defense” includes “defense of others.” So, if you witness firsthand a “Child Abuse Crime” being perpetrated, you would have the (legal) right to physically intervene directly.


V. What Lies Ahead

I recently read that the number of “child abuse” reports have gone up in the last couple of months (which is good). Still, some experts point out we desperately need more budget. For instance, with the current level of staff/personnel, it’s sometimes hard to respond “w/o delay.” Also, we need better ways to protect the identities of those who actually make the reports. Many Koreans are still averse to reporting lest they fall victim to some form of retaliation from the abusive (and maybe hot-tempered) parents.

Above is an informative video clip on preventing/reporting “child abuse.” It was distributed by the National Child Protection Agency (중앙아동보호전문기관) right after the new law came into effect. The Agency has even come out with app (for Android and iOS) with some helpful info. Find it by typing in “착한신고.”

착한신고3

Thanks for reading! I will try to update this post.

Types of Parking Violations (in Korea)

주차금지11123

Above is what a (motor vehicle) parking ticket/citation looks like in Korea. Interestingly, Korean parking tickets kindly outline the 12 possible stop/parking violations subject to a fine (과태료).

I have used orange (above) to highlight those 12 violations. FYI, the above vehicle violated #10 from that list.

The 12 violations (in English) are:

1. Stopping or parking at an intersection, crosswalk, sidewalk, or railroad crossing.

2. Stopping or parking at a place located w/i 5 meters from the edge of an intersection or the corner of a road.

3. Stopping or parking at a place located w/i 10 meters from any side of a “safety zone.”

4. Stopping or parking at a place located w/i 10 meters from any pillar, board, or line indicating a bus stop.

5. Stopping or parking at a place located w/i 10 meters from the edge of a railroad crossing or a crosswalk.

6. Parking inside a tunnel or on a bridge.

7. Parking at a place located w/i 3 meters from a “fire alarm box.”

8. Parking at a place located w/i 5 meters from a place where any fire-extinguishing equipment is located or being kept.

9. Parking at a place located w/i 5 meters from both edges of an area where “road works” are underway.

10. Stopping or parking at a road specifically designated as a “no stop/parking area.” (Or, a place designated by the Commissioner of a Local Police Agency as being necessary to prevent danger on the road and to ensure safe & smooth flow of traffic.)

11. Parking in a manner that hinders regular traffic.

12. Parking in violation of time/manner restrictions, etc.

Note 1: Basically, the above is a nice summary of Articles 32-34 of the Road Traffic Act (도로교통법).

Note 2: Of course, there are exceptions for certain exigent circumstances and/or emergency vehicles.

no parking korea 3412


In Korea, the fine (과태료) for a parking violation is normally KRW 40,000 (USD 36). Unless the driver can be located/found (then and there), the vehicle owner is obligated to pay. The fine can be paid from the next day (of violation). Traffic fines can be accessed and paid via the www.efine.go.kr website too.

When a parking violation is spotted, the enforcement officer will normally photograph/record the vehicle (as it’s parked) and slap a ticket/citation on the windshield. If the vehicle is not removed w/i a reasonable period of time, it will be towed. Of course, unreasonable tickets/citations can be challenged.


 TIPS & TIDBITS

1. A parking violation, in itself, is not a crime. Meaning, such a violation will not be entered into one’s criminal record. What is a crime, however, is the act of “deliberately covering up one’s license plate number.” I recently read that one such person ended up paying a fine (벌금) of KRW 700,000. A fine in the form of “벌금” (as opposed to “과태료”) means that the corresponding violation constitutes a crime.

2. I recently heard in the news that a man in his 40s murdered two of his neighbors (who were sisters) in Bucheon. According to reports, the man was often seen arguing with the sisters over a parking space. The murder seems to be related to the parking issue. In Korea, neighbors most often argue over parking space or “between-floor noise” (i.e., noise travelling between apartment floors). These arguments sometimes get out of hand.

3. Some major cities/districts currently run what is called “Resident Priority Parking” (거주자우선주차). It’s a city/district-run system designed to help ameliorate the parking situation especially in residential areas. Alleys and/or small roads in the neighborhood are offered as parking spaces (first) to its residents for a relatively small fee. You don’t necessarily have to be a “resident,” but priority will be given to them. To apply, try contacting the “facilities management corporation” of your “district” (구 시설관리공단). You can visit (in person) or apply via the internet or fax too.

거주자우선54433거주자우선6786

Thanks for reading! I will try to update this post.

– If you’d like to see many photos of illegally parked motor vehicles in Korea, click here.

– If you’d like to learn about “Handicapped Parking in Korea” click here.

Denial of Entry (to South Korea)

입국심사456

I recently read in the news that “pickup artist” Julien Blanc might be denied entry to South Korea. That the Korean Ministry of Justice are mulling “denial of entry” should he (try to) come.

In Korea, Article 11 of the Immigration Control Act (출입국관리법) deals with “denial of entry” (입국거부). I have colored below the most often-cited causes.

FYI, Article 11 applies only to foreigners. In principle, (South) Koreans cannot be denied entry to (South) Korea.

Unlike many other articles of the Korean Constitution which apply to both Koreans and foreigners, Article 14 of the Constitution guarantees only to Koreans the “freedom of residence and the right to move at will” (거주이전의 자유).

Anyway, Article 11 of the Immigration Control Act below.


Article 11 (Prohibition, etc. of Entry)

(1) The Minister of Justice may prohibit any of the following foreigners from entering the Republic of Korea:
1. A contagious patient, a narcotics addict or other persons deemed likely to cause danger and harm to public health;
2. A person who intends to enter the Republic of Korea unlawfully carrying firearms, guns, swords, explosives, etc. prescribed in the Control of Firearms, Swords, Explosives, etc. Act;
3. A person deemed highly likely to commit any act detrimental to the interests of the Republic of Korea or public safety;
4. A person deemed highly likely to commit any act detrimental to the economic or social order or the good morals;
5. A mentally disable person who is void of a capacity of discriminating sense and has no person to assist his/her sojourn in the Republic of Korea, a person who cannot afford expenses related to sojourn in the Republic of Korea, and other persons in need of relief;
6. A person for whom five years have not elapsed after departure from the Republic of Korea under a deportation order;
7. A person who took part in the slaughter or cruel treatment of people on the grounds of race, ethnicity, religion, nationality, political opinion, etc. under instructions from or in liaison with any of the following governments from August 29, 1910 to August 15, 1945:
(a) The Japanese government;
(b) Any government which was in alliance with the Japanese government;
(c) Any government on which the Japanese government exercised predominant influence;
8. A person comparable to any those under subparagraphs 1 through 7 whose entry into the Republic of Korea is deemed inappropriate by the Minister of Justice.
(2) If the home country of a foreigner who intends to enter the Republic of Korea refuses the entry of a national of the Republic of Korea for any reason, other than those referred to in the subparagraphs of paragraph (1), the Minister of Justice may refuse the entry of such foreigner for the same reason.

- Translation by KLRI (Korea Legislation Research Institute)


In a nutshell, Article 11 pretty much gives carte blanche to the Minister of Justice. You can pretty much fit anything in. In a way, this is not too unusual as “denial of entry” is essentially a matter of state sovereignty.

Korean singer Lee Seung-chul was recently denied entry to Japan (at Haneda Airport). According to reports, Japanese officials (ambiguously) cited “due to recent events (regarding him)” as the reason. Many here believe it was because Lee had performed one of his songs in Dokdo (Island) last August.

DID YOU KNOW? In the last 3 years, 4069 (South) Koreans were denied entry to the U.S.


I guess the most well-known / controversial incident involving Article 11 was the “denial of entry” (in 2002) of former K-pop singer Yoo Seung-jun (aka Steve Yoo). Yoo was arguably the most popular K-pop singer in Korea back then. In short, Yoo was denied entry to Korea because he reneged on a “public promise” to serve in the military. At the time, the Korean government had even gone out of their way to let him perform abroad, but (while abroad) Yoo stopped by the U.S. to obtain his American citizenship and renounce his Korean nationality. (Yoo grew up in the U.S.) The government (i.e., the Military Manpower Administration) felt what he’d done would negatively impact Korean men serving in the military. I’m sure “betrayal” must have been a factor too. So, Yoo (as an American) was denied entry in February 2002. As far as I remember, causes #3, #4, and #8 were all cited by the Ministry of Justice. I can still remember watching evening news footage of an airport officer informing Yoo that he’d just been denied entry. Yoo was at a loss for words.

I think military service is (or has become) a very sensitive issue here in Korea. As a direct result of the Yoo incident, military service has become more transparent and stringent vis-à-vis celebrities. Before, there used to be quite a few instances where male celebrities had cryptically dodged the draft. (In Korea, military service is mandatory for all men.) Now, practically all male celebrities serve. Kim Heechul of Super Junior chose to serve even though he technically did not have to (due to serious injuries he’d previously sustained).

Many in Korea are still divided over the Yoo incident. Some feel Yoo’s “betrayal of public trust” was unforgivable especially given his rare “clean & honest” public image (which I felt was genuine). Others feel “denial of entry” was too harsh and it’s about time we let him in. In his defense, Yoo was most likely doing what he was told to do by his record/management company and/or people around him. Yoo had repeatedly said on TV that he would serve, and I cannot personally see him as having planned out (from the git-go) to mislead people this way.

To this day, Yoo is banned from South Korea.


For fun, below is a list of countries whose nationals may enter South Korea w/o a visa. It’s from the 2014 Diplomatic White Papers published by the Korean Ministry of Foreign Affairs.

무사증입국568

Thanks for reading! Have a great week!