Korean Law Demystified!

Pokhaeng vs. Sanghae

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“Crimes against the person” refer to crimes that are committed by causing (or attempting to cause) direct physical harm to another person. In Korea, pokhaeng and sanghae are the two most commonly perpetrated non-fatal, non-sexual “crimes against the person.”

I. The Crime of Pokhaeng (폭행)

One night, Jin and Tony have a little too much gin & tonic. They get into an altercation with each other. Unable to control his anger, Jin grabs Tony by the collar and slaps his face several times. Tony suffers no external injuries. What crime, if any, has Jin committed? Assume this is taking place in Korea.

Elements of Pokhaeng

According to Article 260(1) of the Criminal Act (형법), the punishment for pokhaeng is imprisonment for not more than two years, a (criminal) fine not exceeding five million won, detention, or a minor fine. For this crime, the perpetrator cannot be prosecuted against the express objection of the victim (Article 260(3)). “Habitual offenders” may face more severe punishment (Article 264). In order to qualify as pokhaeng:

1) A person has to apply force against the body of another person

2) With the intent to commit pokhaeng.

This crime is normally translated either as “Assault” or “Violence.” The literal translation of pokhaeng is “violent conduct.” At any rate, pokhaeng is a unique crime which possesses aspects of both assault and battery under American law.

For the purposes of this crime, the term “force” refers to physical force capable of causing bodily pain. “Force” may also be applied in the form of sound.

Such “force” must be applied specifically against the body of another person. But unlike battery under American law, “physical contact” is not a requirement. A stone deliberately thrown at someone could still constitute this crime even if the stone misses the targeted individual.

Earlier this month, a man was charged with pokhaeng after he threw filth (manure + soybean paste) during Kim Jho Kwang-soo and Kim Seung-hwan’s wedding. (Note: Their wedding was the first public gay wedding in Korea, where same-sex marriage has yet to be recognized.) The man claimed to be a church elder who thought homosexuality was a sin. In this case, the authorities were able to charge him with this crime because the filth was aimed at a person. Throwing filth at objects/structures will not constitute pokhaeng (Supreme Court Decision of February 8, 1977, 75Do2673). In such case, the perpetrator could face punishment – albeit a lighter one – under the Punishment of Minor Offenses Act (경범죄처벌법).

Pokhaeng is usually perpetrated by deliberately hitting/slapping/shoving another person. Forcibly cutting/shaving another person’s hair is also likely to constitute this crime (Supreme Court Decision of March 23, 2000, 99Do3099). Most often, pokhaeng is perpetrated when altercations become physical.

The application of negligible force – such as pulling another person’s arm – is not a crime. In essence, pokhaeng is the deliberate application physical force which falls short of inflicting “bodily injury” upon another person. Otherwise, the crime is sanghae under Article 257(1).

A person cannot be indicted for pokhaeng against the express objection of the victim. This essentially means that a person will not face criminal punishment when a settlement is reached between the parties.

Perpetrating this crime with consent of the victim negates criminality (e.g., performing a play, playing ice hockey) unless the consent itself is deemed to violate so-called “social norms.”

When pokhaeng is perpetrated against an “ascendant” (존속), the punishment is more severe. An “ascendant” refers to a “lineal ascendant” of either spouse (if married). A “lineal ascendant” is someone who is in direct line of ascent such as one’s parents or grandparents. Like the crime of “Killing Ascendant” (존속살해), this reflects the Confucian influence (e.g., filial piety) on contemporary Korean law.

When pokhaeng is perpetrated through the threat of collective force or by carrying a dangerous object, the crime becomes teuksoo-pokhaeng (특수폭행) aka “Special Violence.” For instance, deliberately knocking someone to the ground with one’s car (i.e., a dangerous object) constitutes “Special Violence” (Supreme Court Decision of May 30, 1997, 97Do597). In accordance with the Punishment of Violences, etc. Act (폭력행위등처벌에관한법률), the perpetrator(s) will face more severe punishment.

Jin’s Crime

By deliberately slapping Tony’s face, Jin has committed the crime of pokhaeng under the Criminal Act. No consent was given.

II. The Crime of Sanghae (상해)

One night, Jin and Tony have a little too much gin & tonic. They get into an altercation with each other. Unable to control his anger, Jin grabs Tony by the collar and slaps his face several times. Tony loses consciousness as a result. He regains consciousness on the way to the hospital and suffers no external injuries. What crime, if any, has Jin committed? Assume this is taking place in Korea.

Elements of Sanghae

According to Article 257(1) of the Criminal Act, the punishment for sanghae is imprisonment for not more than seven years, suspension of qualifications for not more than ten years, or a (criminal) fine not exceeding ten million won. An attempt to commit this crime is also punishable (Article 257(3)). “Habitual offenders” may face more severe punishment (Article 264). In order to qualify as sanghae:

1) A person has to inflict bodily injury upon another person

2) With the intent commit sanghae.

This crime is normally translated as “Inflicting Bodily Injury.” The literal translation of sanghae is “infliction of harm.”

Sanghae is a crime rather hard to pin down. There isn’t one definitive rule regarding what exactly constitutes “bodily injury.” Generally speaking, any damage to the physiological function of the body will be regarded as “bodily injury.”

Some notable examples include:

– subcutaneous bleeding,

– swelling,

– abrasions,

– rupturing of the hymen,

– tooth loss,

– contracting a sexually transmitted disease,

– inability to walk,

– sleep disturbance,

– loss of appetite,

– PTSD (Supreme Court Decision of January 26, 1999, 98Do3732).

With regard to the element of intent, an intent to commit pokhaeng will suffice. Specific intent to inflict “bodily injury” is not necessary (Supreme Court Decision of March 22, 1983, 83Do231).

Unlike pokhaeng, a person may be indicted for sanghae against the express objection of the victim. This essentially means that a person could face criminal punishment even when a settlement is reached between the parties.

Perpetrating this crime with consent of the victim negates criminality (e.g., performing surgery) unless the consent itself is deemed to violate so-called “social norms” (e.g., conspiring with another person to perpetrate insurance fraud or to avoid mandatory military service).

The crime becomes joong-sanghae (중상해) aka “Aggravated Bodily Injury” if “bodily injury” inflicted upon another person either: 1) endangers the person’s life, or 2) causes the person to become disabled or to develop an incurable disease. Some known examples of “incurable disease” include HIV/AIDS, psychosis, amnesia, and spinal disorders. In accordance with Article 258, the perpetrator will face more severe punishment.

In Korea, deliberately transmitting HIV/AIDS to another person constitutes joong-sanghae. But regardless of transmission, the person could still be punished under the AIDS Prevention Act (후천성면역결핍증예방법). Article 19 explicitly prohibits carriers of HIV/AIDS from deliberately engaging in acts known to transmit the disease to others. The maximum sentence for this crime is three years imprisonment. In 2009, a taxi driver in Jecheon was sentenced to eighteen months in prison after he engaged in unprotected sex with several different women on multiple occasions. He had already been diagnosed with HIV/AIDS much earlier. The six women whom he had intercourse with all tested negative for HIV/AIDS.

When either sanghae or joong-sanghae is perpetrated against an “ascendant” (존속), the punishment is more severe. An “ascendant” refers to a “lineal ascendant” of either spouse (if married). A “lineal ascendant” is someone who is in direct line of ascent such as one’s parents or grandparents. Like the crime of “Killing Ascendant” (존속살해), this reflects the Confucian influence (e.g., filial piety) on contemporary Korean law.

Jin’s Crime

Even in instances where no external injury is present, causing a person to pass out for longer than a “momentary period of time” constitutes sanghae (Supreme Court Decision of December 10, 1996, 96Do2529). Jin has committed the crime of sanghae under the Criminal Act. (Note: Pokhaeng merges into sanghae.) No consent was given.

Thanks for reading!

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