John lives alone on the 3rd floor of a small one-room (Korean) villa / apartment. Today is a weekday, but he’s called in sick. Before having brunch, John is on the computer commenting on new Facebook photos. Suddenly, John hears a rattling noise just outside his window. Out of nowhere, a total stranger forces open the window and peeps inside. (The stranger is standing on the A/C balcony outside.) John is startled/shocked. The stranger is, in fact, a burglar (who mistakenly thought no one would be home). The stranger/burglar is equally startled. John quickly heads toward the burglar, and they get into a scuffle. John is able to pry from the burglar’s hands a steel pipe he was carrying. Without hesitation, John then whacks the burglar over the head twice with that steel pipe. The burglar is knocked out and bleeding profusely. Are John’s actions justifiable under Korean law?
This was very similar to a real case. The court sentenced both John and the burglar to 1 year in prison; 2 years probation. (“Probation” means they did not face actual prison time.) The burglar was found guilty of “Intrusion upon Habitation,” while John was found guilty of “Inflicting Bodily Injury” (w/ a dangerous object). Self-defense was not recognized.
In Korea, self-defense (정당방위) is interpreted very narrowly and recognized only under particular circumstances. Let’s first see what the law actually says. Article 21 of the Criminal Act (형법) below. I have italicized and colored the most important parts.
Article 21 (Self-defense)
(1) An act which is performed in order to prevent impending and unjust infringement of one’s own or another person’s legal interest shall not be punishable if there are reasonable grounds for that act.
(2) When a preventive act has exceeded normal limits, the punishment may be mitigated or remitted according to the extenuating circumstances.
(3) In the case of the preceding paragraph, an act performed through fear, surprise, excitement, or confusion in the night or under other extraordinary circumstances shall not be punishable.
Translation by KLRI (Korea Legislation Research Institute)
<Article 21 Analyzed>
Subparagraph (1) deals with the essential elements of self-defense. The key in many (Korean) self-defense cases is whether there was “reasonable grounds.” “Reasonable grounds” normally means that the force used (to protect oneself) was “proportional” and “necessary.” In the above case, the court felt John’s use of force was not based on “reasonable grounds.” Once John had successfully pried the steel pipe from the burglar hand’s, John did not necessarily have/need to whack the burglar over the head with it (twice) in order to expel/repel him. In short, 1) Compared to what the burglar had done so far, what John did was excessive + 2) John did not necessarily need to whack the burglar over the head using that steel pipe; there were other less extreme measures available.
Another key issue in many self-defense cases is whether the attack was still “impending.” For instance, had John kept on pounding on the burglar (already knocked out), his defense would have failed even more because the burglar had already been subdued, and the use of force was no longer necessary. Self-defense never justifies the use of force as retaliation. For instance, once the fracas/scuffle is clearly over, it’s a clean slate.
In Korea, “defense of self,” “defense of others,” and “defense of property” are all specified in one place, Article 21. You might have picked up on that already. From the words “or another,” and “legal interest.” “Legal interest” includes many things, one of which is property. Basically, any interest protected by law.
Subparagraph (2) of Article 21 deals with instances where self-defense would only offer a partial defense. Namely, when the forced used to protect oneself was “excessive.” This could apply to John’s situation above. Meaning, there was nothing wrong in John’s decision to use force, but the manner in which he went about doing that was wrong. In such case, self-defense becomes “excessive self-defense” (과잉방위), and criminal punishment is only reduced (not exempted). When self-defense is not recognized, it’s normally because the use of force was excessive.
Subparagraph (3) is interesting. It says even “excessive self-defense” can offer a full defense under certain circumstances. It’s an exception to subparagraph (2). So basically, a person can be exempted from criminal punishment if “excessive self-defense” was used/employed at nighttime while he/she was under the stress of a startling situation. In law school, I thought this made little sense. I remember half-jokingly telling the professor that I thought subparagraph (3) was outdated because these days (in Korea) some places are brighter/clearer at night. Especially in Gangnam. The rationale behind subparagraph (3) is that, at night, people’s perceptions/judgements can more easily become blurred, and we should cut people some slack for that. There is some validity to this. My point, however, was that the “time of day” should not be a factor at all in deciding the validity of self-defense. It still seems somewhat arbitrary to me.
DID YOU KNOW?
In September 2013, it was reported on YTN that a rapist was badly injured while attempting to rape a woman in her apartment. The would-be rapist surreptitiously followed an unsuspecting woman into her apartment where he thought she’d be alone. But once he tried to start raping the woman, the woman’s brother happened to return home! (Note: The sibling were living together.) The woman’s brother beat up the rapist pretty bad. You can see from the surveillance camera footage above, the rapist was okay going in, but came out on a wheelchair and with bandage wrapped around his head. In this case, I believe, self-defense was recognized. The fact that the incident happened around midnight, and the brother had used only this fists to only subdue the rapist were probably key.
DID YOU KNOW?
Some districts in Seoul are currently running something called “Safe Return Home for Women Service” (여성 안심귀가 서비스). If you are a woman returning home late at night (i.e., 10 p.m. – 1 a.m.), you can call 120 (about 30 minutes before you arrive at a subway station or bus stop) and ask to be escorted by a “scout” to your home. The scout will show up, and you may check his/her credentials. Then, you can be escorted to your home free of charge. If you live in Seoul, you might want to make use this service. Also, many 24-hour convenience stores in Seoul are now designated “Temporary Safe Haven for Women” (여성 안심 지킴이집). If you see the yellow/black sticker on the entrance of a convenience store, you can take refuge there if you ever feel someone is stalking/following you or is up to no good. Those convenience stores have signed an MOU with the police and thus have a hotline system. They can easily and quickly call the police (on your behalf).
The Kim Bo-eun / Kim Jin-gwan Case (1992)
The “Kim Bo-eun / Kim Jin-gwan Case” (1992) is arguably the most important case regarding self-defense in Korea. In law school, I remember we discussed at length this particular case. Although I was in Korea in 1992, I didn’t remember this case clearly. I learned about it in law school.
The case was about a 21-year-old woman (by the name of Kim Bo-eun) who had been habitually raped by her stepfather for over 12 years. In January 1992, Kim Bo-eun could take it no longer, and she had her boyfriend (named Kim Jin-gwan) stab the stepfather (in the heart) while he was asleep. (They both had previously tried several times to plead with the stepfather, only to receive threats.) Both Kim Bo-eun and Kim Jin-gwan were indicted for (premeditated) murder. The question was whether or not what they had done could, in fact, be recognized as self-defense. As you can imagine, the case went all the way up to the Supreme Court of Korea. Ultimately, self-defense was not recognized, and they were both found guilty of murder. In December 1992, they were each (finally) sentenced to:
1. Kim Bo-eun: 3 years in prison. (Note: She received probation.)
2. Kim Jin-gwan: 5 years in prison. (Note: He actually ended up serving about half of the sentence.)
In the Court’s view, the infringement was indeed “impending,” but the method used (i.e., stabbing to death) was seen as excessive. It, therefore, lacked “reasonable grounds.” The Court felt there were less extreme methods available (for the defendants) to extricate themselves from the situation. Bottom line: Was it necessary to kill the stepfather in such a manner?
Although found guilty, Kim Bo-eun did receive probation, meaning (at least) she was able to avoid serving actual prison time. It was the first time in Korea where a defendant convicted of murder received probation. Interestingly, the Supreme Court Justice presiding the case was none other than Mr. Lee Hoi-chang (who would later become a presidential candidate). In 2002, he lost to Mr. Roh Moo-hyun (48.8% to 46.6%).
At the time, this case caused a big, nationwide uproar here in Korea. People petitioned to have the defendants exonerated. College students formed support groups and even rallied outside. I wonder if the verdict would have been different had they had jury trial at the time. FYI, jury trial (for criminal cases) was introduced here in 2008. In Korea, there is a saying, “It goes against the legal sentiments shared by the people.” (“국민의 법감정에 반한다.”) I believe this was one such case. Many were saddened/outraged by the verdict. Personally, I believe the Court did what it could under the circumstances at the time. It’s extremely difficult (even now) to recognize self-defense in murder cases. Almost impossible if premeditated.
The 2011 Police Guidelines on Self-Defense
In 2011, the Korean police set forth new guidelines on how to determine and investigate self-defense cases. 8 factors are taken into consideration when determining if self-defense could be recognized (during investigations). They are as follows:
1. Must have been to defend.
2. Cannot have provoked.
3. Cannot have been the first aggressor.
4. Cannot have used more force/violence than the aggressor.
5. Cannot have used a deadly weapon or dangerous object.
6. Cannot have used force/violence after the aggressor had stopped the attack.
7. Cannot have inflicted more damage to the aggressor.
8. Cannot have inflicted (to the aggressor) bodily injury requiring more than 3 weeks of medical treatment.
What do you think? Even though these are all taken into account as a whole, the requirements seem extremely difficult to fulfill. This is about common sense, not law.
My main concerns are:
1) For a person who is suddenly (out of nowhere) subject to an abrupt attack, it’s hard for him/her to logically tiptoe these lines exactly. To me, requiring exact proportionality seems harsh and unreasonable. Some leeway should be granted so that the defender can confidently protect him/herself w/o worrying about being charged with a crime.
2) I’m afraid a potential aggressor will see these guidelines and think it’s actually worth it to attack a person. The message seems more to be, “Even if you randomly attack a person, you cannot not / will not be hurt that bad.” I wonder if these guidelines have any deterrent effect.
3) I’m afraid these restrictive guidelines might give the wrong impression that it’s better not to interfere or help people in distress. Ideally, third parties (wanting to help) should feel/know that their intervening will not come back to bite them in the behind. These guidelines are hardly reassuring.
Speaking of the police, do you know if you can use/employ self-defense against a police officer in the line of duty?
Yes, you can. If a police officer forces you to do things w/o legal ground, you can use/employ reasonable force to free yourself. Of course, it’s a different story if the police officer had the right to do what he/she did. Let me give you an example.
One ground a police officer may arrest a random passerby w/o a warrant is if there is clear evidence the passerby is either in the midst of committing or has just committed a crime. If a police officer tries to arrest a random passerby for no apparent reason, and the passerby inflicts some bodily injury (on the officer) while resisting arrest, that would qualify as self-defense (Supreme Court Decision of May 10, 2002, 2001Do300). Now, if there was some clear evidence (e.g., marijuana sticking out of the passerby’s pockets), any such resistance would not qualify as self-defense. The passerby, in such an instance, will face charges of not only possession of marijuana (i.e., in the midst of committing a crime), but also harming the officer, and possibly obstruction of justice too. So, it’s critical whether the police officer had the right (initially) to do what he/she did. That is where a case will turn. If you are ever confronted with a similar situation, you should by all means ask the officer what’s up.
DID YOU KNOW?
In Korea, possession of firearms is also illegal. Article 10 of the Control of Firearms, Swords, Explosives, etc. Act (총포ㆍ도검ㆍ화약류 등 단속법) generally forbids civilians from possession. This means a person caught possessing a firearm can normally be arrested (w/o a warrant). Interestingly, most Korean men get to fire a gun (at least once) because of mandatory military service. Above used to be my assigned sidearm in the military.
Stealing Kiss & Biting (off) Tongue
Biting off someone’s tongue (who tries to forcibly kiss you) is recognized as self-defense in Korea. It was first recognized as such in 1988 by an appellate court. Up until then, such a response was seen as being excessive (and thus not self-defense). The 1988 incident/case was even made into a Korean movie titled, Only Because You Are a Woman (1990). Poster above. As you can see, it came out around Chuseok in 1990! FYI, a case in 2012 once again recognized such a response as self-defense.
But, there’s always a fine print. Such actions were most likely recognized as self-defense because the woman had no other recourse (e.g., at night w/ no one around…). So, if someone tries to forcibly kiss you in broad daylight (downtown), biting off his tongue would probably not be okay. Because you could first shout and ask for help. In actuality, there isn’t one definitive formula in determining self-defense. Each case must be looked at in its own context. Btw, kicking a man’s private parts for forcibly holding your hand is not currently recognized as self-defense. Kicking his private parts as a response to forcible kissing (at night), in contrast, would probably constitute self-defense. Below, self-defense gadgets available here in Korea.
In Korea, self-defense is recognized only under very particular circumstances. What is deemed “reasonable” in one country may not be deemed so “reasonable” here in Korea.
It’s hard to generalize, but I have come up with a few rules:
1) If you can walk away, walk away. If you can ask for help, ask for help. Please try to do these things first (if possible). Also, nighttime self-defense is more likely to be recognized.
2) The use of force is allowed only when it is necessary to subdue the attacker. Once the situation is under control or you are out of harm’s way, self-defense will no longer be available.
3) If possible, try not to rely on dangerous objects or weapons. These will work against you (especially if the attacker had none). Punches/kicks are preferable.
4) Remember that if the attacker (for whatever reason) ends up more hurt/injured than you, this might work against you too. Results do matter.
In Korea, I can imagine a person ending up a criminal for having used what he/she believed was “reasonable” force. It’s possible. Okay, two more/final examples.
1) Even if someone curses you out, you are the initial/first aggressor if you hit that person first. Initial/first aggressors generally are not afforded self-defense. Verbal provocation cannot be responded with force. Even if you were taunted.
2) If you are walking with your girlfriend, and a crazy old man (out of nowhere) grabs her by the hair, you can use your fists to punch him only until he lets go and stops trying. Pounding on a person who is already subdued would not be self-defense. And, try to stay away from strangers who appear to be off their rocker.
More information below.
I recommend this post: https://klawguru.com/2015/12/10/self-defense-law-update-the-gongneung-dong-murder-case/
I also recommend this post: https://klawguru.com/2016/02/13/self-defense-law-update-2-the-braindead-burglar-case/