Korean Law Demystified!

Adultery No Longer a Crime (in Korea)!

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As a result of this momentous ruling, Article 241 is repealed and adultery is no longer a crime in Korea.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 Below is Article 241 that was repealed today.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)

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 For a law to be found “unconstitutional” (and be repealed), a minimum of 6 votes (out of 9) are required.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.

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, custody battles…).

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 damages under tort law (i.e., psychological pain and suffering). Against both his/her spouse and the 3rd party involved.

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:

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).

Thanks for reading!

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