The Criminal Offense of ‘Insult’ in South Korea: Recent Case Trends
1. Legal Basis and Basic Structure
Article 311 of the Criminal Act provides that “a person who publicly insults another is punished by imprisonment with or without labor for up to 1 year, or a fine of up to KRW 2 million” (Criminal Act, Article 311). The offense of insult is an offense subject to complaint, so prosecution can be brought only where there is a complaint from the victim.
2. The Protected Legal Interest and the Meaning of “Insult”
A. The protected legal interest
The protected legal interest of the offense of insult is external honor—meaning the social evaluation of a person’s personal worth. The victim’s individual subjective feeling of honor does not fall within the protected legal interest (Supreme Court, Aug. 31, 2022, 2019do7370).
B. The meaning of “insult”
Insult means expressing an abstract judgment or a contemptuous feeling capable of infringing a person’s external honor, without alleging a fact. In this respect it is distinguished from the offense of defamation, which requires the allegation of a fact as an element (Supreme Court, May 9, 2024, 2024do2879).
3. The Standard for Judging Whether an Insult Exists — Recent Case Trends
A. An objective, strict standard of judgment (the core principle)
The Supreme Court has held that whether a given expression constitutes an insult is to be judged not by whether it is an expression capable of infringing the other party’s individual subjective feelings or feeling of honor, but strictly, by reference to various objective circumstances—the relationship between the parties, the course leading to the expression, the manner of expression, the situation at the time, and the concrete content and context of the expression—as to whether it is an expression capable of infringing the other party’s external honor (Supreme Court, Jan. 29, 2026, 2023do8410; Supreme Court, Oct. 8, 2024, 2022do15971; Supreme Court, Aug. 31, 2022, 2019do7370).
B. Cases where the elements of the offense are not satisfied (negative in principle)
In the following cases, the elements of the offense of insult are in principle not satisfied.
| Type | Explanation |
|---|---|
| Rudeness / breach of courtesy level | An expression of a degree that is rude and discourteous, capable of displeasing the other party |
| A minor negative expression | Where a minor-level abstract expression or curse is used while showing a negative or critical opinion or feeling about the other party |
Such expressions, absent special circumstances, cannot be regarded as expressions capable of infringing external honor, and so do not satisfy the elements of the offense of insult (Supreme Court, Oct. 8, 2024, 2022do15971; Supreme Court, Aug. 31, 2022, 2019do7370).
By contrast, a curse that is of concern to seriously infringe an individual’s personality right, or that is so revolting as to give a sense of humiliation to the point of tearing down the other party’s personality, does constitute an insult (Supreme Court, Aug. 31, 2022, 2019do7370).
C. Analysis of recent judgments
1) Supreme Court, Jan. 29, 2026, 2023do8410 (the most recent)
The most recent Supreme Court judgment reaffirmed that the protected legal interest of the offense of insult is external honor, and reaffirmed the principle that whether an insult exists must be judged strictly by reference to various objective circumstances—the relationship between the parties, the course leading to the expression, the manner of expression, the situation at the time, and the concrete content and context of the expression. It also ruled together on the principle concerning the complaint period for an offense subject to complaint (Supreme Court, Jan. 29, 2026, 2023do8410).
2) Supreme Court, Oct. 8, 2024, 2022do15971
Emphasizing that, in interpreting and applying the elements of the offense of insult, an individual’s personality right and freedom of expression must be considered together, the court held that where the expression is of a degree that is rude and discourteous, capable of displeasing the other party, or where a minor-level abstract expression or curse is used, it in principle does not satisfy the elements of the offense of insult (Supreme Court, Oct. 8, 2024, 2022do15971).
3) Supreme Court, May 9, 2024, 2024do2879 (reversed and remanded)
In a case in which the defendant posted on Instagram the comment “Wow, with a character like that you still have friends—saw it well, goodbye,” the Supreme Court judged that, although the comment was a rude expression capable of displeasing the victim by showing a negative opinion or feeling about the victim’s character, it was difficult to regard it as insulting language capable of objectively lowering the social evaluation of the victim’s personal worth, and reversed and remanded the judgment below (Supreme Court, May 9, 2024, 2024do2879).
4) Supreme Court, June 13, 2024, 2024do5005 (appeal dismissed)
Reaffirming the principle that, if a given expression is not capable of lowering the social evaluation of the other party’s personal worth—if it is merely displayed in a somewhat rude manner, or is no more than a light-level abstract expression containing a negative or critical opinion or feeling—it does not satisfy the elements of the offense of insult, the court held that judging whether such grounds apply must take into account all the circumstances: the relationship with the other party, the space in which the expression was made and the surrounding context within the overall context of the textual expression, and whether a harmonious protection of the other party’s honor as a personality right and the defendant’s freedom of expression is needed (Supreme Court, June 13, 2024, 2024do5005).
4. Exclusion of Unlawfulness — Justifiable Act
Even where a judgment or opinion containing an insulting expression is included, where it can be regarded as an act not contrary to the rules of social order in light of the sound social conventions of the times, it constitutes a justifiable act under Article 20 of the Criminal Act and unlawfulness is excluded. This makes it possible to appropriately harmonize the interests and values obtained through freedom of expression with the interests and values achieved through the protection of honor (Supreme Court, Aug. 19, 2021, 2020do14576).
5. The Publicity Requirement
Publicity in the offense of insult means a state in which an unspecified or large number of persons can perceive it; it is enough that, at the time of the expression, a third party is in a state capable of perceiving it, and it does not necessarily require that a third party actually perceive it (Busan District Court, Nov. 18, 2022, 2021no4118).
6. The Requirement of Identifying the Victim
Where the victim is indicated in an online space using an internet ID, nickname, alias, or the like, the offense of insult may be established if the victim can be identified by that alone, in light of the surrounding circumstances. By contrast, where, even taking the other surrounding circumstances together, it is difficult to discern who the person with that ID is, and there is otherwise no material from which to surmise it, the victim cannot be regarded as identified and the offense of insult is not established (Suwon District Court, Nov. 29, 2024, 2023no5627).
7. Constitutionality — Constitutional Court Decisions
The Constitutional Court has repeatedly decided that the offense of insult under Article 311 of the Criminal Act does not violate the principle of clarity or the principle against excessive restriction, and so does not infringe freedom of expression. As grounds, it has cited: (1) that criminal punishment is possible only where there is a complaint from the victim; (2) that the upper limit of the statutory penalty is comparatively low; and (3) that the court can pursue an appropriate harmony between freedom of expression and the protection of honor by applying the justifiable-act provision appropriately (Constitutional Court, Dec. 23, 2020, 2017heonba456; Constitutional Court, June 27, 2013, 2012heonba37).
That said, critical discussion in academia about the legitimacy of the offense of insult continues—at the time of the 2013 Constitutional Court decision upholding it, for instance, 3 votes of unconstitutionality were cast.
8. Insult Using Images
With the recent development of image-editing and compositing technology, the possibility of insult offenses using composite photographs and the like is rising. Even with an insult using only visual means, the harm the victim suffers from the act, and the degree of punishability of the offense, are no different compared with the case of using verbal means. That said, judgments diverge—a judgment that covering a victim’s face with a dog’s face cannot be punished as insult, and a judgment that compositing a toad onto a victim’s face does establish insult—so a case-by-case judgment is needed.
In summary, the consistent flow of recent Supreme Court precedent is developing in the direction of interpreting the elements of the offense of insult strictly, so as not to excessively chill freedom of expression. The mainstream position of current precedent is that a merely rude or displeasing expression does not satisfy the elements of the offense of insult, and that the offense is established only where it reaches a revolting curse to the point of tearing down the other party’s personality, or a serious infringement of the personality right.
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