Commentary on the ‘Crime of Distortion of Law’ (법왜곡죄) under Article 123-2 of the Criminal Act
1. Legislative Background and History
A. Debate on the Need to Introduce the Crime of Distortion of Law (법왜곡죄)
The crime of distortion of law (beopwaegok-joe; German: Rechtsbeugung) is an offense that criminally punishes judicial officers, such as judges and prosecutors, who intentionally distort the law in applying it in criminal justice proceedings. The concept has long been discussed in academic circles.
Because prosecutors and judges are responsible for prosecuting and adjudicating suspects and defendants in criminal cases, they are required to maintain a high degree of objectivity, integrity, and incorruptibility. For this reason, countries with continental criminal justice systems have, in addition to rules of conduct and ethics for judges and prosecutors, provisions that criminally punish the distortion of law.
In South Korea, the legislation is said to establish a legal basis for punishing the distortion of law by judges and prosecutors, in order to prevent their arbitrary application of the law and to restore public trust in the judiciary. Discussion continued that the introduction of such a crime should be considered in order to prevent self-serving interpretations of the law and interpretations based on double standards.
B. Limitations of the Prior Legal Framework
Before the crime of distortion of law was introduced, there was a problem in that it was unclear whether the crime of abuse of authority (Criminal Act, Article 123) or similar offenses would be established when public officials performing criminal investigation or adjudication duties, such as police officers, prosecutors, and judges, distorted the law in applying it. This is because the crime of abuse of authority has been interpreted to be established only where the degree of illegality or impropriety reaches a level at which the conduct cannot be regarded as the proper performance of official duties (Constitutional Court Decision 2023Hun-Na2, May 30, 2024).
In addition, the Ministry of Justice pursued the creation of a crime of obstruction of justice in 2002, but the effort collapsed in the face of strong opposition from the Supreme Court, the Korean Bar Association, academia, and civic organizations.
C. Legislative Progress
After this long debate, Article 123-2 of the Criminal Act (Distortion of Law) was newly enacted on March 12, 2026, and is currently in force (Criminal Act, Article 123-2).
2. Analysis of the Elements of the Crime
A. Text of the Provision
Article 123-2 of the current Criminal Act provides as follows:
“Where a judge involved in the adjudication of a criminal case, a prosecutor who institutes or maintains a public prosecution, or a person performing duties relating to criminal investigation commits any of the following acts with respect to a criminal case under adjudication or investigation, with the purpose of unlawfully or unjustly conferring a benefit on another person or harming another person’s rights and interests, he or she shall be punished by imprisonment with labor for not more than 10 years and suspension of qualifications for not more than 10 years.” (Criminal Act, Article 123-2)
B. Offender (Special-Status Offense)
The offenders of this crime are limited to the following three categories.
| Offender | Description |
|---|---|
| Judge | A person involved in the adjudication of a criminal case |
| Prosecutor | A person who institutes or maintains a public prosecution |
| Investigator | A person performing duties relating to criminal investigation |
This is a genuine special-status offense, limited to incumbents performing the relevant duties. By the wording of the provision, judges involved in the adjudication of civil or administrative cases are not included as offenders.
C. Subjective Element: Offense Requiring a Specific Purpose
This crime is an offense requiring a specific purpose: the purpose of “unlawfully or unjustly conferring a benefit on another person or harming another person’s rights and interests.” Scholars are divided on the form of intent required for this purpose.
- View requiring direct intent: To safeguard judicial independence, dolus eventualis (conditional intent) is insufficient and direct intent is required.
- View including dolus eventualis: Given that dolus eventualis suffices for murder, distortion of law committed with any form of intent, including dolus eventualis, should be punishable.
The current provision does not expressly resolve this point, and it remains an area where interpretive doctrine and case law must develop.
D. Types of Conduct (Subparagraphs)
(1) Subparagraph 1: Intentional Distortion in the Application of Law
This covers cases in which a person “applies a statute while knowing that the requirements for its application are not met, or fails to apply a statute while knowing that it should be applied, thereby intentionally affecting the outcome of an adjudication or investigation” (Criminal Act, Article 123-2, Subparagraph 1).
The proviso, however, is of great importance. It expressly states that “a discretionary judgment made within the reasonable scope of statutory interpretation does not fall under this subparagraph” (Criminal Act, proviso to Article 123-2, Subparagraph 1). This is intended to protect judicial independence and prosecutorial discretion. Its purpose is that where the interpretation of a statute is not clear from its wording alone and several views are possible, an interpretation adopted by the official concerned after exercising due care and finding a reasonable basis for one view is not subject to punishment, even if it later turns out to be wrong (see Constitutional Court Decision 2023Hun-Na2, May 30, 2024).
(2) Subparagraph 2: Destruction, Fabrication, etc. of Evidence
This covers cases in which a person “destroys, conceals, fabricates, or alters evidence relating to the case, or knowingly uses fabricated or altered evidence in an adjudication or investigation” (Criminal Act, Article 123-2, Subparagraph 2).
(3) Subparagraph 3: Unlawful Collection of Evidence and Finding of Facts Without Evidence
This covers cases in which a person “unlawfully collects evidence through assault, intimidation, deception, or other means, or finds criminal facts established while knowing that no lawful evidence exists” (Criminal Act, Article 123-2, Subparagraph 3).
E. Statutory Penalty
Imprisonment with labor for not more than 10 years and suspension of qualifications for not more than 10 years are imposed cumulatively (Criminal Act, Article 123-2). This is heavier than the penalty for abuse of authority (imprisonment with labor for not more than 5 years, suspension of qualifications for not more than 10 years, or suspension from office), reflecting the legislature’s intent to punish the distortion of law by judicial officers severely.
3. Theoretical Issues
A. Scope of Distortion of Law
Distortion of law is considered to include not only the unjust application of law or abuse of discretion but also the erroneous determination of facts, and it may be committed not only through active conduct but also through omission.
B. Relationship With the Crime of Abuse of Authority
The crime of distortion of law, newly enacted as Article 123-2 of the Criminal Act, is distinct from the abuse of authority (Criminal Act, Article 123). The two are distinguished in that the crime of distortion of law seems to be limited to criminal cases and has judicial officers as its offenders, whereas abuse of authority applies to public officials generally and to all duties, civil and criminal. Where the two crimes overlap, questions of ideal concurrence or concurrence of statutes may arise, but no case law on this point has yet developed.
4. Anticipated Problems and Future Tasks
A. Concerns Over Infringement of Judicial Independence
The greatest problem with the crime of distortion of law is its conflict with judicial independence and prosecutorial discretion. Various views may exist on the interpretation of a statute, and determining whether a particular interpretation falls outside the “reasonable scope” itself requires a further legal judgment. Although the proviso (“a discretionary judgment made within the reasonable scope of statutory interpretation does not fall under this subparagraph”) mitigates this problem to some extent, there are concerns that its boundaries are unclear and that judges and prosecutors may find it difficult to make decisions according to their convictions (Criminal Act, proviso to Article 123-2, Subparagraph 1).
B. Difficulty of Proving Intent
The crime of distortion of law requires both the purpose element of “unlawfully or unjustly conferring a benefit on another person or harming another person’s rights and interests” and the knowledge element expressed as “while knowing.” Proving the inner state of mind of a judge or prosecutor is extremely difficult, and considerable difficulty is expected in bringing cases to prosecution and conviction, particularly while the scholarly debate over whether dolus eventualis suffices remains unresolved.
C. Expanded Scope Due to the Inclusion of Investigators
Because the provision includes “a person performing duties relating to criminal investigation” among its offenders, police officers and other investigators may also commit this crime. No standard has yet been established for drawing the line between discretionary judgment in the course of an investigation and intentional distortion of law.
D. Exclusion of Civil and Administrative Cases
Because the current crime covers only “a judge involved in the adjudication of a criminal case,” the distortion of law in civil and administrative cases is excluded from punishment. Debate is expected over whether it is equitable not to punish intentional distortion of law by judges in civil and administrative cases, where it can equally occur.
E. Need for the Development of Case Law
As an extremely new provision enacted on March 12, 2026, the crime of distortion of law has no Supreme Court case law whatsoever on the interpretation of its elements. In particular, case law is urgently needed on (1) the meaning of “a discretionary judgment made within the reasonable scope,” (2) the form of intent required (direct intent vs. dolus eventualis), (3) the relationship with abuse of authority in terms of concurrence of offenses, and (4) the relationship between the unlawful collection of evidence by investigators and the existing exclusionary rule.
5. Conclusion
The crime of distortion of law (Criminal Act, Article 123-2), enacted on March 12, 2026, after long academic debate and with reference to the legislation of Germany and other civil law countries, severely punishes judges, prosecutors, and investigators who intentionally distort the law in criminal justice proceedings, with imprisonment with labor for not more than 10 years and suspension of qualifications. While its legislative purpose of restoring public trust in the judiciary is legitimate, a number of challenges remain to be resolved, including concerns over judicial independence, the abuse of criminal complaints and accusations, and the difficulty of proving intent. The effectiveness of the provision will likely depend on the development of its elements through Supreme Court case law and the establishment of reasonable interpretive standards.
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