Analysis of South Koreas Adultery Law

Abstract

The paper will discuss and analyze the fact that despite Korea’s increased modernization and rise in judicial review, the country’s Constitutional Court has chosen to uphold the adultery law. Korean society is greatly influenced by the Confucian principles, which may explain the reason for the court’s decision and the continued existence of the adultery law. However, while Confucianism has always played a significant role in Korean society and law, it seems unlikely that it is entirely responsible for why adultery is still criminalized in Korea. This puzzle is further highlighted when we consider other countries surrounding Korea such as China and Japan, as well as the United States which has had considerable influence on the development of Korea’s political and legal framework.

Introduction

The Korean Penal Code has not been amended for over 50 years that it has been in existence. Nonetheless, numerous special Criminal Acts that carry heavy punishment have been enacted [1] . Democratization has seen the Korean criminal law reviewed against “nullum crimen, nulla poena sine lege” [2] . There has been raging debate concerning whether or not to liberalize or de-criminalize the Korean Criminal law. Conversely, there still exists a trend towards “over-criminalization”, whereby heavy punishment is often favored primarily for the purpose of social control. Thus the essence of criminal law is “prima ratio,” not “ultima ratio,” due to the need for a social control [3] . In 2008, Korea’s Constitutional Court nearly voted for the unconstitutionality of the anti-adultery law. It’s perhaps appalling to learn that adultery still remains a criminal offense in certain non-Muslim countries including South Korea [4] . Today, the status of adultery statute in South Korea reveals the effects of a socially and morally conscious statute that continue to be imposed on Korean society. The Korean Constitutional Court’s opinion in various Adultery Cases provides an insight into the state of an ethically cognizant statute, and the modern state of the country’s Constitutional Court’s jurisprudence.

South Korea is largely viewed as a success story of economic and democratic transformation which has been witnessed in the past three decades. The country realized socioeconomic modernization in the 1960s and 1980s which eventually led to democratic transformation that begun in late 1980s [5] . The fundamentals that led to these socioeconomic and democratic changes were laid by the authoritarian regimes of the 1960s and 1980s, though democratic transformation begun from the mid 1980s [6] .During the review period, South Korea has realized significant progress in its transformation from an authoritarian state to a more liberal democracy and market-based economy which guarantees its citizenry of freedom of choice in both political and economic matters. The country has witnessed a 13 year period of democratic rule and a rapidly developing economy. During the period ranging between 2001 and 2005, South Korea implemented various reform measures which deepened political and economic transformations.

Despite this socioeconomic and democratic transformation witnessed in the past three decades, South Korea’s Penal Code still maintains provisions that were inherited from the Japanese imperial regime. These deficits in the country’s Judicial System can be attributed to both cultural and historical issues that underlie Korean society. Despite its social economic success story, South Korea appears to be dragging behind in implementing judicial reforms as compared to other Asian nations such as Japan and China. For instance, the country still retains the anti-adultery provision in its Penal Code despite mounting pressure from the public and civil society calling for its repeal. The paper will discuss the anti-adultery law in Korea and will explore reasons as to why despite remarkable socioeconomic development and high levels of modernization, South Korea still retains this law.

Though it’s undeniable that South Korea has realized considerable social reforms throughout the review period, a section of the Korean public, civil society and legal experts are of the contrary opinion. They argue that social freedom cannot be realized while the state still maintains the anti-adultery law which the government uses to violate the constitutional rights of its citizens. The mounting pressure from various stakeholders advocating for the repeal of this provision is a clear indicator that the country needs to urgently implement judicial reforms. For instance, in the past two decades the constitutionality of the anti-adultery law has been severally challenged before the country’s Constitutional Court. Recently, the Constitutionality of this law was once again put to test in a case involving a reputed Actress, Ok So-ri married to a renowned entertainer, Park Chul. Park sued Ok on charges of Adultery and subsequently filed a divorce petition. A spouse found guilty of committing adultery often defined as a sexual affair with another man or woman who’s not the spouse, violates section 241 of the Korean Criminal law [7] . The law provides that such a person should serve a maximum sentence not exceeding 2 years imprisonment [8] . However, a section of the Korean Public continue to petition against the constitutionality of Section 241 of the criminal law arguing that the Government lacks the constitutional mandate to arbitrate on an individual’s sexual affair [9] . The primary rationale behind this school of thought is that the crime of committing adultery is analogous to restricting a party’s sexual freedom. Many scholars have thus argued that this crime denies an individual his or her constitutional basic rights including human rights, the right to privacy and an individual’s right to pursue gratification. Thus according to the Constitutional Court ruling on September 10, 1990:

The Court acknowledged that Article 241 of the Criminal Act punishing adultery by imprisonment of up to two years did not restrict the people’s right to sexual self-determination derivable from Article 10 of the Constitution. The Court however ruled that such restriction was justified by the public’s interest in sound sexual ethics and maintenance of the system of marriage and upheld the provision as not being an excessive restriction on the individual’s sexual freedom (89 Hun-ma 82, Sept, 10, 1990) [10] .

A different school of thought that supports the constitutionality of the statute is that by criminalizing adultery, sexual morality and family values and system are preserved and protected. In various instances where adultery cases were referred to the Constitutional Court for constitutional adjudication and interpretation, the Korean Constitutional Court often ruled in favor of the adultery law. The Court argued that the anti-adultery statute is significantly fundamental in preserving and protecting the family system from the negative influence of the society, emanating from the practice of adultery [11] . Therefore in its ruling, the Constitutional Court upheld that adultery law was constitutional. Various research studies have indicated that the adultery law in Korea has been grossly abused by spouses whose main intent is vengeance against their fellow spouse whom they suspect to have committed adultery. Thus it can be argued that criminal law shouldn’t be used as a tool for revenge by spouses since the object of criminal law should be to punish individuals who violate the social or societal norms. On the contrary, the Korean adultery law is intended to punish the offenders who violate marital faithfulness. Though notwithstanding its intended purpose, the adultery law has been abused by marital parties.

3.0 Current State of the Adultery Statute – Park v. Ok Case.

In an adultery case involving Park and his wife Ok, Park filed a divorce based on his wife’s extra-marital affair. In 2007, Park sued Ok and the man she had affair with “Jung” in a Constitutional Court. However while her criminal trial was still ongoing, Ok moved to have the district court certify the adultery law to the Constitutional Court for constitutional interpretation. She argued that the adultery law was unconstitutional first because its application constituted an infringement of her fundamental human right to sexual privacy. Secondly, she argued that the manner in which prosecution was conducted provided loopholes that parties could exploit for purposes of private revenge. The Constitutional Court turned the couple’s private case into a national forum for reviewing the constitutionality of the law. Thus in 2008, the Constitutional Court barely ruled in favor of the constitutionality of the adultery law. Due to opposing views among Constitutional Court judges, Ok’s prosecution was postponed to provide time for the court to seek a unanimous decision. Upon determination, the court sentenced Ok to eight month suspended imprisonment while Jung received a six month suspended sentence.

Though many people are still puzzled by the criminalization of adultery in Korea, recent opinion polls indicate that Koreans are still largely divided regarding the constitutionality of the statute [12] . A majority of the citizens hold the view that their country is the only non-Muslim country that continues to criminalize adultery. However, a study conducted by Kim Sung Chum suggests that its only Korea, Greece, Taiwan, Switzerland and Austria are the only remaining non-Islamic states that continue to criminalize adultery [13] .

4.0 Origins of the Adultery law in South Korea

The adultery laws of Korea were coined from the Imperial Japanese

Laws that were imposed during the Japanese Colonial era. Specifically, the anti-adultery legislation was derived from Section 183 of Japan’s Penal Code that was passed

soon after the Meiji Restoration. However, section 183 criminalized adultery and made it an offense only for married women and their paramours [14] .

During the American colonization, Douglas MacArthur, the Supreme Commander of the Allied Powers directed that the legislation be applied to men and women alike or be abolished. As a consequence of this directive, the Japanese Imperial government voted to abolish the adultery law in 1947. Following independence in 1945, Korea originally adopted and incorporated Japan’s entire Penal Code into its constitution. Nonetheless, in 1953 Korea dropped Japan’s Penal Code and instead replaced it with its own anti-adultery law. Unlike Japan’s adultery statute, Korea’s new statute criminalized adultery for both men and women. The law has thus been operational ever since, despite having been challenged in the Constitutional Court four times, including Ok’s latest appeal [15] . Every time the statute was challenged in a Constitutional Court (1990, 1993, 2001, and 2008) the court ruled in favor of the constitutionality of the statute. Nevertheless, in the last two decades Korea has reported an upsurge in marital and sex-relations problems.

During the twentieth century, Korean women were detested by society and families for being adulterous to their husbands. Though from a legal perspective, men were also prohibited from engaging in adulterous activities after 1953, essentially, the society allowed men to practice adultery.

South Korea undertook a successful democratization in 1987, leading to a largely revised Constitution and a new Constitutional Court. Stemming from public resistance against authoritarian rule and the struggle for democratization, a new constitution was realized and a Constitutional Court created. Drawing from the experience that the country’s Supreme Court had failed in its duty to protect the citizen’s basic rights in judgments related to the constitutionality of the law, the court was created to deal with impeachment, constitutionality of laws and constitutional complaints among other constitutional disputes. Thus the new court was mandated to make judgments on constitutional complaints. The Korean constitution institutionalized the Constitutional Court effective from September 1, 1988. The court became officially operational on September 15, 1988 when a panel of nine judges was appointed. In the preceding two decades, the government power changed from the opposition and back, swinging among various political parties. Despite this, the performance of the South Korean Constitutional Court has perhaps been most credible. In decisions challenging the constitutionality of statutes and government actions, about a third of the rulings made denounced the constitutionality of the statutes. [16]

5.0 Rationale for Criminalization of Adultery & its effects

The adultery statute that has been operational in Korea since its adoption in1953 requires charges to be filed alongside a divorce petition. Additionally, the complainant is required to file the complaint within a period of six months of acquiring the identity of his or her spouse’s lover. Besides, the spurned spouse is further restricted by a three-year statute of limitations. In 2008, the Korean adultery law came closer than ever before to being declared unconstitutional in Ok’s appeal case. The unconstitutional ruling on the defunct law was almost realized when Ok So-ri appealed to the Constitutional Court challenging the constitutionality of the adultery statute. In the ruling, four out of the nine judges who presided over the case declared outright that the law was unconstitutional. One Constitutional Court judge argued that adultery law was non-conforming and inconsistent with the Korean constitution whereas four ruled that it was constitutional [17] . Despite the ruling by five Korean justices in favor of repeal of the law, the provisions of the Constitutional Court regarding law repeal procedure require that any declaration challenging the constitutionality of a statute must be presided over and decided by at least a six-to-three margin. In Ok’s appeal case, four judges voted that adultery law was consistent with the constitution, arguing that its primary objective is to protect marital relationships. The statute’s objective according to the four judges’ ruling was constitutionally legitimate as a national legislation. The four further argued that protecting the rightful existence of marriage as a social institution was a legitimate objective. They further stated that marriage protection justified burdening the citizen’s constitutionally protected right to privacy.

One the contrary, one judge ruled that adultery statute was not in conformance with the constitution. Justice Kim argued that the unconstitutionality of the law stemmed from the fact that the law “punishes an act that ought to be merely criticized ethically” [18] . In his ruling, he further stated that punishing adultery as a crime was constitutional but there was no constitutional backing for punishing the act of adultery. Drawing from the previous Constitutional Court rulings, it’s apparent that the Korean Constitutional Court had come of age in reforming the adultery law than the average Korean citizen. This was evident from the 2008 national referendum that was conducted around the time of Ok’s Constitutional Court appeal. The referendum results suggested that seventy percent of the country’s citizens were in favor of the adultery statute in its current form [19] .

In contrast with most jurisdictions such as the United States where adultery still remains a criminal offense, South Korea has enforced adultery law since 1953. According to statistics released by the Constitutional Court, approximately 1200 people have been indicted under the adultery statute since the year 2000 [20] . The Korean anti-adultery law is stipulated in Article 24 of the Korean Criminal Code. It is also evident that the social norms within Korean society are changing rapidly. The rising number of commercial sex workers and divorce petitions filed in the country’s lower courts is a clear indication of this changing trend among Koreans.

The Constitutional Court of Korea has in the past ruled in favor of the anti-adultery provision on the basis that it was constitutional for a three time record. In a number of appeal cases, various individuals accused of adultery challenged the Constitutional Court regarding the constitutionality of the law. Pursuant to Article 68(2) of the Constitutional Court act, these applications for adjudication on statute constitutionality were dismissed. In these cases, the Constitutional Court upheld that the anti-adultery law was constitutional. The court argued that anti-adultery law protects marital engagements and thereby preserving social order. Thus the anti-adultery statute plays a significant role in maintaining and preserving the family as a respectable social institution. Though many argue that the statute wields excessive power, the discussion on its constitutionality is subject to freedom of legislation.

According to the Korean Legal experts, the anti-adultery law negatively affects social order and continues to violate people’s constitutional right to privacy. Besides, many legal experts argue that the violation of the private interest as presented by adultery cases unconstitutionally placed restrictions on the citizen’s right to sexual privacy. Therefore the statute constituted a constitutional violation. Nonetheless, the objective of this law is determined by the public interest which currently favors its repeal from the criminal Penal Code. On the contrary, the state argues that anti-adultery law does not excessively infringe on the citizens rights to sexual freedom and privacy. Thus according to the state, the imprisonment action is stipulated as statutory sentence and not merely as a heavy and excessive penalty [21] .Yet through a separate opinion of constitutionality, the act of punishing adultery did not constitute a constitutional violation. Instead, the court wields excessive power from the statute and as such has the power to censure citizen’s social behavior and impose unjust punishment. Members of the legislative assembly should therefore heed to the ever increasing voices of dissent and amend this law through constitutional amendment.

The unconstitutionality of anti-adultery law contravenes the citizen’s constitutional rights that prohibit excessive control of individual’s rights to sexual independence and privacy. In the recent years, adultery cases that are punishable by law continue to attract public interest and heated legal debates. The anti-adultery law proponents argue that criminal charges against immoral acts are not comprehensive since the criminal punishment of adultery is not instrumental in protecting monogamy. Yet, the previously intended purpose of promoting marital faithfulness among married couples and the protection of women rights is not effectively controlled by the statute. Moreover, there is no balance as regards the public interest in the law. Hence, the anti-adultery law restricts people’s basic rights that include their right to sexual autonomy.

The unconstitutionality of the statute imposes a penalty on merely trivial matters which would be better handled by civil courts. Criminalizing adultery constitutes to the state exercising excessive power on private social matters. Many in the legal fraternity believe that the state is extending beyond its legal mandate of constitutional governance. The anti-adultery law contains a provision which states that criminal punishment on adultery does not constitute a constitutional violation. Instead, imprisonment of adulterers merely serves as a statutory punishment which precludes the perception of individuality and particularity which violates the proportionality principle regarding responsibilities and penalties [22] . After the Constitutional Court ruling that required adjudication of the constitutionality of anti-adultery statute, it became evidently clear that the Korean public were in support of the repeal. While making the ruling, five Constitutional Court judges ruled that the statute was unconstitutional and violated individual’s right to privacy. However, it’s expected that the changing social norms necessitated by the continued influence of western culture and values, coupled with constitutional transformation in other jurisdictions will in the longer term affect the Constitutional Court decisions.

The legal fraternity and the civil society believe that the controversial debate on the statute’s constitutionality will continue to attract public interest as more high profile cases come into the public limelight. The recent attempt to declare the anti-adultery law unconstitutional failed with a vote of five to nine in the Constitutional Court. However, the law requires a two thirds majority (six judges) to declare the provision as unconstitutional. Eventually, the anti-adultery law remained constitutional despite concerted effort by various stakeholders and interest groups pushing for its repeal. It is expected that the need to repeal the law will be necessitated by advancement in civilization of Korean society [23] .

The Korean Law draws enormous influence from the constitution enacted during the Japanese imperial rule. Since the imperial colonial rule of the Japanese the Korean law still requires fundamental constitutional amendment [24] . During the American colonial rule, the American government unsuccessfully attempted to eliminate the Japanese influence from the Korean criminal law. Korea experienced authoritarian rule long after declaration of independence from the Japanese. The authoritarian rule was characterized by suppression of freedom of expression and criminalization various social injustices. The Korean political leadership was mainly influence by communist ideologies and Confucianism. The National Security Act and the Anti Communist Act contained provisions that criminalized certain social and civil injustices.

Despite notable institutional reforms and democratization, several institutional laws and procedures require amendment. If the Korean Government expects to be autonomous in its democratic governance, it’s about time that it withdrew foreign influence from its laws [25] . Subsequent withdrawal from foreign influence will ensure realization of a sound legal framework that will correspond with the current global legal trends. This constitutional transformation will also guarantee citizen’s of a justice system that is free from freedom infringement. The Confucian elements continue to be deeply rooted in South Korea. Despite the existence of Adultery law, Seoul the capital city of S. Korea is beaming with massage parlors. According to the Korean institute of criminology, sex business records over 4% of the country’s GDP [26] . Based on these findings, it has been revealed that one in every five South Korean men between the ages of 20 and 64 seek for commercial sex at least four times per month. As a result, the Korean government has been conducting regular crack downs on the Seoul Sex shops with a view of reversing this trend. Consequently, the city revelers have been hard hit to an extent that the prostitutes hold protests and demonstration against the government. Despite government crackdowns, commercial sex continues to flourish in Seoul with many Korean men seeking the services of prostitutes.

Interestingly, the Constitutional Court has continued to rule in favor of the anti-adultery law. However, recent trends in the Constitutional Court rulings suggest the possibility of legalizing sexual infidelity [27] . Nevertheless, division in public debate over the matter is a source of worry for legal experts. The proponents of the statute especially women groups argue that it provides protection to wives who are usually victimized in divorce cases. On the contrary, research indicates that South Korean men commit more adultery as compared to women. As such, the men are more likely to file court cases against their spouses. Consequently, there is high likelihood that women would suffer more than men under the law.

Korea’s Adultery Statute Compared to Japan, China, and the US

South Korea continues to draw examples from the Warren Court Administration otherwise viewed as the apex of liberal legalism in America [28] . The Court played a pivotal role in social change and its functioning and continues to draw a lot of inspiration from judges and activist on a global perspective [29] . The influence of the warren court can be traced in Korea, Taiwan and Japan as a result of the Japanese colonial legacy. It can be noted that the three countries share similar institutional structures and also an inclination towards a common legal system. Procedural criminal legal actions taken by the courts from these countries have a common perspective.

Overview of Korean Criminal Law

Statutes against criminal actions in Korea are entrenched in the Korean criminal law. However, the primary legal framework of the countries Penal Code has received little change for a period extending to half a century [30] . As a result of the Japanese imperial rule and Confucian’s ideologies that criminalized immorality, there is high possibility of over-criminalized law in the Korean Penal Code. As such, crimes such as adultery remains recognizable by law and its consequences include jail term not exceeding two years. The opponents of anti-adultery law continue to advocate for comprehensive legal reforms in the Korean justice system. These reforms are fundamentally critical in helping to reverse the current trend towards over-criminalization. Therefore severe consequences on crimes such as assault, rape, sexual indecent act by compulsion and sexual intercourse under pretence of marriage among other crimes have been outlaid.

It is evident that heavier punishment upon the murder of lineal ascendants indicates that Korean criminal law is geared towards maintaining sound social morality through a legal mechanism. However, controversy over whether such punishments violate equal protection guarantee in Article 11 (1) of the constitution exist [31] . Interestingly, the country’s Judiciary is yet to review this claim. Furthermore, the criminalization of sexual encounters, feigned by marriage engagements, has received criticism due to excessive government interference on the privacy of the individuals. The provisions of the criminal law on adultery have severe legal consequences which override the primary objective of maintaining social morality through state authority and legalization mechanism.

The criminal law was developed under the authoritarian regime. The rights enumerated in the constitution were insignificant since the criminal law was drafted as an instrument of perpetuating the imperial regime [32] . Primarily, its core values sought to contain the non-conformists. Thus, the criminal law symbolized authoritarian rule and its fundamental framework therefore was oppressive in nature. Thus the criminal law criminalized and at times over-criminalized petty offenses. Ginsburg (2004) suggests that the Korean authoritarian regime oversaw the development of special criminal act which was passed outside the general criminal code [33] . It was designed to oppress non-conformists and control people in favor of the authoritarian rule. However, in 1988, the committee for the amendment of the criminal act was formed in the National Assembly. It was mandated to spearhead the democratization of the country’s legal framework by amending and repealing statutes which infringed fundamental rights and freedoms of citizens, or contradicted the newly formed 1987 constitution [34] . It was noteworthy that these were the initial advances towards transforming the country’s criminal law with a view to eliminating Confucian ideologies. However, the success in amending these Acts was subject to support by the government and judicial system through a pro-reform ruling.