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Analysis of South Korea's Adultery Law
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.
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  . Democratization has seen the Korean criminal law reviewed against “nullum crimen, nulla poena sine lege"  . 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  . 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  . 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  . 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  .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  . The law provides that such a person should serve a maximum sentence not exceeding 2 years imprisonment  . 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  . 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)  .
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  . 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  . 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  .
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  .
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  . 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. 
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  . 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"  . 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  .
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  . 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  .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  . 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  .
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  . 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  . 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  . 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  . 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  . 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  . 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  . 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  . 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  . 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  . 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  . 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.
Consequently, some special criminal acts were revised accordingly. The special criminal acts included the National Security Act, the Security Surveillance Act and the Social Protection Act  . The amendments were aimed at promoting social liberty among citizens necessitated by the continuously and rapidly advancing social order. The adultery crime was a clear example of the influence of Korean criminal law from the moralist tradition. Yet, adultery is a crime according to Article 241 of the Penal Code .Article 241 provides for a maximum of two-year jail term for married individuals found engaging in adultery alongside their partner. According to the law, Adulterers can only be prosecuted upon accusation by their spouses in circumstances where the accusations can only hold prior to marriage dissolution or after filing a divorce action petition. According to Korean Justice Statistics, there were 150,000 who were prosecuted for engaging in adultery and related cases in the 1980s  .
The family court of Seoul was faced with the case raised by eight couples which sought for justification or the constitutionality of Article 809 of the Penal Code. In response, the court referred the case to the Constitutional Court. The complainants argued that the code violated their fundamental right for the pursuit of happiness, the family life right as guaranteed in articles 10 and 36 and chapter two of the republic of Korea constitution (Article 809 of the Korean civil code, n d). Chapter two highlighted the rights and duties of the citizens.
Two years later, the Constitutional Court ruled seven to two against article 809. The court observed that Article 809 was in conflict with constitution and declared that if the National Assembly failed to amend it, it was null and void  . The court further ruled that not until the National Assembly amended this article, other courts, government agencies and local governments could not apply it. In view of this court ruling, the Supreme Court of Korea ruled requiring new family registration provisions for applications of couples who shared surnames .Moreover, the rules of the Supreme Court on the family register which prohibited registration of marriage between such couples, rule number 172 and the rule on mistaken registration, rule number 176, were abolished  . The majority opinion stated that, law against marriage among members of the same lineage violated the dignity of human beings and the right to the pursuit of happiness. The same were guaranteed by the constitution and the right for free marriage equality. Consequently, the ministry of justice forwarded a reform bill to the National Assembly which included the repeal of the article 809. Despite the strong opposition from the Confucians, Article 809 was repealed from the bill by the law sub-committee in the National Assembly.
6.0 Analysis of Adultery Statute in Korea
Subject to the Confucian influence on specific provisions of the Penal Code, a judicious trait of moral conception of the filial duty remains. Due to the profound role of Confucianism on Korean’s ideas on ethics and behavioral uprightness, the conservative nature of the society on sexuality is immensely upheld across all ages. Indeed, despite the prevalent Koreans’ economic growth, modernization and urbanization, the country’s contemporary society observes Confucianism far more than Buddhism or Christianity  . In either case, the judicial practitioners are not exempt. As such, their ruling is more inclined to arguably sound ethical and moral standards as exemplified by the Confucianism.
The Republic of Korea (ROK) Penal Code needs not be a duplication of American criminal law; instead it should create room or provide models for possible amendments, common in Americans’ criminal law provisions. Provision for amendment would facilitate the shifting of ROK Penal Code from authoritarian past to match the needs of the contemporary South Korea and the democratic society at large. The Code continues to criminalize other misdemeanor behaviors which could otherwise be addressed adequately by civil sanctions. Still, adultery may retain relevance for the family law provisions where it would handle cases involving divorce more amicably.
The constitutional amendment to the adultery provisions which resulted to the Constitutional Court upholding section 241 of the ROK Penal Code did not violate the South Korean constitution  . This ruling evidently indicates the Confucianism conservativeness of Korean society. In contrast, adultery has been decriminalized in a reasonable number of foreign jurisdictions which matched with ROK contemporary society. Undoubtedly, the Constitutional Court had been very active in striking down a large number of other laws as unconstitutional. Key among them was a number of issues related to freedom of expression as entrenched in the ROK Periodicals Statute and the ROK Motion Pictures Statute. In the same vein, adultery would have been struck down or relegated to the civil courts. From a legal perspective, a vote of six out of nine Justices required for the constitutional amendment lacked a constitutional challenge.
By no means, the Constitutional Court decision was affected by the dynamic perception of the Koreans with regard to privacy, liberalized sex culture and enhanced women’s status. Therefore a robust opposition to the advancement of the aforementioned societal values isolates the audacity of the judgment. Nonetheless, even if the push for adultery Law abolition continues to a dead end, the future modernization of Korean society will override the impudence of the adultery law. The South Korean adultery law falls short of several justifications. According to its critics, its liability to a jail term is not only archaic but also violates personal sovereignty. Appeals such as those filed by lawyers to the Supreme Court in the recently concluded Ok- So ri’s case signify the urgency for the amendment of this statute  . In Ok’s appeal, the Constitutional Court ruled that the anti-adultery law did not violate individuals’ right to sexual liberty and the right to privacy.
On the contrary, Korean society has a legal perception that adultery violates the social order and violates the rights of another person. Thus the society and legal experts share a similar perception that the anti- adultery law fails to adequately deter adulterers and instead disregards personal rights. Thus given that the anti-adultery law is entrenched in the country’s constitutional legal framework that ought to uphold human rights, its existence contradicts the citizen’s constitutional rights  . A sound legal system ought to be free of conflicting clauses as exemplified by the adultery law. From the society’s perspective, adultery law has been turned into an instrument of revenge used by spouses rather than a means of maintaining the family as a social institution. Moreover, it has developed into a challenge against the South Korean rule of law. In this regard, a complainant may lodge false claims purporting infidelity with an objective of sharing family property or children custody.
Some sections of society have favored its repeal on the basis of a free-sex culture whereas others opposed it based on Confucian’s values. In total disregard of these values, the emergence of love motels mostly utilized for adulterous relations continue to thrive while divorce cases are on the increase. Interestingly, the law has lost backing from women who earlier supported criminalization of adultery in a male dominated society. Through organizations such as the Korean Women’s’ Association United and the Ministry of Gender Equality, a certain section of women are now seeking its abolition  . Unlike in the past when women mostly filed law suits against their adulterous husbands, a growing number of men now file law suits against their spouses. According to Korean women, the anti-adultery statute has assumed the role of privacy violation rather than women protection.
The underlying principle of the adultery law is challenged by such occurrences of which not only creates conflicting issues between families, but also weakens the family as an institution  . However, its enactment was meant to protect women in a male dominated society, a notion that has changed over the years following liberalization and enlightenment women. Compensation in a civil court would be a better option for spouses seeking legal redress. Protecting the family institution as characterized by the adultery law would still hold, since the civil court upholds the continuity of the family as a social institution. The adultery law concentrates on the technical aspects of the sexual action and continues to allow the government to meddle in the privacy of the citizen’s sexual life. Therefore it’s imperative that the Korean Law be reformed to uphold the fundamentals of these freedoms and rights of its citizens.
The Korean Justice Department needs to establish a sound legal framework which will in future cases address adultery. As the public debate rages on the need to adopt a new legal framework, adequate constitutional changes and de-criminalization of the law is required. Legal reforms are necessary in order to eliminate over-criminalization of crimes with less magnitude. Korea needs to establish an autonomous legal approach towards adultery by withdrawing government and foreign influence through an amendment. While other jurisdictions such as Japan, China and even the United States regard adultery as a mere immoral behavior that does not necessarily attract a severe sentence, South Korea continues to uphold this law. Yet, tenets of modernization continue to be violated through public disclosure of adulterous encounters. Though adultery is an immoral act, its continued publicity erodes the citizen’s confidence in their government’s role to protect their constitutional right to privacy. As an industrialized and modernized country, South Korea should borrow from its neighbors and de-criminalize adultery. Moreover, Korean government should consider referring adultery cases to traditional or civil courts for amicable arbitration.
As evidenced by the traditional norms of the Korean community, traditional courts have the capacity to arbitrate on adultery cases that do not involve bodily harm. Nevertheless, the traditional Korean culture maintained sound moral standards that eliminated adultery and similar immoral behaviors. Once the state withdraws from handling adultery cases, it will have an increased capacity to effectively handle other cases of high magnitude with speed. In addition, a special divorce court is capable of handling adultery cases and therefore there is urgent need to withdraw such cases from the criminal court. People found guilty of committing adultery should be charged by means of civil sanctions together with imputed moral reprimand rather than imprisonment. Criminalizing adultery violates the individual’s privacy despite maintaining sound sexual morality. As Korean society becomes more modernized and enlightened with regard to fundamental rights, the traditional norms of maintaining sound sexual morality will be soon overridden. Therefore, the country should ape its Eastern Asian counterparts such as China, Japan and North Korea who have since moved on to de-criminalize adultery.
As a result of the pressure from different stakeholders, South Korean government should heed to the call and amend the statute. It’s also important that the government eliminates the existing conflict between anti-adultery law, traditional norms and the constitution. Arbitration of adultery cases should be left to the civil courts. Furthermore, the anti-adultery law is more included to traditional norms and thus should not be entrenched in the constitution.
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