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South Korea: Criminal Provision on Adultery Held Unconstitutional

(Mar. 24, 2015) South Korea’s Constitutional Court has struck down the provision that defined the crime of adultery in the Criminal Act, ending a decades-long controversy. (2009 Hun-Ba 17, Con. Ct., Feb. 26, 2015, Constitutional Court website (in Korean); Criminal Act, Act No. 293 (Sept. 18, 1953, as last amended by Act No.12898 of Dec. 30, 2014), art. 241 (in Korean).) The provision on adultery as a criminal offense has been controversial since the law was adopted in 1953. (Rahn Kim & Kyung-min Lee, Anti-Adultery Law Passes into History, KOREA TIMES (Feb. 26, 2015).)

The court has turned down petitions to abolish the law on four previous occasions, saying “sexual self-determination should be limited for [purposes of] social order.” (Id.) In the recent decision, the Court found that article 241 of the Criminal Act, which made the act of adultery a crime punishable by imprisonment not to exceed two years, unconstitutional by a majority of seven to two. (Hyun-jeong Lee, Court Scraps Adultery Ban, KOREA HERALD (Feb. 26, 2015).) Six votes are needed to overturn the statute as unconstitutional by the nine-member tribunal. (Constitutional Court Act, Act No. 4017 (Aug. 5, 1988, as last amended by Act. 12897 of Dec. 30, 2014), art. 23, ¶ 2, Korea Ministry of Government Legislation website (in Korean).)

The majority opinion explained that there is no longer any public consensus regarding the criminalization of adultery and that it should be left to the individual’s free will and choice whether to maintain a marriage. (2009 Hun-Ba17, supra; Lee, supra.) The majority of the judges also noted that the law has become ineffective as a deterrence measure, as the rate of actual prosecutions of the act and the severity of the social criticism of adultery have diminished. (2009 Hun-Ba17, supra.) The judges therefore concluded that the law overly limited the individual’s right to sexual self-determination and to privacy and that it was not effective in achieving the public policy objective of protecting marriages and the spousal obligation of faithfulness. (Id.)

The two dissenting judges viewed the matter differently, saying that the act of adultery is not included in the realm of the protected individual right to sexual self-determination, because such an act would damage the marriage-based social system and have a destructive impact on protecting and maintaining families. (Lee, supra.)

Implications of the Decision

The court’s landmark ruling is expected to affect thousands of people who have been punished to date. (Id.) While about 100,000 people have been punished by the law since its enactment, only some 5,400 people are expected to be allowed a retrial pursuant to article 47, paragraph 4, of the Constitutional Court Act, which permits retrials of final judgment of criminal liability based on a statute which is later found to be unconstitutional. Upon the decision of unconstitutionality, a criminal code provision losses its effect retroactively from the date after the last holding of constitutionality. (Constitutional Court Act, art. 47, ¶ 3.) In this case, the last decision upholding the constitutionality of the anti-adultery statute was on October 30, 2008. (Lee, supra.)

Prepared by Kyewon Noh, Law Library Intern, under the supervision of Sayuri Umeda, Senior Legal Specialist.