Women and Justice: Court: Supreme Court of South Korea

Domestic Case Law

Supreme Court Decision 2014Do17346 Supreme Court of South Korea (2015)

Sexual violence and rape

The defendant, who was in his mid-20s, illegally had sex on four occasions with the victim (a 14-year-old middle school student) with a Level Three intellectual disability (which means a weak cognitive capacity and decision-making capacity). He initially met the victim through an online chat room and lied about his age. He used his cell phone to record videos of his sexual intercourse with the victim and to take nude pictures of the victim. The victim instantaneously objected but half-heartedly acquiesced to the defendant's requests and ultimately asked him to erase the photos. Under the Act on the Protection of Children and Juveniles against Sexual Abuse, the Prosecutor indicted Defendant on charges of having illicit sex with a disabled juvenile and producing juvenile pornography. The trial and appellate courts found the defendant guilty, and the defendant appealed to the Supreme Court. The Supreme Court held that “cognitive capacity” means the ability to rationally discern between good and evil or right and wrong, and “decision-making capacity” means the ability to control one’s behavior. Evaluating these capacities requires relying on an expert’s opinion of the child or juvenile's capacities, objective evidence, testimonies of witnesses on the child or juvenile's daily verbal expressions and behaviors, and circumstances that led to the charge, including the child or juvenile’s speech and behavior. The Court held that the Article 8(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse ("the Act") punishes those who have illicit sex with a disabled child or juvenile who has a cognitive capacity much weaker than ordinary children and juveniles, and who lacks the ability to exercise the right to sexual self-determination. Furthermore, the Court held that Article 11(1) of the Act punishes those who produced, imported, or exported child or juvenile pornography. The Court held that even if the victim implicitly consented, such consent could not be viewed as an act of a child or juvenile with sufficient cognitive capacity who voluntarily or earnestly exercised the right to sexual self-determination on an informed or educated basis. In affirming the lower court’s decision, the Supreme Court dismissed the appeal. English version available here.

피고인은 자신의 나이를 속이면서 처음부터 피해자가 중학교 3학년생인 아동 청소년임을 알고도 단지 성적 행위를 목적으로 피해자에게 인터넷 채팅을 통해 접근하여 몇 차례 연락하고 만난 사이다. 피해자는 지적 장애 3급으로서 사물을 분별하거나 의사를 결정할 능력이 미약하다. 피고인은 피해자와 처음 만난 날에 성관계를 2회 가지는 등 몇 차례 만나 성관계를 가지면서 그 장면과 피해자의 나체 사진을 촬영했다. 피해자는 순간적으로 거부감을 표시했지만 피고인은 계속 요구를 하였고 결국 피해자는 소극적으로 응하였다. 일부 사진에 대해서는 지워 달라고 요청하기도 하였다. “사물을 변별할 능력”이란 사물의 선악과 시비를 합리적으로 판단하여 정할 수 있는 능력을 의미하고, “의사를 결정할 능력을 의미한다. 사물변별능력이나 의사결정능력이 미약한지 여부는 전문가의 의견, 아동 청소년의 평소 언행에 관한 제3자의 진술 등 객관적 증거, 공소사실과 관련된 아동 청소년의 언행 및 사건의 경위등 여러 사정을 종합하여 판당할 수 있다. 아동 청소년의 성보호에 관한 법률 제8조 제1항은 19세 이상의 사람이 “장애 아동 청소년”을 간음하는 행위를 처벌한다. 청소년성보호법 제11조 제1항은 아동 청소년이용음란물을 제작 수입 또는 수출한 자를 처벌한다. 대법원은 피고인이 원심판시와 같은 사진을 각 촬영한 행위는 청소년성보호법 제11조 제1항에서 규정하는 아동 청소년이용음란물의 제작에 해당한다고 파결을 내렸다. 설령 피해자의 묵시적 동의가 있었다고 불 여지가 있더라도 사리분별력이 충분한 아동 청소년이 성적 행위에 관한 자기결정권을 자발적이고 진지하게 행사한 것으로 보기 어렵다고 판단했다. 따라서 원심이 이 부분 공소사실을 유죄로 판단한 것은 정당하다고 판단했다.

Supreme Court Decision 2013Do4279 Supreme Court of South Korea (2013)

Gender-based violence in general

Defendant was indicted for photographing a 14-year old girl’s breasts and genitals during video chats under the Act on Special Cases Concerning the Punishment, etc. of Sexual Violence Crimes (Taking Pictures by Using Camera, etc.). The court below found Defendant not guilty because the Victim took the video of herself, which the Defendant then saved to his computer against her will. Therefore, the court below ruled in favor of Defendant on the grounds that filming a video containing images of Victim's body, not her body itself, did not constitute a violation of the Act. The Court held that the judgment below was just and dismissed the appeal.

Supreme Court Decision 2004Do3161 Supreme Court of South Korea (2004)

Sexual violence and rape

Defendant molested and videotaped a four-year-old girl and three-year-old girl. The court below, based on videotapes and victims’ testimony, rendered a guilty verdict. Defendant appealed. The main issues were (1) the admissibility of a videotape that contained conversations between a private person and another person other than a defendant and recorded by a private person and (2) the criteria for determining whether young children's testimony is admissible. As to the first issue, the Court decided that unless a defendant agreed to admit a videotape as evidence, the statement in the videotape was admissible only if (1) the videotape was original, or a photocopy of an original that was not artificially edited and (2) each of the statements on the videotape were acknowledged as the same as that made by the original statement maker by his/her testimony at a preparatory hearing or during a public trial according to Article 313(1) of the Criminal Procedure Act. Based on testimonies, the Court acknowledged each statement on the videotape as the same as that made by the original stator at a preparatory hearing and decided that the videotape was admissible as evidence. As to the second issue, the Court decided that the admissibility of young child's testimony should be decided not only by age, but also by his or her individual and specific intellectual level, after examining the contents of the testimony and the child’s attitudes during the testimony and determining whether facts of past experiences lie within the scope of things that can be understood or judged by the child. Accordingly, the Court found the judgment below of "guilt" based on the evidence was appropriate and found no violation of the evidence rules in confirming the facts and the legal principles as to the credibility of the young children's testimony or failure to conduct a complete review. The Court dismissed the appeal.

Decision 2005Do8130 Supreme Court of South Korea (2006)

Sexual violence and rape, Trafficking in persons

The Defendant was running a massage parlor that had hidden rooms with beds where a young female employee massaged the whole body of a male customer. The female employee, usually wearing a short skirt and a short-sleeved tee, would undress the male customer, grab his sexual organ with her hands with lotion on, touch the body part just like engaging in a sexual intercourse, and ultimately let him ejaculate. The issue was whether the act of the female employee in the Defendant’s parlor could be considered as "acts that are similar to sexual intercourse" under Article 2 (1) 1 sub paragraph Na of the Act on the Punishment of Acts of Arranging Sexual Traffic. The Act, which aimed to eradicate prostitution and protect the human rights of the victims of prostitution, did not distinguish “sexual intercourse” from “acts that are similar to sexual intercourse”. The Supreme Court interpreted "acts that are similar to sexual intercourse" as stipulated in the above Act to refer to acts of penetrating the body through the mouth or the anus, or at least acts for gaining sexual satisfaction similar to sexual intercourse. Then the Court went through a comprehensive evaluation of the circumstances, including the place where such act was conducted, the clothes the people were wearing, the body parts that were touched, the specific content of the act, and the degree of the resulting sexual satisfaction to decide whether the female employee’s act could be considered as “acts that are similar to sexual intercourse”. The Supreme Court held that the female employee’s act could be deemed as an act of bodily contact for gaining sexual satisfaction similar to sexual intercourse, and therefore dismissed the appeal by the Defendant.

Supreme Court Decision 2005Du6461 Supreme Court of South Korea (2007)

Sexual harassment

At an elementary school dinner party attended by school faculty, the Principal offered to pour alcohol to three male and three female teachers. The three male teachers then reciprocally offered the Principal alcohol, but the three female teachers did not do the same. The Vice Principal (Plaintiff/Appellee) twice requested the female teachers to offer the Principal alcohol as well. Two out of the three female teachers (Defendants) stated that they felt sexually harassed, the request causing the female teachers to feel a sense of sexual mortification or repugnance. Considering the nature of this dinner party, the relationship between the participants, the place, the prevailing situation when Plaintiff uttered the words in question, the lower court judged that the comment and language of Plaintiff in this case could not be interpreted as sexual harassment or unpardonable behavior in violation of public morals or social order, considering the common sense and customs of society as a whole. Defendants appealed. The Supreme Court interpreted the meaning of and criteria for determining the prerequisite "sexual speech and behavior, etc.," for a finding of sexual harassment under Article 2 Subparagraph 2 of the former Act on the Prohibition and Remedy of Sexual Discrimination (amended by Act No. 6915 of May 29, 2003). The Article stipulates that the prerequisite "sexual speech and behavior” for sexual harassment is behavior which provokes in the average person a feeling of sexual mortification and repugnance, viewed in terms of the sound knowledge and practices of society, usually involving a physical, linguistic, or visual act relating to the physical traits of man and woman or a physical relationship between the two. The Court stated that it was not necessary to show that the actor in question had a sexual motive or intent to establish sexual harassment, but rather that the acts would provoke a sense of sexual mortification and repugnance to the average person in a similar situation, taking into account the relationship between the parties, the place and circumstances of the behavior, the content of the clear or presumed response to the behavior, the content and degree of the behavior, and whether the act is fleeting or short-term, as opposed to continual. Considering the conversation of the dinner party location and the circumstances under which Plaintiff requested those acts, the Court interpreted Plaintiff’s request to be not of sexual intent, but of the intent that the offer of alcohol from the boss be reciprocated. Accordingly, the Court stated that sexual harassment could not be established merely by reason of the opposing party feeling sexual mortification and repugnance if it would not objectively provoke such sexual mortification and repugnance in the average person in a similar situation. The Court upheld the lower court’s decision and dismissed the appeal.

Supreme Court Decision 2007Du22498 Supreme Court of South Korea (2008)

Gender-based violence in general

Plaintiff, who was a credit card company’s Branch Head, repetitively committed acts of sexual harassment over 14 times (hugging, calling at night, asking for massage, etc.) against eight female employees who were under his control and supervision. The company terminated Plaintiff from employment on the grounds that he harmed teamwork by sexually harassing the female employees. However, as to Plaintiff's application of remedy for the first disciplinary dismissal, the Seoul Regional Labor Relations Commission acknowledged the first termination as unjust and ordered to restore him in his former position based on the excessiveness of discipline and defect in disciplinary procedure. The company revoked the first termination in accordance with the above remedy order and restored Plaintiff to employment. Thereafter, the company terminated Plaintiff from employment the second time based on additional facts that he hugged a female employee and persuaded female employees to keep his conducts secret and rationalize his conducts against the instruction of the company. The lower court ruled that the company’s termination of Plaintiff’s employment was unjust based on the reasoning that although the plaintiff's above acts could have caused the female employees to be sexually humiliated, some female employees regarded them as mere encouragement. The Supreme Court reversed the judgment below and demanded the lower court for a new trial on the following grounds: (1) A dismissal can be justified if the employee's fault is so serious that employment relationship with him cannot be continued in light of ordinary social norms. According to Article 2 (2) of the former Act on the Equal Employment for Both Sexes (amended by Act No. 7564 of May 31, 2005), the term "sexual harassment on the job" means that an employer, superior or co-worker makes another worker feel sexually humiliated or offended by sexual words or actions by utilizing his or her position within the working place or in relation with duties, or providing disadvantages in employment on account of disobedience to the sexual words or actions and any other demands. The prerequisite of "sexual words or actions" means actions such as sexual relation, or other sexual, oral and visual actions which make an ordinary and average person in the same position with the other party objectively feel sexual humiliation or offensive feelings in light of sound common sense and customs of the community. For the above sexual harassment to be established, the actors do not necessarily have to have a sexual motive or intent, but in consideration of specific relation of the parties, place of actions and circumstances, the other party's explicit or presumed response as to the action, contents and degree of the action, frequency and duration of the action, there must be actions which make an ordinary and average person in the same position with the other party objectively feel sexual humiliation or offensive feelings, and it must be acknowledged that the other party actually felt sexual humiliation or offensive feelings. (2) In a case such as this where a certain sexual harassment was so serious or repeated from the objective perspective of an ordinary and average person in the same position as to aggravate the working condition, the employer may become liable as to the victimized worker. Sexual harassers, if allowed to continue to work without a disciplinary dismissal, could aggravate a work environment to the degree where the victimized worker cannot tolerate it. Therefore if the disciplinary dismissal was imposed upon the worker who was responsible to such degree, it cannot be viewed as an abuse of a disciplinary right unless the disposition is acknowledged as patently unfair from an objective standpoint. (3) Plaintiff committed sexual harassment on the job to eight female employees who were under his control and supervision, repeatedly taking advantage of his superior position over 14 times for a certain period of time. Even if such sexual harassment happened without the female employees’ special awareness as it was triggered from an ordinary daily attitude formed by distorted social customs or culture on the job, such an excuse could not relieve the person from the seriousness of his behavior.

Supreme Court Decision 2015Do6980 Supreme Court of South Korea (2015)

Sexual violence and rape

Defendant was roaming the street after drinking alone at night. He followed Victim (a 17-year-old girl) getting off the bus and walking alone. Upon nearing a desolated place, Defendant approached the Victim, while wearing and mask, holding both of his arms high to hug her. Sensing someone behind her, the Victim turned around and yelled “What are you doing?” to which the Defendant remained still and stared for a few seconds before retreating. Defendant was indicted on attempting to assault a child or juvenile which is in violation of the Act on the Protection of Children and Juveniles against Sexual Abuse. The first instance court found the Defendant guilty but the appeals court reversed the first instance judgment and acquitted Defendant. The Prosecutor then appealed to the Supreme Court. The Supreme Court held the crime of indecent act by force includes an indecent act committed after making the other party unable to resist by use of violence or threat and the act of assault itself is considered as an indecent act, and such assault is not confined to the extent of suppressing the other party’s will. An indecent act refers to an act that deviates from sexual moral norms causing a victim to feel shame or disgust, and violating the victim’s sexual freedom. Whether such crime is established should be carefully determined by factoring in: the victim’s reciprocity, gender, and age; relationship between the victim and perpetrator prior to the act; circumstances leading to the act; means and method used to commit the act; objective circumstances; and sexual moral norms at the time. In addition, the crime of attempted indecent act by force is established when the act of violence with the intention to commit an indecent act does not lead to actual commission of indecent act, and this legal principle applies to cases of “indecent act by surprise” where the act of assault in itself is acknowledged as an indecent act. Accordingly, Defendant was charged of violating the Act on the Protection of Children and Juveniles against Sexual Abuse.

Decision 2012Do14788 Supreme Court of South Korea (2013)

Gender-based violence in general

After threatening and assaulting the Victim (wife) with a deadly weapon, the Defendant (husband) had violent sexual intercourse with his wife after they had started using separate rooms due to consistent dispute.” The Supreme Court found that the term ‘female’ as the victim of rape as provided by Article 297 of the Criminal Act included the offender’s legally wedded wife and that the crime of rape was established when the husband had sexual intercourse with his wife by disabling or hindering resistance through violence or intimidation in a sustained marriage. The Supreme Court stated that the legal interests protected by rape laws are not ‘women’s fidelity’ or ‘sexual chastity’ concepts based on the premise of a man as a current or future spouse, but a woman’s own sexual autonomy as a free and independent individual. Therefore, the Court concluded that the crime of rape was established in this forced marital sex case.

Supreme Court Decision 2002Do51 Supreme Court of South Korea (2012)

Sexual violence and rape

The Defendant raped the Victim in a car on several occasions. In addition to raping the Victim, the Defendant threatened the Victim and committed violence against the Victim. The lower court dismissed the rape charges filed by the Victim, finding that the six-month statute of limitations under Article 230 Item I of the Criminal Procedure Act had passed. The Supreme Court of South Korea reversed, noting that Article 2 (1) 3 of the Act on the Punishment of Sexual Crimes and Protection of Victims ("the Sexual Crimes Act") defines rape under Article 297 of the Criminal Act as a sexual crime and extends the statute of limitations to one year. While the Supreme Court reversed the lower court’s dismissal of the rape charges, it noted that since only the Victim can bring rape charges, any violence or threats of violence used in connection with the rape are elements of the crime of rape and cannot be prosecuted separately.

Supreme Court Decision 2009Do2576 Supreme Court of South Korea (2009)

Sexual violence and rape

The Defendant was a part-time elementary school teacher who conducted health examinations for students. After checking the pulse of a student, the Defendant placed his hands inside the student’s clothes and touched her breasts. The lower court did not find this conduct to constitute “disgraceful conduct” against minors under thirteen years of age as provided by Article 8-2 (5) of the Act on the Punishment of Sexual Crimes and Protection of Victims, holding that the Defendant did not possess a subjective motive “to stimulate, stir up, and satisfy his sexual desires.” The Supreme Court reversed and remanded, holding that the subjective motive of the offender is not relevant in determining the crime of disgraceful conduct against minors. Instead, the Defendant’s conduct constitutes disgraceful conduct if his actions make an ordinary average person, in the victim’s same position, objectively feel sexual shame or offense. Additionally, the actions must be contrary to sound sexual moral norms, and thereby must have a negative effect on the victim’s mental growth. Finding that the lower court made an error in applying the law, the Court remanded the case to the Seoul High Court.

Supreme Court Decision 2008Da89712 Supreme Court of South Korea (2009)

Employment discrimination, Gender discrimination, Sexual harassment, Sexual violence and rape

The Plaintiff worked as an employee for a corporation in which the Defendant served as a supervisor. The Defendant, who had the authority to hire and fire employees, singled out the Plaintiff frequently for her passive nature and alleged inferior job skills. On numerous occasions, the Defendant forced the Plaintiff to touch his penis and engaged in other various acts of sexual misconduct. The lower court found that the Defendant’s sexual misconduct constituted an invasion of the Plaintiff’s right to self-determination. Additionally, the lower court found the employer, the Defendant-Corporation, liable for the supervisor’s sexual misconduct. The Supreme Court of Korea affirmed, finding the supervisor and employer liable. Under Article 756 of the Civil Act, an employer can be held liable for an employee’s action if the act is “related to the employee’s execution of the undertaking (for which he is employed).” Thus, the Supreme Court noted that when an employee injures another intentionally, even if the act is not related to the employee’s undertaking of his job responsibilities, employer liability still attaches if the misconduct is “apparently and objectively related” to the employer’s work. Additionally, if an employee commits an intentional act such as sexual misconduct, the court noted employer liability attaches where the misconduct was objectively related to the execution of the employer’s work. Noting the Defendant-employee’s authority to fire and hire employees, as well as his ability to punish the Plaintiff for resisting his unwelcome sexual advances, the Supreme Court held that the Defendant-employee took advantage of his superior position over the Plaintiff and therefore committed the sexual misconduct in a situation proximate, in terms of time and place, to his job responsibilities. Therefore, the court found the lower court correctly applied the law in finding employer liability, as the sexual misconduct was objectively related to the Defendant’s job duties.

Supreme Court Decision 2009Do3580 Supreme Court of South Korea (2009)

Gender discrimination, Gender-based violence in general, Sexual violence and rape

The Victim, born a male, identified as a female while growing up and was diagnosed with gender identity disorder. At the age of twenty-four, the Victim underwent a sex-change operation and was diagnosed as a transsexual by a psychiatrist. The Victim had cohabited with a male for ten years and had lived as a female for the past thirty years after the operation. Under Korean law, the victim of the crime of rape must be female. Thus, the central issue of the case pertained to the appropriate standard in determining the legal gender of a rape victim. The Supreme Court affirmed the lower court’s decision, holding that the Victim was a female under the law. In making this decision, the court noted that it must conduct a comprehensive evaluation of the biological, psychological and social factors, rather than merely relying on biology. Thus, in determining an individual’s gender, the Supreme Court noted that lower courts must consider the individual’s own sense of identity, including an individual’s behavior, attitude and characteristics. Additionally, courts must look to factors such as the individual’s discomfort regarding his or her biologically assigned gender, the individual’s sense of belonging and identity, whether the individual wants to obtain the genitals and other sexual characteristics of the opposite sex, whether a psychiatrist has diagnosed the individual as having transsexualism and whether the individual has received psychiatric treatment and hormone therapy, which failed to cure such symptoms. Lastly, courts must look at factors such as whether the individual has adapted to the opposite sex mentally and socially, has undergone sex reassignment surgery, identifies with such gender, wears the clothes and carries him or herself as the opposite sex, and whether others accept the changed gender. In this case, the Victim identified herself as a female and did not associate herself as a male, underwent a sex-change operation, and lived her life as a female for over thirty years after the operation. Thus, the court concluded the Victim was a female, and a rape was committed with knowledge that the Victim was a female.

Supreme Court Decision 2005Meu1689 Supreme Court of South Korea (2005)

Divorce and dissolution of marriage, Domestic and intimate partner violence

The Plaintiff sought a divorce from the Defendant. Upon requesting approval of the divorce from the Defendant, the Plaintiff was slapped by the Defendant. Additionally, the Defendant physically confronted the Plaintiff on a separate occasion, resulting in fractures of the Plaintiff’s face and neck. Despite such physical abuse, the lower court found that the relationship between the Plaintiff and the Defendant did not reach a degree in which it was impossible to restore. On appeal, the Supreme Court reversed, finding that the use of violence in a conjugal relationship cannot be justified. In addition to emphasizing the severity of the Plaintiff’s injuries, the Supreme Court noted that the lower court should have reviewed in detail how the Defendant’s use of violence influenced the marital relationship, whether the marital relationship between the Plaintiff and the Defendant reached a point in which it was impossible to restore due to the loss of love and trust that should form the foundation of the marital relationship, and whether it would prove unbearable for the Plaintiff to remain in the relationship. Unless it can be proven in the affirmative that the parties can restore the relationship and it would not be unbearable for the Plaintiff to remain in such a relationship, the lower court should grant the Plaintiff’s claim for divorce. Thus, the lower court erred when it failed to examine these factors and the extent of responsibility between the Plaintiff and the Defendant. Consequently, the Supreme Court reversed the finding of the lower court and remanded.

Supreme Court Decision 2005Du13414 Supreme Court of South Korea (2006)

Sexual harassment

The Supreme Court dismissed an appeal by a governor of a province claiming that because he was found not violating the Election of Public Officials Act (the “Election Act”), he should also be found not guilty of sexual harassment charges under the former Prohibition of and Remedies for Gender Discrimination Act (the “Discrimination Act”). The governor sexually harassed the defendant, a president of a vocation association, at meetings to discuss the upcoming general elections for governor. The Supreme Court held that plaintiff’s sexual behavior at such meetings constituted workplace sexual harassment, because their meetings had relevance to work, i.e. meeting to discuss governor’s elections.

Supreme Court Decision 2009Da19864 Supreme Court of South Korea (2011)

Gender discrimination

The Supreme Court upheld lower court’s decision finding that the Seoul Young Men’s Christian Associations (“YMCA”), a private organization, violated the Constitution when it excluded female from general membership. The Supreme Court found sexual discrimination, which excludes women from general membership qualification, to be against “social order exceeding tolerable limits in light of our community’s sound common senses and legal sentiment.” Accordingly, the Supreme Court found YMCA to have violated the Constitution despite its private organization status.