Section 3 Current Legal System and Changes in Legal
6. Approval of the Criminalization of Adultery
Result %
··· ···
Strongly agree 5.6
Agree 27.7 33.3
Disagree 38.6
Strongly disagree 27.0 65.6
Don’t know/No opinion 1.1
···
Total (N=3,000) 100.0
6. Approval of the Criminalization of Adultery
[General Analysis]
When asked whether to abolish the law criminalizing adultery, a majority (65.6%) of the respondents selected ‘disagree (38.6%)’ or
‘strongly disagree (27.0%)’, compared to 33.3% who chose ‘agree (27.7%)’ or ‘strongly agree (5.6%)’, which was 32.3% lower than those who disagree. Similar results were also there in a survey conducted by the Korean Women’s Development Institute in 2014, a survey conducted by the Kukmin Daily in 2015, and a survey conducted by the Gallup Korea in 2015, in which 60%, 70% (80.8% of female respondents and 57.8% of male respondents) and 53%, respectively, disagreed with the abolition of the law criminalizing adultery.
148)148) According to a survey conducted by the Korean Women’s Development Institute regarding the abolition of the law criminalizing adultery among 2,000 men and women aged 19 and over across the country on June 24-27, 2014, only 18.5% of the respondents agreed, 21.2% neither agreed nor disagreed and 60% disagreed that
Section 3 Current Legal System and Changes in Legal Awareness
The Criminal Act provides that a married person that commits adultery shall be punished by imprisonment for not more than two years; the same shall apply to the other participant (Article 241 (1) of the Criminal Act).
In such cases, the crime of adultery shall be prosecuted only upon the complaint of the victimized spouse; and if the victimized spouse condones or pardons the adultery, no other complaints can be made (Article 241 (2) of the Criminal Act).
The Constitutional Court held in 2008, that the criminalization of adultery was constitutional
149), though four of the Justices gave obiter
the law criminalizing adultery should be abolished (See Park, Sun-Young, Song, Hyo-Jin, Goo, Mi-Young, Kim, Jeong-Hye and Yoo, Hye-Gyeong, “In-Depth Analysis on the Crime of Adultery”, Korean Women’s Development Institute, 2014, p. 56). In addition, according to a survey (confidence level: 95%, sampling error:
±3.10%p) conducted by Kukmin Daily regarding the abolition of the law criminalizing adultery among 1,000 male and female adults (200 for each age group from the twenties to sixties) across the country on February 25, 2015, 80.8%
of the female respondents and 57.8% of the male respondents agreed that the law criminalizing adultery should be maintained (Abolition of the Crime of Adultery- Kukmin Daily survey conducted through mobile phones (N=1,000): “70% disagree with the abolition of the law criminalizing adultery”, The Kukmin Daily, February 27, 2015 http://news.kmib.co.kr/article/view.asp?arcid=0922975229&code=11131100).
Furthermore, according to a survey conducted by Gallup Korea regarding the abolition of the law criminalizing adultery through the RRD method based via mobile phones among 1,003 adults across the country on March 3-5, 2015, the most preferred option was ‘disagree’ (53%), followed by ‘agree’ (34%) and ‘don’t know/no opinion’ (13%) (Daily Opinion, Issue No. 152, Gallup Korea, First Week of March 2015, p. 10).
149) The contested provision in this case acts as an appropriate means to serve the legitimate legislative purpose by restricting adultery and sexual intercourse in order to protect marital relationships and preserve social order. Though the restrictive regulation involving criminal punishment may be of issue, but this is presupposed by the freedom of legislation. Given the legal awareness that adultery harms social order and violates presubscribed rights, in addition to the strong demand for preemptive prevention of adultery and sexual intercourse, the legislature’s judgment to criminally punish adultery and sexual intercourse is not arbitrary. In addition, the private interest infringed by the provision in this case is as good as restriction on sexual acts in specific relationships and thus insignificant when compared to the
Chapter 3 Recent Changes in the Legal System and the Public Legal Awareness
dictum of its unconstitutionality and one an opinion of incompatibility with the Constitution. This ruling of the Constitutional Court changed in February 2015, by holding that Article 241 of the Criminal Act providing that, ‘A married person who commits adultery shall be punished by imprisonment for not more than two years. The same shall apply to the other participant.’ was unconstitutional, because it infringed on the right to sexual autonomy and the privacy right.
150)The ruling of the Constitutional Court declaring the criminalization of adultery unconstitutional generated an astounding response, by society, and led to those convicted of committing adultery to commence action for the conviction to be
resulting public interest, thereby achieving the balance of interests as well. In that sense, the provision in this case does not infringe on the individual right to sexual autonomy and privacy, therefore, it does not violate the rule against excessive restriction. It is true that the provision imposes only imprisonment as a statutory sentence, but this does not necessarily mean that the punishment is overly excessive (Constitutional Court Decision [2007Hun-Ga17, October 30, 2008].
150) As the social structure and the public’s perception about marriage and sex shift and the right to sexual autonomy is viewed more seriously, it is difficult to say that there is a consensus on whether adultery should be punished as a criminal offense.
The current trend in criminal legislation is that private sexual behavior, though contrary to morality, should be free from state control unless seriously harming the society or constituting an infringement of a concrete legal interest, and thus, the abolition of the criminalaization of adultery conforms to the global trend. Whether to maintain a marriage and a family should be left to the free will of the parties and should not rely on external factors such as the criminalization of adultery. Conviction of adultery is currently very rare and the social censure of adulterous act has tempered, thus, the adultery provision is losing its function as a norm regulating behavior and as a deterrence for general and special prevention of the criminal policy Monogamy of a married couple and the protection of female spouse can be more effectively secured through civil proceedings, such as claims for judicial divorce and compensation for damage, while the adultery provision would be used by the spouse, who is at fault, to compel divorce or by those outside the marriage to blackmail those who have cheated on their spouse. In conclusion, the contested provision is against the Constitution of the Republic of Korea because it infringes on the people’s right to sexual autonomy and privacy; and thus, violates the rule against excessive restriction (Constitutional Court Decision [2009Hun-Ba17, February 26, 2015]).
Section 3 Current Legal System and Changes in Legal Awareness
overturned.
151)Despite the abolition of the crimilaization of adultery, the Supreme Court still upholds the fault-based divorce principle as demonstrated in a decision that rejected a divorce petition filed by a spouse who was at fault in 2015, based on the fault-based divorce principle (supported by seven of the justices though six stated dissenting opinion (no-fault divorce principle)).
152)<Figure 42> Do You Agree with the Abolition of the Law Criminalizing Adultery
Strongly agree Agree Disagree Strongly disagree
Don’t know/
No opinion (n=3,000, %)
5.6
27.7
38.6
27.0
1.1 33.3%
65.6%
151) Constitutional Court Decision [2013Hun-Ma873, April 30, 2015].
152) Article 840 of the Civil Act includes in the causes for divorce a ‘serious cause for making it difficult to continue the marriage’, which can be interpreted as where a couple’s communal living relationship constituting the essence of marriage, which must be based on affection and trust between the spouses, is irrevocably broken and the continuation of marriage would cause unbearable pain to either spouse. If a couple’s communal life has deteriorated and nonexistent for such reasons as a long-term separation and reaches a point where it is objectively irrecovable, the couple’s communal life constituting the substance of marriage cannot be deemed to continue. As seen in this case, where the couple’s communal life has deteriorated and is irrecovable, a third party in a sexual relationship with one spouse of the deteriorated marriage may not be considered to intrude upon or disturb the couple’s communal life despite the continuance of their marriage. Thus, it cannot be liable for a tort based on a violation of the right to the couple’s communal life. This legal judgment does not depend on whether a claim for judicial divorce is pending or not (Supreme Court Full Bench Decision [2011Meu2997, November 20, 2014]).
Chapter 3 Recent Changes in the Legal System and the Public Legal Awareness
Classification
(Unit: %) Number of Respondents
Strongly
Agree Agree Disagree Strongly Disagree
Gender Male 1,489 8.1 36.4 35.7 18.7 1.1 44.5 54.4
Female 1,511 3.1 19.1 41.5 35.2 1.2 22.2 76.7
High school 1,196 4.1 25.8 41.4 27.0 1.6 29.9 68.4 College and
higher 1,409 6.9 31.4 36.8 24.4 0.5 38.3 61.2
[Cluster Analysis]
A cluster analysis of responses on whether people agree with the abolition of the law criminalizing adultery illustrates that the percentage of agreement is significantly higher among men (44.5%) than women (22.2%). In addition, this is especially higher in the 40-49 age group (42.3%) than in any other age group. Ultimately, the percentage of agreement is relatively higher in the groups with a higher level of education and subjective stratum identification and in the group with a more progressive inclination.
<Table 43> Cluster Analysis of Responses regarding Whether people Agree
with Abolition of the Law Criminalizing Adultery
Section 3 Current Legal System and Changes in Legal Awareness
Classification (Unit: %)
Number of Respondents
Strongly
Agree Agree Disagree Strongly Disagree
Don’t Know/
OpinionNo
Total Agree Disagree
Total 3,000 5.6 27.7 38.6 27.0 1.1 33.3 65.6
Subjective Stratum Identification
Lower class 1,352 5.5 24.1 41.5 27.6 1.2 29.6 69.1 Middle class 1,527 5.5 30.5 36.5 26.4 1.1 36.0 62.9
Upper class 122 7.6 31.4 33.5 27.5 0.0 39.0 61.0
Ideological Inclination
Progressive 683 7.5 32.8 35.9 22.5 1.2 40.3 58.4
Moderate 1,462 5.3 27.2 39.2 27.2 1.1 32.5 66.4
Conservative 855 4.6 24.3 39.8 30.2 1.1 28.9 70.0