Decision 2012Do14788, South Korea, Supreme Court, 2013.
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, South Korea, Supreme Court, 2012.
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 2009Da19864, South Korea, Supreme Court, 2011.
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.
Case of Presumption of Biological Child for a Foreign Born Child. 2008Reu2020, 3283, South Korea, Seoul Family Court, 2009.
The Plaintiff (Husband) and the Defendant (Wife) married in 2004. The Defendant, initially from China, went to China on December 25, 2006 without informing the Plaintiff. The Defendant returned to the Republic of Korea on January 10, 2007 but lived with a friend rather than the Plaintiff. In March 2007, the Defendant discovered she was pregnant but did not inform her husband. The Defendant gave birth to the child in Hong Kong on August 12, 2007. After giving birth, the Defendant notified the Plaintiff that a Hong Kong birth certificate requires the father’s signature. The Plaintiff proceeded to travel to Hong Kong and signed the certificate. The Defendant-wife returned to Korea in September 2007 and proceeded to live with a friend. The Defendant attempted to keep in contact with the Plaintiff but the Plaintiff refused to maintain such contact. The Plaintiff proceeded to file a divorce claim in February 2008, alleging that “from December 2006, the contact with the Defendant was completely cut off.” The Defendant countered with her own divorce claim. The Seoul Family Court dismissed the Plaintiff’s divorce claim but upheld the Defendant’s claim, finding that the fundamental breakdown of the marriage lied with the Plaintiff. While the court noted that the Defendant was also to blame, the court emphasized the fact that the Defendant attempted to initiate contact with the Plaintiff after giving birth to their child but the Plaintiff refused to make any such effort in restoring the relationship. Thus, the court ordered the Plaintiff to pay the Defendant three million won as compensation with a five percent interest rate per annum under the Civil Act. Additionally, the court ordered the Plaintiff to pay 400,000 won per month in future child rearing expenses, despite the fact that the Plaintiff was not registered as the child’s father in the Republic of Korea’s family registry. Citing Article 844 (1) of the Civil Act, the court held that there is a presumption that the wife’s husband is the father when the wife gives birth during the marriage. In determining the amount of child rearing expenses, the court considered the age and rearing condition of the child, the age and occupation of the Plaintiff and the Defendant, as well as other circumstances.
Supreme Court Decision 2008Da89712,, South Korea, Supreme Court, 2009.
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 2009Do2576, South Korea, Supreme Court, 2009.
The Supreme Court found the act of an elementary school teacher (“Defendant”) conducting a health examination to constitute “disgraceful conduct” as stipulated in Article 8-2(5) of the Act on the Punishment of Sexual Crimes and Protection of Victims (against minors aged 13
and below). The Supreme Court stated that even though the Defendant may not have subjective motive or purpose to “stimulate, stir up, and satisfy his sexual desire because such act was made in front of the students going with her, the Defendant’s act can be evaluated as disgraceful conduct.”
Supreme Court Decision 2009Do2576, South Korea, Supreme Court, 2009.
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 2009Do3580, South Korea, Supreme Court, 2009.
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 2007Du22498, South Korea, Supreme Court, 2008.
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.
Case of Liabilities for Sexual Harassment, Forced Drinking, Etc. 2006Na109669, South Korea, Seoul High Court, 2007.
The Plaintiff was hired by Company and placed in the marketing team of the marketing division. The Defendant served as the chief of the
marketing division and the marketing team. On several occasions, the Defendant inappropriately touched the Plaintiff’s shoulders, legs, and breasts at work and work events. Additionally, the Defendant forced the Plaintiff to drink liquor on several occasions despite the Plaintiff informing the Defendant that she could not drink as a result of a stomach illness. At work and dinner parties, the Defendant often required the Plaintiff to sit next to him and often placed his arm around the Plaintiff’s waist. The Seoul High Court determined that the Defendant’s sexual actions violated the Act on the Punishment of Sexual Crimes and Protection of Victims Thereof, after considering factors such as the respective ages of the parties and their relation to one another, the location of the behavior, the existence of a sexual motive, the degree of the behavior, and the frequency of such behavior. In making a determination of unlawful conduct, it must be established that such behavior contravened social customs and order. Applying this standard to the facts of this case, the court found that the Defendant frequently touched the Plaintiff’s neck, shoulder, breasts, and waist at the workplace and at social events. Noting that the Defendant supervised and controlled the Plaintiff at work, the court found there was a clear sexual motive as the conduct was frequent and continuous over time and such conduct embarrassed and humiliated the Plaintiff. Consequently, the Defendant’s behavior violated the Plaintiff’s personal rights and was against societal norms and customs. In addition, the court found that the Defendant violated the law by forcing the Plaintiff to drink against her will. Therefore, the court awarded the Plaintiff damages of 30 million won with 5% interest per annum.
Supreme Court Decision 2005Du6461, South Korea, Supreme Court, 2007.
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.
Decision 2005Do8130, South Korea, Supreme Court , 2006.
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.
So-called Brothel Building Provider Case, South Korea, Constitutional Court, 2006.
The petitioner filed a complaint that the Act on the Punishment of Arranging Sexual Traffic (hereinafter "The Act") which prohibits the "providing [of] buildings or land with the knowledge that it will be used for sexual traffic" is unconstitutional. The petitioner owned or had management rights to buildings located in a brothel area, and since the buildings could not be leased out other than for purposes of sex trafficking, petitioner argued that the regulation pursuant to The Act excessively infringed on his right to property. The Court held that restrictions imposed by the Act are appropriate to achieve its legislative purpose, which is to root out sexual trafficking and the acts of arranging it, and to protect the human rights of the victims of sex trafficking. The Court reasoned that "[i]t is necessary for the state to protect women driven to such sexual traffic, and to regulate middlemen of sexual traffic." The court held that the public good that is achieved by preventing the sexual trafficking in brothels outweighs the "short term private losses" suffered by the petitioners, and thus, the Act is constitutional.
Supreme Court Decision 2005Du13414, South Korea, Supreme Court, 2006.
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.
Case on the House Head System, South Korea, Constitutional Court, 2005.
The petitioners requested the constitutional review of Civil Code provisions which establish the traditional "house head system" (Ho-jue jae-do) which holds that a household is formed around the male, and passes down only through direct male descendants serving as successive house heads. Under this system, male members are always recorded as the head of family in the Family Registry, and hold superior inheritance rights over female members. The Court held that the provisions which establish the "house head system" are unconstitutional. The Court held that this system is a "statutory device to form a family with male lineage at the center and perpetuate it to successive generations." Furthermore, the system discriminates both men and women because it determines the order of succession, and effects marital relations and parent-children relationships. The Court held that family relationships are changing, from authoritarian to democratic relationships, where "all family members are equally respected as individuals with dignity regardless of sex."
Supreme Court Decision 2005Meu1689, South Korea, Supreme Court, 2005.
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.
Use of Paternal Family Name Case, South Korea, Constitutional Court, 2005.
Petitioners applied for constitutional review of Article 781(1) of the Civil Code which stated that "a child shall follow the family name of the father." The Constitutional Court held that the civil code provision requiring a child to follow the father's family name is unconstitutional. The court held that "such unilateral requirement to follow the father's family name and disallow use of the mother's name violates individual dignity and sexual equality." In addition, the court held that "forcing one to use only his original father's family name and not allowing a name change infringes on the individual's right to personality." The concurring opinion stated that the civil code provision also results in discrimination against women, and found no legislative purpose for such discrimination. (Article 36(1) of the South Korean Constitution guarantees individual dignity in marriage and family.)
Disclosure of the Identity of Sex Offenders Convicted of Acquiring Sexual Favors from Minors in Exchange for Monetary Compensation, South Korea, Constitutional Court, 2003.
The petitioner, convicted of having sexual intercourse with a minor in exchange for payment, filed a lawsuit in the Seoul Administrative Court against the Commission on Youth Protection ("Commission"), requesting that the Commission revoke its decision to publicly disclose the petitioner's identity (name, age, birthdate, vocation and address, with summary of the crime). The Administrative Court thereafter filed a request to the Constitutional Court for constitutional review of the provisions of the Juvenile Sex Protection Act ("the Act"). The Constitutional Court held that the provisions of the Act which required the Commission to disclose the personal information (name, age, occupation, address) of the sex offenders convicted of purchasing sex from minors, is constitutional. The Court held that the Act intends to effect crime prevention, and to protect minors from sexual offenses, "thereby protecting their human rights and helping them to grow up to be sound members of society."