What is the Legal Basis for Adultery Lawsuits in Korea After the Abolition of Criminal Adultery Laws?
Bo-ram Kim Managing Partner
Request a consultationOn February 26, 2015, the Constitutional Court of Korea ruled that the criminal adultery law was unconstitutional, effectively abolishing it from the legal system.
The Korean Constitutional Court determined that state intervention in personal sexual matters through criminal punishment infringed upon the "right to sexual self-determination and privacy".
This news dominated the front pages of newspapers for a while, reaching even those citizens who had no direct connection to adultery cases.
1. Legal Basis for Adultery Lawsuits in Korea
Given that the criminal adultery law has been deemed unconstitutional and abolished, what legal grounds do divorce attorneys cite when pursuing adultery lawsuits against third parties?
The legal basis can be found in Article 751 of the Civil Act, which provides for compensation for non-pecuniary damages, and in Supreme Court precedents.
Article 751 of the Civil Act [Compensation for Non-Pecuniary Damage] explicitly states that a person who causes harm to another's body, liberty, or inflicts mental distress is liable for damages, including non-material losses.
In essence, the Civil Act clearly stipulates that mental distress is a tort and is subject to compensation.
Supreme Court rulings have established that engaging in an affair with a married individual constitutes a tort that infringes upon the essence of marriage and causes mental distress to the spouse.
2. Key Supreme Court Ruling Extract
"When a third party engages in an improper relationship with one spouse, thereby infringing upon or obstructing the marital cohabitation that is essential to marriage, and violating the rights of the other spouse, causing mental distress, it principally constitutes a tort." (Supreme Court Decision 2013므2441, May 29, 2015)
The term "improper relationship" is broader than adultery, encompassing any unfaithful conduct that falls short of marital fidelity, even if it does not reach the level of adultery. The determination of impropriety depends on the specific circumstances, considering the degree and context of the actions. (Supreme Court Decisions 88므7, May 24, 1988; 92므68, November 10, 1992)
3. Implications
Based on these legal provisions and court rulings:
① Regardless of the abolition of criminal adultery laws in February 2015, individuals have the right to file adultery lawsuits against those who have caused mental distress through improper conduct.
② Adultery lawsuits can proceed even without direct evidence of physical relations.
This demonstrates that spouses are not left without recourse in cases of infidelity, despite the abolition of criminal adultery laws.
4. Which divorce attorney should you consult with in Korea?
The attorney that other lawyers trust to handle their own divorce cases.
The attorney that opposing lawyers refer their own familys to.
This is what Law Office Haeon is.
1) The Lawyers' Family Law attorney – Haeon
The fact that lawyers in Korea entrust their own or their family’s cases to Haeon is proof of our expertise. Even lawyers with no prior personal connection often come to us based on our established reputation within the legal community. We are the lawyers' family law attorney.
2) All Our Attorneys are Seasoned Professionals
Haeon's family law team consists entirely of senior attorneys who passed the bar exam between 2010-2012 and have years of experience practicing family law. This ensures our attorneys have the necessary expertise.
3) In-House CPA for Sophisticated Asset Valuation
Properly valuing a spouse's business interests is crucial in property division cases. However, only a handful of major law offices in Korea have in-house CPAs specializing in business valuation and forensic accounting - services that can cost millions or even tens of millions of won when retained separately.
Haeon has a consulting CPA who previously worked at a top-3 conglomerate of Korea and KPMG Accounting Firm. Our CPA partner provides sophisticated valuation, fraud investigation and transaction advisory services at a reasonable cost to protect our clients' interests.
4) English Interpreter Ready
At Haeon, we have an in-house interpreter who previously served as an English interpreter for the ROK Army and U.S. Army, working alongside them on joint operations. Even if your Korean language skills are limited, making it difficult to fully explain your situation, our interpreter ensures you can communicate seamlessly during your consultation. We bridge the language gap so you can get the legal guidance you need.
In times of crisis, everyone claims to be the best. But the truly superior attorney proves it through results. Haeon has the sophisticated expertise to deliver what you need.
