Feb 26, 2015

South Korea's Adultery Law found Unconstitutional by Constitutional Court of Korea - Let the Parties Begin

The Korean Constitutional Court ruled, today, in a 7-2 decision that the long-standing law banning adultery was unconstitutional.  The Korean adultery law allowed up to a two-year jail sentence.  

The Constitutional Court of Korea noted that "even if adultery should be condemned as an immoral act, state power should not intervene in an individuals' private lives."  The Court, also, noted that: "Considering the level of social criticism it is difficult to bring about the intended precautionary effects. In fact, the law has rather been used as a means of divorce for those who committed more faults yet wished to break the relationship, and, also, as a means of blackmailing erratic housewives."

The majority opinion released by the Court, also, went on to say that the law "violates individuals' freedom to choose a sexual partner and their right to privacy. Not only is the anti-adultery law gradually losing its place in the world, it no longer reflects our people's way of thinking." This was the fifth time the Court had looked at the constitutionality of the law.

The two-justice dissent noted that: “Adultery is an act that damages the marriage-based system and has a destructive impact on families. Therefore, it is not included in the scope of an individual’s sexual rights . . .. The abolishment of the adultery law ay lower the level of sexual morality and, thereby, accelerate the dissolution of the family system."

I would have loved to see more discussion of the power of the Court - not, simply, arguments that the law is "good" or "bad" law.  

What do you think? Some U.S. States still have adultery laws, however, these states do not enforce the laws. 
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Sean Hayes may be contacted at: SeanHayes@ipglegal.com.

Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty. Sean is ranked, for Korea, as one of only two non-Korean lawyers as a Top Attorney by AsiaLaw.