1/11/2016

The Law of Self-Defense in Korea: Criminal Law Basics in Korea

The affirmative defense of self-defense is available in Korea.  A court, in Korea, that rules that an act was perpetrated in self-defense must dismiss or mitigate the punishment of the defendant.

Korean Court
Typical Korean Court
Criminal Act Article 21 (Self-Defense)
(1) An act which is performed in order to prevent impending and unjust infringement of one's own or another person's legal interest shall not be punishable if there are reasonable grounds for that act.

(2) When a preventive act has exceed normal limits, the punishment may be mitigated or remitted according to the extenuating circumstances.

(3) In the case of the preceding paragraph, an act performed through fear, surprise, excitement, or confusion in the night or under other extraordinary circumstances shall not be punishable. 
Regrettably to many, Korea interprets the preceding Article 21 of Korea's Criminal Act very narrowly.  There is, only, one reported cases in the past 25 plus years where someone accused of murder has prevailed in a claim of self-defense.  The only case I can find is the notorious Kongneung-Dong Murder Case.  The case involved a break-in to a home that lead to the death of the burglar.  The burglar was armed and he killed one person in the apartment. 

The accused claimed, inter alia, that his act of killing the burglar was performed to "prevent impending and unjust infringement" (more injuries) of his "legal interest"(his life).  He claimed that his only means of protecting his life was his actions.  Additionally, the act of the burglar was at night.

The following charges still lead to charges by the police.  The prosecution decided not to indict.

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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. Sean's profile may be found at: Sean C. Hayes