Assault and battery in Korea: What is a crime of violence and what is not?

According to the Criminal Act, Article 260(1), “crime of violence” refers to an act of using violence against another person.

Article 260 (Crime of Violence)

(1) A person who uses violence against another shall be punished by imprisonment for not more than two years, a fine not exceeding five million won, detention, or a minor fine.

The Supreme Court construes “using violence against another” as “using force against the human body,” so it cannot be “crime of violence” when there isn’t any force used against the victim’s body. In the case where the defendant yelled at the victims from outside the door, and kicked the door for several times, demanding to open this door or he will kill everyone, the court decided that it could be “damage of property” (Article 366) or “intimidation” (Article 283) but cannot be “crime of violence” (Article 260) (83Do3186 delivered on February 14, 1984)

It is important to know that “using force against the human body” doesn’t always involve direct physical contact. For instance, If the perpetuator threw a stone or any object at the victim, it can still be “crime of violence” even if that object didn’t actually hit the victim. The Supreme Court decided that it can still be “crime of violence” if the defendant approached close to the victim and waved their hands and feet as if they were going to hit the victim, while yelling and swearing at the same time, even if there wasn’t any direct physical contact (89Do1406 delivered on February 13, 1990).

On the other hand, sometimes the action doesn’t get recognized as a “crime of violence” even if there was direct physical contact. These are the list of cases which the Supreme Court decided that it isn’t “crime of violence.”

• The victim grabbed the defendant’s both arms in order to start the argument. The defendant twisted his body and shook off the victim’s hands. (85Do1915 delivered on October 8, 1985)
• The victim started a fight against the defendant first, by pinching their face and knuckling with a fist, so the defendant forcibly embraced the victim to stop the fight. (76Do3758 delivered on February 8, 1977)
• The victim was ready to pick a fight, so the defendant grabbed and pulled the victim’s arm a couple times, asking them to don’t fight and let’s talk. (86Do1796 delivered on October 14, 1986)

Another important part of “crime of violence” is that it only includes the act of violence which does NOT cause injury. If the perpetuator causes injury to the victim by using violence, such as scars, bruises, broken bones or teeth, loss of consciousness, or even loss of hairs (of course, not just a strand of hair, but like shaving the victim’s whole head by force), that crime would NOT be punished as “crime of violence” but as “inflicting bodily injury” according to Article 257(1).

Article 257 (Inflicting Bodily Injury on Other or on Lineal Ascendant)

(1) A person who inflicts a bodily injury upon another shall be punished by imprisonment for not more than seven years or suspension of qualifications for not more than ten years or by a fine not exceeding ten million won.