Self-Defense in Korea | Can You Defend Yourself When Being Attacked?
One of our biggest worries when traveling or moving to a new country is safety. It’s natural to feel the need to look after oneself, but in many countries the laws may differ on who is in the wrong when it comes to self-defense. To avoid breaking the law in relation to self-defense, Seoul Law Group is here to guide you through this topic so you can travel and live in South Korea with total comfort.
Table of Contents
What is Self-Defense?
Self-defense is the right to prevent violence through the use of counteracting such force with your own actions. However, this definition can raise many questions. What is the level of self-defense one can use when looking after oneself? If one goes beyond that level, how is it seen by the law? What if the victim was the one who provoked the attack?
Self-defense laws can be more complicated than they seem. And while the South Korean courts have established articles to clearly define self-defense scenarios, judges often view a situation differently. Please read the following information carefully and contact Seoul Law Group if you have any further inquiries.
Self-Defense according to the Korean Law
Article 1 of the South Korean Constitution points out that the country is a democratic republic where the power comes from its people. With this in mind, we can understand that the right to self-defense is everyone’s right.
“Self-defense (정당방위)” is stipulated in Article 21(1) of South Korea’s Criminal Act (Part I: General Provisions). If the court rules that an act was perpetrated in self-defense, then the punishment of the defendant must be dismissed. The article states:
(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.
There are a few important things to note about self-defense, based on Article 21(1).
Firstly, the infringement should be “impending.” This means it cannot be self-defense if the infringement was already done in the past. For example, if a person is currently trying to break a window of your home, the infringement is seen as ‘pending’, so you can use force to stop them as self-defense. But If the person already broke the window and is running away from you, and if you run after them and use violence upon them, it is not seen as self-defense (Supreme Court Decision, 96Do241 delivered on April 9, 1996).
Please note that whether the infringement is “impending” or not is judged based on the time of infringement. For instance, if you put an electric shock device on your house to prevent thieves from breaking in, and the thief got injured by electrocution while breaking into your house, your action is self-defense. The electric shock device is designed to work only when the break-in happens, which means the infringement is “impending” when the device works.
Secondly, the infringement should be “unjust.” It cannot be self-defense if the infringement is not unjust. For example, if a police officer is trying to arrest you unjustly, you can use force to get out of their hands as a form of self-defense. But If the officer is trying to arrest you on legitimate terms, you should obey the police. (Supreme Court Decision, 99Do4341 delivered on July 4, 2000)
To be “unjust,” the infringement should not just be illegal but should amount to a crime. For instance, borrowing another person’s money and not paying it back is illegal but not a crime. So, if someone borrows your money and does not pay it back, and you steal their money to cover that debt, your action is not self-defense.
Also, if the infringement is provoked by the victim, then their actions are not recognized as self-defense or recognized only to a very limited extent. For instance, if you first tried to kill the victim, it is not self-defense for you to kill the victim even if the victim fought back.
Thirdly, there should be “reasonable grounds.” This is the most controversial factor when deciding whether an act constitutes self-defense. Regarding this issue, the Korean court has set out several criteria. The defense action should be an adequate means to immediately and effectively eliminate the infringement. Also, if there are several means available for defense, then you should choose the means that inflict the least loss on the other party.
Also, these “reasonable grounds” is judged much more strictly if the infringement is not very serious. For instance, there was a case where a woman tried to steal a few chestnuts. A man, who was the owner of the chestnut tree, beat the woman and injured her. His action was not recognized as self-defense because it lacked “reasonable grounds.” (Supreme Court Decision, 84Do1611 delivered on September 25, 1984)
For these kinds of cases, which satisfy “impending” and “unjust” infringement but lack “reasonable grounds,” Article 21(2) can be applied.
(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 exceeded normal limits, the punishment may be mitigated or remitted according to the extenuating circumstances.
“Excessive self-defense (과잉방위)” is a kind of a self-defense in which the defense act has exceeded normal limits. In this case, the punishment for the defendant does not get dismissed, but it may be mitigated or remitted according to the circumstances of the act.
When a person commits “excessive self-defense” but it was only because of fear, surprise, excitement, or confusion in the night, or other extraordinary circumstances, their punishment should be dismissed as if it is normal “self-defense.” This is based on Article 21(3).
(2) When a preventive act has exceeded 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.
For instance, there was a case where a man, his wife, and his niece were walking down the street late at night. The victim, heavily drunk, suddenly came out of nowhere and attacked the wife and niece, even when they tried to escape. When the victim knocked down the wife and tried to hit her with a stone, the man kicked the victim to protect his wife, killing the victim. The court recognized this man’s action as “excessive self-defense,” but decided not to punish him because it was caused by “fear, surprise, excitement, or confusion in the night.” (Supreme Court Decision, 73Do2380 delivered on February 26, 1974)
Self-Defense Case Study
Unfortunately, in reality, self-defense might at times not be seen as properly implemented, thereby labelling the act as a violent reciprocation worthy of punishment. In Korea, this is a regular occurrence, as well as in many other countries around the world. If the perpetrator is injured in the process of removing themselves from the situation, or is damaged by what the judge considers to be merciless aggression, the case can become a two-way assault case.
Especially, Korea has gained a reputation for regarding Article 21 with a very narrow focus. The court has not often taken Article 21 into much consideration and many cases of self-defense have been turned into two-way assault cases.
To understand this more clearly, we will provide some example cases in the following section. It is important to note that while this is a common outcome, it is not impossible to win a self-defense case in Korea.
1. Case Study 1
In 1964, when a woman was 18 years old, she was sentenced to 10 months in prison and two years probation for biting the tongue of a victim who kissed her against her will. Although the defendant claimed it was self-defense, her argument was not accepted, and she was declared guilty of “Aggravated Bodily Injury.” With the “Me Too” movement gaining traction in recent years, the case gathered national attention in 2021.
Thankfully, the court’s view on this case has changed since then. In a similar case in 1989, a completely different verdict was handed down. The victim was a man who assaulted a woman and kissed her against her will, then the woman bit off the victim’s tongue and severed it. The court declared the defendant “not guilty” because her action was self-defense to protect herself. (Supreme Court Decision, 89Do358 delivered on August 8, 1989)
2. Case Study 2
In 1991, the defendant, who had been suffering from domestic violence for a long time, killed the attacker. The defendant had been exposed to threats of murder on a regular basis for over a decade, and at the time when the crime happened, she was being beaten mercilessly while she was pregnant. Of course, the defendant claimed self-defense, but was nevertheless sentenced to three years during the first trial. Many felt that it was an opportunity to bring prejudice against housewives in Korea to the surface. The trial continued with the final outcome of three years in prison and five years probation. The story does have one positive outcome, as the case led to the formation of the Special Act on Domestic Violence in 1997.
Sadly, the court’s view on this case hasn’t been much changed since then. A similar case in 2001 saw the same outcome: the defendant was a long-time victim of domestic violence who killed the attacker to protect herself while being beaten. (Supreme Court Decision, 2001Do1089 delivered on May 15, 2001) Many Korean scholars have criticized the outcome of this case, arguing that this case should have been self-defense or at least excessive self-defense.
3. Case Study 3
There was a case where a police officer shot a victim in his chest, instantly killing him because he resisted with a knife. The action of the police officer was not recognized as self-defense because there were other options for subduing him without killing him, such as using a gas gun or shooting a non-vital body part such as a leg (Supreme Court Decision, 91Da19913 delivered on September 10, 1991).
4. Case Study 4
A brother beat his sister while her husband was watching, so a fight between the two men broke out. The brother was a large man while the husband was smaller by about 20kg. When the brother threw down the husband and straddled his chest, he pressed against his neck. The husband grabbed a fruit knife to stab the brother in the leg. The husband was charged with bodily injury, despite pleading self-defense (Supreme Court Decision, 2000Do228 delivered on March 28, 2000).
What To Do When Being Attacked in Korea
There are several actions you can take when you feel you are being attacked in South Korea.
Firstly, if possible, contact the police. You should not be on your own or ask for the help of strangers when facing a serious or potential threat. To contact the Korean police, dial 112.
Secondly, consider the “Duty to Retreat”. Many courts advocate that victims first make an attempt to avoid further confrontation before relying on violence. Your case will look stronger if you first make an attempt to escape the situation rather than applying force from the start.
Thirdly, contact your respective embassy. If you are a foreigner in Korea, your embassy is there to help you thrive and live comfortably in South Korea. Embassies have a duty to care for their citizens who are living and working in South Korea. Contact your embassy after an attack to see all available support options.
Lastly, contact a lawyer such as the Seoul Law Group. Lawyers in Korea are trained to deal with self-defense cases and have many years of experience navigating the tricky world of Korean courts. A lawyer will not only take control of your case, but make you feel safe in the process.
Additionally, if your attack has left you with mental health concerns, be sure to seek out the help of a therapist, psychologist, or doctor. Taking care of your mental health is just as important as your physical health.
It is important in the future to create healthy environments and conditions for victims to escape violence. Seoul Law Group firmly believes in clearly identifying who faces a threat, who made the preemptive attack, who controlled the situation, and to distinguish unilateral violence. It is our firm belief that society as a whole has a right to protect their lives, and that the cycle of victims being treated unfairly should not be ignored in future cases.
Yup, no one can disagree with your stance that we must abide by the legal definition of self-defense to avoid unnecessary punishments. I shall remind my niece about this once she finds an instructor for further guidance. If you must know, she’s keen on learning martial arts to defend herself in case she travels alone.
Thanks for sharing about your niece. If she ever travels to South Korea and finds herself in a difficult legal situation, please feel free to contact us at info@seoullawgroup.com. We are here to assist.