Constitutional Court says state should not intervene in people’s private lives

This article is more than 5 years old

This article is more than 5 years old

South Korea’s Constitutional Court has struck down a 60-year-old statute outlawing adultery under which violators faced up to two years in prison.



The nine-member bench ruled by seven to two that the 1953 law was unconstitutional.

“Even if adultery should be condemned as immoral, state power should not intervene in individuals’ private lives,” said presiding justice Park Han-Chul.

It was the fifth time the apex court had considered the constitutional legality of the legislation which had made South Korea one of the few non-Muslim countries to regard marital infidelity as a criminal act.

In the past six years, close to 5,500 people have been formerly arraigned on adultery charges - including nearly 900 in 2014.

But the numbers had been falling, with cases that end in prison terms increasingly rare.

Whereas 216 people were jailed under the law in 2004, that figure had dropped to 42 by 2008, and since then only 22 have found themselves behind bars, according to figures from the state prosecution office.

The downward trend was partly a reflection of changing societal trends in a country where rapid modernisation has frequently clashed with traditionally conservative norms.

“Public conceptions of individuals’ rights in their sexual lives have undergone changes,” Park said, as he delivered the court’s decision.

In April last year, South Korea blocked the newly launched Korean version of the global adultery hook-up site Ashley Madison, saying it threatened family values.

In the past adultery could only be prosecuted on complaint from an injured party, and any case was closed immediately if the plaintiff dropped the charge - a common occurrence that often involved a financial settlement.

The law was grounded in a belief that adultery challenged the social order and damaged families, but critics insisted it was an outdated piece of legislation that represented state overreach into people’s private lives.

The debate over its future simmered away for some time, bubbling over from time to time especially if a public figure fell foul of the statute.



Such was the case in 2008 when one of the country’s best-known actresses, Ok So-Ri, was given an eight-month suspended sentence for adultery.

Ok had unsuccessfully petitioned the Constitutional Court, arguing that the law amounted to a violation of her human rights in the name of revenge.

The court had previously deliberated the issue in 1990, 1993 and 2001, and in each case dismissed the effort to have it repealed.

In 2008, five of the justices deemed the law to be unconstitutional, arguing that adultery could be condemned on moral grounds but not as a criminal act.



The law was originally designed to protect the rights of women at a time when marriage afforded them few legal rights, with most having no independent income and divorce carrying enormous social stigma.

“But it has long lost that relevance,” said Kim Jung-Beom, a lawyer and specialist on family law, before the judgement.

“For a start, the number of female ‘offenders’ has increased, and in some ways the law has become a way of naming and shaming women,” Kim said.

He also noted that other laws now provided women with greater legal security in their marriages, and a fair division of assets in the event of divorce.

Defenders of the statute said its loss would encourage sexual depravity, an argument that Kim said had “not a shred of evidence” as support.