Assault: Elements of the Offense and Penalties

What Is Assault

Assault is the crime of using physical force against another person's body, and it is set out in Article 260 of the Korean Criminal Act. The "force" referred to here does not necessarily mean swinging your fists or hitting someone. Grabbing a person by the collar, throwing an object, spitting, or cutting someone's hair—any act that applies force to the body, directly or indirectly—can be broadly recognized as assault.

In daily life, a physical scuffle that starts from a trivial dispute often escalates into an assault case. Because the scope of punishment is wider than people expect, it is important to understand the precise legal principles.

Elements of Assault

For assault to be established, first, there must be an exercise of physical force against another person's body. Even without direct physical contact, swinging a weapon in a confined space or hurling an object right next to someone can be assessed as an exercise of physical force.

Second, there must be intent to commit assault. It is enough to have the awareness and will to exercise physical force against the other person's body; intent to actually cause injury is not required. Where there is no intent—such as accidentally bumping into someone—assault is not established.

Penalties by Type of Assault

Simple assault under Article 260(1) of the Korean Criminal Act is punishable by imprisonment for up to two years, a criminal fine of up to KRW 5 million, detention (up to 30 days), or a minor fine. Assault on a lineal ascendant of oneself or one's spouse is treated more severely under Article 260(2) of the same Act, with imprisonment for up to five years or a criminal fine of up to KRW 7 million.

Where the assault is committed by displaying the collective force of a group or a crowd, or while carrying a dangerous object, it falls under special assault in Article 261 of the Korean Criminal Act and is punishable by imprisonment for up to five years or a criminal fine of up to KRW 10 million. Note that everyday items such as a bottle, a chair, or a golf club can be assessed as dangerous objects depending on how they are used.

If a person is injured as a result of the assault, the offense of assault causing bodily injury under Article 262 of the Korean Criminal Act applies and is punished in accordance with the provisions on bodily injury, which substantially raises the level of punishment.

Is It an Offense Not Prosecutable Against the Victim's Will?

Simple assault and assault on a lineal ascendant are offenses not prosecutable against the victim's will: if the victim expressly indicates that they do not wish to see the offender punished, no punishment can be imposed. For this reason, in simple assault cases an amicable settlement with the victim plays a decisive role in closing the case.

However, special assault and assault causing bodily injury are not offenses of this kind, so the investigation and punishment proceed as usual even if a settlement is reached. In these cases, a settlement is merely taken into account as a favorable factor in sentencing.

What to Watch Out for in Mutual Assault Cases

In a mutual assault case where both parties exchanged blows, even if you were struck first, self-defense is hard to establish if your act of striking back is assessed as crossing the line from defense into attack. Korean courts recognize self-defense only very restrictively when it comes to harmful acts committed during a fight.

Therefore, if you are booked for mutual assault, it is important to prove with concrete evidence whether you were one-sidedly assaulted and merely defended yourself passively, and what the degree and circumstances of the assault were. CCTV footage, witness statements, and medical certificates should be secured early on.

Why You Need the Help of a Criminal Defense Attorney

Even when the facts of assault cases look similar, the applicable law and the level of punishment vary greatly depending on the degree of physical force exercised, whether a dangerous object was involved, and whether bodily injury occurred. In addition, because the settlement strategy changes completely depending on whether the offense is one not prosecutable against the victim's will, the most important thing is to obtain legal advice from a criminal defense attorney early in the case and set the direction of your response.

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