What Is Criminal Insult
Criminal insult is defined in Article 311 of the Korean Criminal Act as follows.
Article 311 (Insult) A person who publicly insults another shall be punished by imprisonment or imprisonment without labor for not more than 1 year, or by a criminal fine not exceeding KRW 2 million.
Criminal insult is an offense prosecutable only upon complaint, so no prosecution can be brought unless the victim files a criminal complaint.
In addition, a complaint cannot be filed once 6 months have passed from the day the offender becomes known, and a complaint cannot be withdrawn after the first-instance judgment has been pronounced.
Article 312 (Complaint and the Victim's Intent) (1) The offenses under Articles 308 and 311 may be prosecuted only upon complaint. <Amended on Dec. 29, 1995.>
(2) The offenses under Articles 307 and 309 may not be prosecuted against the victim's expressed intent. <Amended on Dec. 29, 1995.>
Elements of Criminal Insult
1. Publicity
Capable of being perceived by an unspecified number of people
2. Identifiability of the person
The object of criminal insult must be a person.
Where the insult is directed at a group, it is generally difficult to interpret its content as referring to a specific individual within that group. When criticism by way of a group designation is diluted by the time it reaches an individual member, and does not rise to the level of affecting the social reputation of each individual member, the principle is that criminal insult against each individual member is not established.
3. Insulting character
An insult refers to an abstract judgment or contemptuous expression that is capable of degrading a person's social reputation.
This means that no fact is stated.
If the expression in question does not degrade the social evaluation of a person's intrinsic worth, then how rude the expression is does not affect the assessment of its insulting character.
Difference Between Defamation and Criminal Insult
There are two types of defamation.
There is defamation by stating a fact and defamation by stating a false fact.
What the two have in common is that a fact is stated, regardless of whether it actually corresponds to objective reality.
Moreover, this is precisely what distinguishes insult from defamation.
When the sentencing for criminal insult is compared with that for defamation, defamation carries the heavier penalty.
Sentencing Guidelines for Criminal Insult
The sentencing guidelines for insult are as follows.
Cyber Insult
Online defamation is defined under the Act on Promotion of Information and Communications Network Utilization and Information Protection (정보통신망법), but insult committed online is not separately defined under that Act.
In other words, "cyber insult" is not a legal term.
Accordingly, if you are subjected to insulting content online, punishment may be possible as online defamation, defamation, or, depending on which elements are met, criminal insult.
Criminal Defense Attorney for Criminal Insult
Because criminal insult covers a broad range of conduct, even if you have been insulted you need to confirm whether the conduct meets the statutory elements.
In addition, because criminal insult is an offense prosecutable only upon complaint, an investigation will proceed only if the victim files a criminal complaint.
For that reason, reaching a settlement with the victim is important.
If a settlement does not go smoothly, accurate confirmation and a proper response are crucial in determining whether the case fits the elements of criminal insult, so consulting with an attorney is advisable.
What to Do When You Are Insulted Online
If you have been insulted online, or a dispute has escalated into heated words, it is important to stay calm and secure the evidence.
It is a good idea to take screenshots showing the standard time using the standard-time program of the Korea Research Institute of Standards and Science, or to make an audio recording.
If, in the course of an online argument, the other party discloses personal information that makes you identifiable, the element of identifiability shared by both defamation and criminal insult can be satisfied.
Moreover, even where personal details are not clearly stated, identifiability may still be established if the target can be identified through the totality of the available information.
How to File a Complaint for Criminal Insult
The way to file a complaint for criminal insult is to prepare and submit a written complaint.
There is no prescribed form for the complaint. The contents that should go into the complaint are as follows
1. The complainant's personal details
2. The accused's personal details
3. The charge you wish to bring(the purpose of the complaint)
4. The criminal facts and the harm you suffered as a result
5. Supporting evidence
6. A statement that you wish for the offender to be punished
If the description of the harm you suffered from the insult does not clearly set out the facts needed to determine whether the statutory elements are met, the complaint may be returned on the ground that criminal insult is not established. Therefore, consult a criminal defense attorney to obtain the outcome you want.
