Bodily Injury
Bodily injury is defined under Article 257 and ,Article 258 of the Korean Criminal Act.
Article 257 (Bodily Injury, Bodily Injury on Lineal Ascendant) (1) A person who inflicts bodily injury on another shall be punished by imprisonment for not more than 7 years, suspension of qualifications for not more than 10 years, or a criminal fine not exceeding KRW 10 million. <Amended Dec. 29, 1995.>
(2) A person who commits the offense under paragraph 1 against his/her own or his/her spouse's lineal ascendant shall be punished by imprisonment for not more than 10 years or a criminal fine not exceeding KRW 15 million. <Amended Dec. 29, 1995.>
(3) An attempt to commit the offenses under the preceding 2 paragraphs shall be punished.
Article 258 (Aggravated Bodily Injury, Aggravated Bodily Injury on Lineal Ascendant) (1) A person who inflicts bodily injury on another and thereby endangers his/her life shall be punished by imprisonment for not less than 1 year but not more than 10 years.
(2) The same punishment as in the preceding paragraph shall apply to a person who, by inflicting bodily injury, causes another to suffer disability or an incurable or hard-to-cure illness.
(3) A person who commits the offenses under the preceding 2 paragraphs against his/her own or his/her spouse's lineal ascendant shall be punished by imprisonment for not less than 2 years but not more than 15 years. <Amended Jan. 6, 2016.>
What Counts as Bodily Injury Under the Offense of Bodily Injury
There is academic debate over how to define the injury element of the offense of bodily injury. The first view covers cases that impair the integrity of the body, and the second covers cases that impair physiological function. According to Supreme Court precedent, both of these are taken into account.
Injury for the purposes of the offense of bodily injury means impairing the integrity of the victim's body or causing an impairment of physiological function.
(Supreme Court Decision 2020Do5493, rendered Aug. 20, 2020)
Special Bodily Injury
Special bodily injury is defined under Article 258-2 of the Korean Criminal Act
Article 258-2 (Special Bodily Injury) (1) A person who commits the offense under paragraph 1 or 2 of Article 257 by displaying the collective power of a group or multitude, or while carrying a dangerous object, shall be punished by imprisonment for not less than 1 year but not more than 10 years.
(2) A person who commits the offense under Article 258 by displaying the collective power of a group or multitude, or while carrying a dangerous object, shall be punished by imprisonment for not less than 2 years but not more than 20 years.
(3) An attempt to commit the offense under paragraph 1 shall be punished.
In other words, if a person commits the offense of bodily injury by displaying the collective power of a group or multitude, or while carrying a dangerous object, special bodily injury is established.
Requirements for Special Bodily Injury
The requirements for special bodily injury are the requirements for bodily injury, whether a dangerous object is established as such, or a case of displaying the collective power of a group or multitude.
Requirements for Bodily Injury
The requirements for the offense of bodily injury are as follows.
- A human body
A human body refers to a living person. Accordingly, injuring an animal does not constitute the offense of bodily injury, and in the case of a fetus, the offense applies depending on the criteria for determining when it is treated as a person.
Interpreting the Criminal Act, which protects the legal interest of human life and bodily safety, it is reasonable to regard the starting point of a person's existence as the moment when delivery begins accompanied by regular labor pains (the so-called labor-pain theory or onset-of-delivery theory).
(Supreme Court Decision 2005Do3832, rendered Jun. 29, 2007) - Impairing the integrity of the body or causing an impairment of physiological function
The establishment of the offense of bodily injury requires intent to inflict injury, an act that harms the integrity of the body, and a causally connected injurious result arising therefrom. Therefore, in the offense of bodily injury, the act harming the integrity of the body and the location and degree of the resulting injury must be clearly established by evidence, and a finding of bodily injury without specifying the location of the injury is unlawful.
(Supreme Court Decision 82Do2588, rendered Dec. 28, 1982) - The method of inflicting injury includes not only tangible means but also intangible means
A case holding that where a victim, unable to withstand prolonged intimidation and assault, fainted and only regained consciousness inside an ambulance called by the perpetrators, there was bodily injury through impairment of physiological function, even though no external wound was inflicted.
(Supreme Court Decision 96Do2529, rendered Dec. 10, 1996)
Whether a Dangerous Object Is Established
Whether something qualifies as a dangerous object is applied very broadly. A dangerous object includes not only items ordinarily thought of as deadly weapons or blunt instruments, such as a knife, a saw, or a hammer, but also items used in everyday life, such as a cell phone, chopsticks, or a beverage bottle, which may be recognized as dangerous objects. However, whether something is deemed a dangerous object is determined in light of the circumstances at the time
Criteria for Determining a Dangerous Object
The criteria for determining a dangerous object are as follows:
1. Depending on the specific case, it must be an object such that, in light of social norms, using it could be recognized as something the other party or a third party would immediately perceive as dangerous.
2. A dangerous object must be a physical object. In other words, a part of a person's body is not deemed a dangerous object.
3. A dangerous object must be portable movable property. In other words, immovable property such as a utility pole or a wall is not deemed a dangerous object.
4. Dangerous objects include not only animals or physical means but also chemical substances.
5. Dangerous objects include not only items originally manufactured for killing or wounding but also items that, by their manner of use, can be used to kill or wound a person.
In other words, a dangerous object must be capable of killing or wounding a person by its manner of use, must be a portable object, and the circumstances must be such that, when the object is used, danger could be perceived under social norms.
For example, in cases involving a car, it may be deemed a dangerous object if it is large and moving fast, and not a dangerous object if it is small and moving slowly.
(Supreme Court Decision 2010Do10256) and (Supreme Court Decision 2007Do3520)
There is also a case in which a fire extinguisher was thrown but was not recognized as a dangerous object.
In that case, considering that the fire extinguisher was not thrown at a specific person and the victim sustained no injury, it was held not to be a dangerous object.
(Supreme Court Decision 2010Do930)
Cases of Displaying the Collective Power of a Group or Multitude
A case of displaying the collective power of a group or multitude refers to a case in which there are multiple perpetrators.
Special Bodily Injury and Special Assault
The difference between special bodily injury and special assault is determined by the level of harm to the victim, that is, whether the case amounts to special bodily injury or special assault.
The sentence for special assault is imprisonment for not more than 5 years or a criminal fine not exceeding KRW 10 million.
Special bodily injury, by contrast, carries only imprisonment for not less than 1 year but not more than 10 years, so whether a case is recognized as special bodily injury or special assault makes a very significant difference.
Special Bodily Injury and Bodily Injury
The difference between special bodily injury and bodily injury is whether the requirement of a dangerous object being established as such, or of displaying the collective power of a group or multitude, is satisfied.
Whether the collective power of a group or multitude was displayed is rarely in dispute, but whether a dangerous object is established is determined in light of the circumstances at the time. With the help of an attorney on this point, having a case recognized as bodily injury rather than special bodily injury can substantially reduce the sentence.
The offense of bodily injury allows for a criminal fine, whereas special bodily injury has no criminal fine and allows only imprisonment, which is likewise a very significant difference.
Therefore, where bodily injury, special bodily injury, or assault, or special assault is anticipated, it is advisable to consult a criminal defense attorney so as not to receive a heavier sentence than the offense one actually committed warrants.
