Criminal Defense Lawyer Stories
한국어繁體中文English日本語

Other Criminal Law

58 posts

Offenses Prosecutable Only Upon Complaint: Types, Categories, and the Criminal Complaint

An offense prosecutable only upon complaint is a crime that the prosecutor cannot indict unless the victim, a legal representative, or another person entitled to file a criminal complaint actually does so. In other words, prosecution can proceed only when the entitled person reports the crime to investigative authorities and demands punishment. Even if a crime has been committed, if it qualifies as an offense prosecutable only upon complaint and no complaint is filed, the prosecution is dismissed under Article 327, Item 2 of the Korean Criminal Procedure Act. These offenses are divided, depending on the relationship between the victim and the offender, into absolute and relative categories. An absolute offense prosecutable only upon complaint always requires a complaint from an entitled person, while a relative one requires a complaint because of a kinship relationship. The ordinary meaning of the term usually refers to the absolute type. In Korea, the offenses that fall into this category include..

Other Criminal Law

Illegal Recording of Others' Conversations and the Justifiable Act Defense

Illegal recording of others' conversations. Under the Protection of Communications Secrets Act, the act of 'recording a private (non-public) conversation between other persons' is illegal and subject to criminal punishment. A conversation between the parties to that conversation is regarded as an 'open conversation,' so secretly recording it while taking part is not punishable. This is because a participant's act of directly recording the contents of a conversation is understood as part of the conversation he or she is engaged in. However, when a third party who is not a participant in the conversation records it, this is regarded as the unlawful recording of a 'non-public conversation' and is subject to criminal punishment. These legal provisions exist to protect individual privacy and the confidentiality of conversations. Protection of Communications Secrets Act. Under Article 3 (Protection of the Secrecy of Communications and Conversations) of the Protection of Communications Secrets Act, no person may, except under the provisions of this Act, the Criminal Procedure Act, or the Military Court Act, ..

Other Criminal Law

Public Indecency: How Courts Judge Publicity and Obscenity

What "publicity" means: Publicity refers to a state in which an obscene act could be perceived by an unspecified number of people. It does not require that the act be directed at a specific small group; it is enough that there is a possibility that several people could perceive it. Even if no one actually witnessed the act, publicity is recognized as long as there was a possibility that many people could have perceived it. In this sense, publicity is judged by reference to the possibility of perception by the public. What "obscenity" means: Obscenity refers to conduct that stimulates the sexual desire of an ordinary person, arouses sexual excitement, and harms a normal sense of sexual shame, thereby running counter to sound sexual morals or decent notions of sexual propriety. In other words, it includes sexual acts or expressions that society cannot tolerate. The standard for obscenity is determined by whether, from the viewpoint of an ordinary person, the conduct stimulates sexual desire and thereby negatively...

Other Criminal Law

Fraud: Elements of the Offense, Sentencing Standards, and Default on Debt

What is fraud? Fraud is defined in Article 347 of the Korean Criminal Act. (1) A person who deceives another and thereby receives property or obtains pecuniary advantage shall be punished by imprisonment for up to 10 years or a criminal fine of up to KRW 20 million. <Amended Dec. 29, 1995> (2) The same punishment as in the preceding paragraph applies to a person who, by the method described in that paragraph, causes a third party to receive property or obtain pecuniary advantage. Types of fraud Fraud is classified by the method and the target. There are simple fraud, computer-related fraud, quasi-fraud, unauthorized use of facilities, unjust enrichment, habitual fraud, and more, and the sentence is determined by the monetary scale of the fraud. Elements of fraud 1. Deceptive act A deceptive act means conduct that leads the other party into a mistaken belief. 2. Disposition based on the mistaken belief Through the deceptive act, the other party is led into a mistaken belief, and the causal link to the resulting disposition is important..

Other Criminal Law

Defamation by Stating Facts, Defamation by Stating False Facts, and Sexual Harassment via Telecommunications Media

What is defamation? Defamation as defined in Article 307 of the Korean Criminal Act is as follows: (1) A person who defames another by publicly alleging facts shall be punished by imprisonment or imprisonment without labor for not more than two years or by a criminal fine not exceeding KRW 5 million. (2) A person who defames another by publicly alleging false facts shall be punished by imprisonment for not more than five years, suspension of qualifications for not more than ten years, or a criminal fine not exceeding KRW 10 million. What is honor? The concept of honor can be divided into an objective concept and a subjective concept. The objective concept encompasses internal honor and external honor, while the subjective concept refers to the feeling of honor. Internal honor is the inner value one objectively holds, independent of one's own or others' evaluation; external honor is the social evaluation of a person's human and social worth..

Other Criminal Law

Bodily Injury: Standards, Sentencing Guidelines, and Procedure

What is the offense of bodily injury? The offense of bodily injury is set out in Articles 257 and 258 of the Korean Criminal Act, as follows. Article 257 (Bodily Injury, Bodily Injury to Lineal Ascendant) (1) A person who inflicts bodily injury upon 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 or her own or his or 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 offense under the preceding two paragraphs shall be punished. Article 258 (Aggravated Bodily Injury, Aggravated Bodily Injury to Lineal Ascendant) (1) A person who inflicts bodily injury upon another and thereby endangers the victim's life shall be punished by imprisonment for not less than 1 year but not more than 10 years. (2) A person who, by inflicting bodily injury, causes another to suffer disability or an incurable or hard-to-cure disease shall be punished in the same manner as in the preceding paragraph. (3) Where a person commits the offense under the preceding two paragraphs against his or her own or his or her spouse's lineal ascendant...

Other Criminal Law

Elements of Embezzlement and Sentencing Guidelines

What is embezzlement? Embezzlement is defined in Article 355 of the Korean Criminal Act as follows. A person who, having custody of another's property, embezzles such property or refuses to return it shall be punished by imprisonment for not more than five years or a criminal fine not exceeding KRW 15 million. Objective elements: A person who has custody of another's property means someone who, under a relationship of entrustment, is in a position to control and dispose of property left in their keeping, either in fact or in law. In other words, it refers not to physical possession of the property but to a status or authority that allows its disposal. Embezzles such property or refuses to return it: this means consumption, removal, withdrawal, concealment, sale, lending, creating a mortgage, applying it toward repayment, and the like. Subjective elements: Intent. Because embezzlement is defined under the Criminal Act, as set out in Article 13, a person cannot be punished without intent. Article 13 (Intent): an act performed without recognition of the facts that constitute the elements of a crime..

Other Criminal Law

Elements of Criminal Insult, Cyber Insult, Gathering Evidence and Filing a Complaint

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 one 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 six 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 obj..

Other Criminal Law