Criminal Code of South Korea (1953)

Introduction

The Criminal Code of the Republic of Korea (형법, Act No. 293) was enacted on September 18, 1953, and took effect on October 3, 1953. It is the primary penal statute, establishing the general principles of criminal liability, defining specific offenses, and prescribing punishments. The Code draws from German and Japanese criminal law traditions, emphasizing doctrinal precision and systematic organization. It is divided into two parts: General Provisions (Articles 1–86) and Specific Offenses (Articles 87–372).

General Provisions (Articles 1–86)

Principle of Legality

Article 1 codifies nullum crimen sine lege (no punishment without law):

• Prohibition of retroactive criminal laws (ex post facto)
• Prohibition of analogy (Analogieverbot)
• Requirement of clear and specific statutory language

Applicability

• Territorial jurisdiction: The Code applies to crimes committed within Korean territory (Article 2)
• Personal jurisdiction: Extends to Korean nationals for certain offenses abroad (Articles 3–5)
• Universal jurisdiction: Limited to crimes against the state and currency

Theories of Criminal Liability

• Intent (고의) : Required for most offenses; includes dolus directus, dolus indirectus, and dolus eventualis
• Negligence (과실) : Only punishable where specifically provided (Article 14)
• Causation: Condition theory (Bedingungstheorie) limited by adequate causation (Adäquanztheorie)

Justification and Excuse

• Self-defense (정당방위) : Reasonable force against imminent unlawful attack (Article 21)
• Necessity (긴급피난) : Act necessary to avoid imminent danger (Article 22)
• Consent: Where the victim’s consent is legally effective (Article 24)
• Mistake of law (법률의 착오) : Where the mistake is reasonable (Article 16)
• Mental incapacity (심신상실) : No criminal liability; diminished capacity reduces punishment (Article 10)

Inchoate Offenses

• Attempt (미수범) : Punishable as provided for each offense (Article 25)
• Preparation and conspiracy: Only punishable for serious offenses (Articles 28–29)

Complicity

• Principal: The person who commits the offense (Article 30)
• Instigator: A person who induces another to commit an offense (Article 31)
• Accessory: A person who aids another in committing an offense (Article 32)

Punishment

• Types: Death penalty, imprisonment (with or without labor), detention, minor fines, fines, confiscation (Article 41)
• Sentencing: Determined by statute with judicial discretion considering motive, method, result, and offender’s character

Specific Offenses (Articles 87–372)

Crimes Against the State (Articles 87–104)

• Insurrection, foreign aggression, treason, espionage
• Collaboration with anti-state organizations

Crimes Against Public Order (Articles 105–171)

• Riots, arson, explosion, obstruction of official duties
• Counterfeiting currency and securities

Crimes Against Persons (Articles 250–270)

• Homicide (murder, manslaughter, infanticide)
• Bodily injury and assault
• Kidnapping and unlawful confinement

Crimes Against Morality (Articles 241–250, 286–306)

• Rape, sexual assault, indecent acts
• Obscenity
• Adultery (decriminalized by Constitutional Court in 2015 — 2008Hun-Ba143)

Crimes Against Property (Articles 329–372)

• Theft, robbery, fraud, embezzlement, breach of trust
• Extortion, receiving stolen property

Special Criminal Statutes

The Criminal Code is supplemented by:

• Specific Economic Crimes Act: Enhanced penalties for high-value economic crimes
• Sexual Violence Punishment Act: Special provisions for sexual offenses
• Act on the Aggravated Punishment of Specific Crimes: Habitual offenders, organized crime

Constitutional Court Influence

The Constitutional Court has significantly shaped criminal law:

• Adultery: Decriminalized (2015)
• Abortion: Decriminalized (2019)
• Conscientious objection: Required alternative service (2018)
• National Security Act: Narrowed application to protect free expression

Conclusion

The Criminal Code of 1953 provides a comprehensive, systematic framework for criminal liability in South Korea. Rooted in German doctrinal traditions and shaped by Constitutional Court jurisprudence, the Code balances the need for public order with fundamental rights protections.