For the sixth time in the last 25 years a lower court in South Korea has requested that the Constitutional Court review the constitutionality of the adultery law.

Adultery is still a criminal offense in South Korea, and has been so for over 60 years. However, it is only in the last couple of decades that the criminality of what many see as a private matter has been questioned in the context of a modern democracy. 

The most public debate occurred five years ago when a famous actress challenged the constitutionality of the law. She failed in her appeal, although the court did come within one vote of overturning the statute. Thus it is anticipated that the court is likely to overturn the statute this time. Whether such an outcome is a wise one is now the debate in South Korea.

At the start of such debate is whether overturning a law that has been in effect for so long and that has been reviewed and upheld repeatedly is wise. One of the strongest bases of any legal system is consistency and stability. Courts in common law jurisdictions will seldom overrule a prior decision unless the decision has become demonstrably unworkable or unfair in application, is not being used or has become anachronistic due to societal changes.

Even more unlikely is a common law court finding a statute, previously found to be constitutional, to be unconstitutional. Although South Korea has a civil law system where prior court decisions have little precedential value the Constitutional Court should still consider consistency and stability in the law when making its decision.

Further, since the legal arguments both for and against the law remain the same and since the majority of the Korean populace continues to be in favor of the law, a different decision will be a clear signal that the court is engaging in unwarranted judicial activism.

For this time again, as it was five years ago, it is a woman who is challenging the constitutionality of the statute. And while the particulars of the case may differ slightly, the basic constitutional challenge remains the same. The challenge that the law violates fundamental human rights guaranteed in the South Korean constitution and by extension the human right to sexual freedom.

But is the crime of adultery really a violation of these rights or do the proponents for repeal confound the ideas of sexual freedom with the commitments made to a spouse and to the state when entering the legal status of marriage?

For there are many benefits to marriage and there are many reasons why two individuals consent to enter into a marriage. Personal reasons often include an anticipated lifelong companionship, a desire for children, and grandchildren, and the comfort and security that come with the shared responsibilities for maintaining a home.

However, there are also many economic and legal benefits which come from entering into a state-sanctioned marriage. Statistics show that two-earner households in South Korea do far better in almost every measure of income and socio-economic status.

This success is aided by the numerous tax benefits and other governmental monetary incentives that arise from the marital status, including economic payments for childcare and schooling for children of legitimate marriages. All of these benefits only come when the two individuals enter into what is, at its base, a contractual arrangement with the state.

So the real question is not whether the adultery law violates the human right to sexual freedom, but whether an individual who violates this state-sanctioned and monetarily supported institution should be allowed to retain the economic benefits of the marriage without penalty?

For an individual who desires to exercise their right to sexual freedom the divorce filing in South Korea is straightforward. Moreover once the divorce petition is filed, South Korean courts have held that sexual intercourse with a third party during the divorce proceeding is not punishable under the adultery law.

For those who want to have their cake and eat it too, perhaps the prosecutor service could consider that instead of punishing adultery, adulterous individuals should be tried for tax and welfare fraud. After all filing for social welfare benefits or claiming tax benefits due to marital status while committing adultery is arguably fraudulent.

And for those who feel criminal penalties are inappropriate for such behavior consider that economic penalties have the attendant downside of punishing the innocent spouse by draining the marital resources available for division during the divorce proceedings.

In the end a criminal penalty is the best way to punish the guilty individual without impacting unduly the innocent spouse. Hopefully the Constitutional Court will continue to uphold the adultery law and those who cannot control their baser instincts should consider consulting a divorce attorney before they head to the nearest love motel with their latest paramour.

By Daniel Fiedler

Daniel Fiedler has been a professor of law in South Korea since 2006 and a licensed attorney in California since 2000 and Arizona since 1998. ― Ed.