In this blog post, we examine the background behind the abolition of the adultery law in South Korean society and explore whether this decision was made to protect privacy and respect individual freedom, or whether it was an inevitable result of changing times.
On February 26, 2015, the Constitutional Court ruled that Article 241 of the Criminal Code, which criminalized adultery, was unconstitutional. This decision abolished the legal provision that imposed prison sentences on married individuals who committed adultery, marking a significant turning point in the history of South Korean law. In fact, this is not the first time the abolition of the adultery law has been debated. There have been a total of five Constitutional Court rulings since 1990, and with this latest decision, the crime of adultery has finally been consigned to history. So, under what circumstances did the crime of adultery emerge, and what social changes led to its eventual abolition?
Penal provisions regarding adultery have existed for so long that it is believed they were even present in the Eight Prohibitions of Gojoseon. In ancient society, adultery was viewed not merely as a moral transgression but as a serious crime that undermined family order and social discipline. In modern times, the Korean Empire codified the crime of adultery when it promulgated the Penal Code in 1905, and following the establishment of the Republic of Korea, a bill punishing both men and women for adultery—including married men—was passed in 1953. This serves as an example of how highly society at the time valued sexual morality and the institution of the family.
However, in 1990, the first constitutional review of the crime of adultery was held, and the Constitutional Court ruled that criminal punishment for adultery was necessary to uphold public morality, the institution of marriage, and the protection of family life. Nevertheless, social debate over the crime of adultery continued, and the controversy surrounding its abolition or retention never ceased. In particular, questions were raised as to whether the crime of adultery was still an effective legal mechanism in modern society.
Interestingly, the number of adultery cases prosecuted as crimes has steadily declined since 1999. According to statistics from the Supreme Prosecutors’ Office, the number of adultery cases, which stood at 5,717 in 1999, dropped to 1,564 in 2013—a decrease of 74%. This downward trend can be explained by several factors. First, adultery is a private criminal offense, meaning an investigation can only begin if the victimized spouse files a complaint directly. To prove adultery, conclusive evidence that the spouse had sexual relations with another person is required. Since this involves an investigative process that can infringe on an individual’s privacy, it is highly likely that many spouses hesitated to file a complaint.
Furthermore, despite the fact that modern technology has made it much easier to collect information on personal activities, the number of adultery cases is declining. This may be because, even though the divorce rate is steadily increasing and marital discord accounts for a significant portion of the causes, adultery no longer serves as the decisive factor in ending a marriage. In the past, adultery was viewed as a major cause of family breakdown, but in modern society, it has come to be perceived as a personal and private matter rather than being treated strictly in legal and social terms.
Another reason for the decline in adultery cases is that the use of terms like “whore” has virtually disappeared in modern society. In the past, acts of adultery were heavily condemned by society, and it was common to stigmatize those who committed them. However, while adultery is still considered an immoral act today, the culture of publicly punishing or stigmatizing adulterers has disappeared. This means that even though adultery still serves as a cause for divorce, it is no longer subject to social sanctions.
One reason adultery has been removed from the scope of social punishment is the growing respect for individual privacy and increased awareness of the limits of legal intervention. In modern society, individual freedom and the protection of privacy have become core values, and criticism has grown regarding legal institutions like the crime of adultery for excessively interfering in personal matters. Furthermore, changes in social perceptions regarding marriage and sexuality have also made it difficult to maintain the crime of adultery. As norms surrounding marriage and sexual relations have shifted toward greater openness and respect for diversity compared to the past, the crime of adultery began to be perceived as an anachronistic law.
Ultimately, the abolition of the crime of adultery can be seen as a natural progression resulting from social change. In accordance with the principle that laws must reflect societal changes, the crime of adultery was deemed a legal mechanism no longer necessary in modern society and was consequently abolished. This decision is not merely the removal of a single legal provision but an important example demonstrating how the law should respond to social change. Moving forward, the law must continue to reflect the changes of the times and evolve in line with social values and norms.
