"Introduction of Bigamy Crime, Protection of Monogamy System"

Published 20 Nov.2024 13:56(KST)

‘Constitution and Family Law’ Joint Academic Conference
Criminal Punishment Not Possible Due to Abolition of Adultery Law
Need to Establish Criminal Remedies

A sitting chief judge has argued that bigamy should be criminalized under the Criminal Act to allow for criminal punishment of individuals who commit extramarital affairs at the level of de facto marriage, such as maintaining a family with a mistress or a lover despite having a spouse, in order to protect monogamous marriage and family life guaranteed by the Constitution. Bigamy refers to the crime committed when a person who already has a wife or husband marries another person again. In 2015, the Constitutional Court ruled that the Criminal Act provision stipulating adultery was unconstitutional, making it impossible to criminally punish a spouse’s infidelity. As a result, the only legal remedy currently available is to claim civil damages.

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Jung Yong-shin (51, Judicial Research and Training Institute class 32), chief judge of the Seoul Family Court, gave a presentation titled “Consideration of Introducing Fault-Based Divorce with Protective Measures and Bigamy Crime: For Those Who Could Be Expelled but Could Not Escape” at the joint academic conference on “Constitution and Family Law” hosted by the Korean Constitutional Law Association and the Supreme Court’s Constitutional and Administrative Law Research Association on the 18th at the Supreme Court in Seocho-dong, Seocho-gu, Seoul.

Chief Judge Jung stated, “When a spouse commits infidelity or other misconduct, the greatest concern of the legally recognized spouse is that their children may not receive rightful inheritance in the future,” adding, “This is because the other party can exclude them and their children from inheritance through a will, and even if a claim for the return of statutory reserved portions is made, only up to half of the statutory inheritance share can be received.”

He continued, “Since the abolition of the adultery crime made it impossible to file criminal complaints against mistresses or lovers, there is currently no way to receive criminal judicial judgment. Furthermore, recently, cases of punishment have increased due to defamation charges during the process of collecting evidence of infidelity, or violations of the Act on Promotion of Information and Communications Network Utilization and Information Protection or the Personal Information Protection Act due to illegal acquisition of evidence,” he explained.

He emphasized, “In situations where a spouse maintains a so-called bigamous de facto marriage by living with a mistress or lover, if that spouse files for divorce, the other party tends to resist by citing fault-based divorce principles and eventually files a counterclaim. As a result, the other party realistically ends up being expelled through divorce.”

Most countries that have abolished adultery crimes, such as Germany, Austria, Switzerland, and Japan, have provisions for bigamy under their criminal laws. This serves to protect the monogamous marriage system. Some countries also recognize bigamy in registered same-sex domestic partnerships. Germany punishes marrying a third party with up to three years of imprisonment or a fine. Austria and Switzerland have similar provisions. Japan abolished adultery and newly established bigamy in its criminal law. In Japan, a person who marries again while having a spouse faces imprisonment of up to two years, and the other party involved is also punished.

The situation in the Anglo-American world is similar. The UK’s criminal law considers bigamy illegal. All U.S. states also recognize bigamy crimes. In California, bigamy can result in a fine of up to $10,000 or imprisonment for up to one year.

Chief Judge Jung said, “At the time the Criminal Act was enacted, a dual punishment adultery crime was adopted to prevent the bad custom of concubinage, and bigamy did not appear in the Criminal Act because it was considered redundant. When the Constitutional Court made a ‘simple unconstitutionality’ ruling on adultery in 2015 instead of a ‘provisional application of constitutional inconsistency,’ judicial remedies for those suffering from a spouse’s bigamous de facto marriage became unattainable.”

He added, “If bigamy is newly established under the Criminal Act, it can protect the monogamous marriage system guaranteed by the Constitution while safeguarding basic rights such as a spouse’s sexual self-determination and privacy. It can serve as a minimum safeguard to introduce fault-based divorce that prevents a person responsible for the breakdown of the marriage from filing for divorce.”

Additionally, Seung I-do (46, class 41), a professor at Konkuk University Law School, gave a presentation titled “Constitution and Family Law from the Perspective of Time: Focusing on the Guarantee of Basic Rights to Marriage and Family Life and the Right to Judicial Remedy.”

Ji Sung-woo, president of the Korean Constitutional Law Association, said, “As family forms and compositions become increasingly diverse, there is a growing global need for family law to reflect the changes of the times, and demands for related legal reforms are increasing. Many countries are actively discussing what reasonable norms can harmonize with constitutional principles of family and maternal protection.” He emphasized, “In principle, family law should be interpreted and amended in a direction that establishes new family forms and legal protections, but such normative changes must proceed within the scope socially acceptable and within the framework of the Constitution.”

Park Yeon-wook (56, class 23), president of the Supreme Court’s Constitutional and Administrative Law Research Association, said, “In rapidly changing modern society, family forms and functions are diversifying, and conflicts arise between the values pursued by the Constitution and the realities regulated by family law. Fundamental questions are being raised about whether the existing family law system is appropriate for issues such as recognition of various family forms including same-sex marriage and protection of economically vulnerable spouses in fault-based divorce.” He added, “Through discussions involving diverse academic perspectives and practical experiences, I hope our society can find ways to respect family diversity while pursuing individual happiness and social stability simultaneously.”