Evolution of Korean Criminal Law: From Confucian Moralism and Japanese Colonial Legacies to a Human Rights-Oriented Approach

The Criminal Act of Korea was enacted in 1953, during the upheaval of the Korean War. Legislators aimed to modernize Korean criminal law and create a legal framework independent from Japanese influences, one that aligned with democratic values and human rights. However, due to limited resources and time, it was challenging to fully separate from elements of Japanese criminal law and Confucian moralism. As Korea has grown into a more liberal society, provisions rooted in the moral standards of past eras have increasingly diverged from the values of 21st-century citizens. Additionally, ambiguous and abstract language in defining certain offenses has, at times, led courts to restrict individual rights excessively. Yet, while it became evident that Koreans could not continue under an outdated criminal law, any comprehensive legislative overhaul appeared impractical.

In this context, it is notable that the Constitutional Court has actively reviewed the constitutionality of various criminal provisions, issuing numerous rulings to address these issues. The Supreme Court has also made efforts to interpret broadly-worded provisions in ways that respect diverse lifestyles and business practices. This presentation will discuss significant transformations and emerging trends led by Korea’s Constitutional Court and Supreme Court, and consider their implications for the future of Korean criminal law. 

Jinyeong Hong is Associate Professor of Criminal Law and Procedure at Seoul National University’s School of Law. She has degrees from Seoul National University and Harvard University. Before turning toward academia, she has spent a decade as a judge and was also dispatched for a year to the International Criminal Court.