You may need a consultation if
- The police came during a fight with your spouse and told you to stay out of the house
- Your spouse reported you for assault, but you were hit too
- You pushed your father during an argument and were booked for assault on a lineal ascendant
- You received notice that your case was referred as a domestic protection case
- You are under a temporary 100-meter no-approach order but need to make contact about your child
- Your spouse says they don't want you punished, but the case is continuing
Relevant Laws
Act on Special Cases Concerning the Punishment of Domestic Violence (가정폭력범죄의 처벌 등에 관한 특례법) Article 2
Domestic violence crimes include assault, injury, threats, arrest and confinement, trespass, coercion, property damage, defamation and insult, among others, between spouses (including common-law spouses) or former spouses, lineal ascendants and descendants, stepparents and children, and relatives living together.
Articles 9, 40 and 41 of the same Act (Domestic Protection Cases and Protective Dispositions)
Considering the nature, motive and result of the case and the offender's character and conduct, and respecting the victim's wishes, the prosecutor can handle the case as a domestic protection case. The court can order restrictions on approach, restrictions on approach by telecommunications, restrictions on exercising parental authority, community service or an order to attend classes, probation, entrustment to custodial care, entrustment for treatment and entrustment for counseling. The period cannot exceed 6 months, and community service or classes cannot exceed 200 hours.
Articles 29 and 63 of the same Act (Temporary Measures and Failure to Comply)
As temporary measures, a judge can order separation such as removal from the home, no approach within 100 meters, no approach by telecommunications, entrustment to a medical institution, confinement in a police holding cell or detention center, and entrustment for counseling. Failing without good reason to comply with separation, no-approach or no-contact orders is punished by up to 1 year's imprisonment, a fine of up to KRW 10 million or short-term detention.
Statutes are summarized. The official Korean text is available at the Korea Law Information Center (law.go.kr).
From the police call-out to referral
Police who receive a report stop the violence, separate the offender and the victim and, if necessary, arrest the offender in the act. If there is a risk of recurrence and it is urgent, a judicial police officer can directly order emergency temporary measures such as removal from the home or no approach, and in that case temporary measures must be requested from the court within 48 hours (Articles 8-2 and 8-3).
The police promptly investigate domestic violence crimes, refer them to the prosecutor and can give an opinion on whether handling the case as a domestic protection case is appropriate (Article 7). That is why a notice of referral sometimes comes even after the police said the evidence was weak.
Domestic protection cases proceed differently from criminal trials
If the prosecutor sends the case as a domestic protection case, the family court (or the district court where there is no family court) investigates and holds hearings, then decides on a protective disposition (보호처분) or no disposition. Once a protective disposition becomes final, no prosecution can be brought again for the same facts (Article 16).
A protective disposition is not a criminal punishment, so it does not remain as a criminal record the way a fine or imprisonment does. However, if you fail to carry out a disposition such as community service or entrustment for counseling, it can be cancelled and the case sent back to the prosecutor (Article 46).
It may not end even if the victim does not want punishment
Simple assault and threats normally cannot be prosecuted if the victim does not want punishment, but even then the prosecutor can handle the case as a domestic protection case (Article 9(2)). Injury and special assault can be indicted regardless of the victim's wishes.
If the assaults were repeated and treated as habitual, the rule barring prosecution against the victim's wishes does not apply. The Supreme Court held that when someone is punished for habitual assault on a lineal ascendant, prosecution can be brought even against the victim's wishes (Supreme Court Decision 2017도10956, April 24, 2018).
During a temporary measure, decide on a channel for contact
Even if you need to make contact about taking your child to and from school, living expenses or belongings, contacting the person directly by a prohibited method violates the temporary measure (임시조치). First consider going through a lawyer or applying to the court to cancel or change the temporary measure (Article 29(10)). To challenge the decision, you must appeal within 7 days of being notified (Article 49).
Factors That Affect the Outcome
Factors that work against you
- · Repeated violence or violence in front of children
- · Use of a weapon or dangerous object
- · Violated a temporary measure or no-approach order
- · The victim strongly wants punishment
Factors that work in your favor
- · A one-time fight with circumstances on both sides
- · Started family counseling or treatment on your own
- · The victim does not want punishment and there are efforts to restore the relationship
- · A plan to prevent a recurrence, such as treatment for a drinking problem
How Jisan Law's Criminal Law Center Responds
- 1
Checking the measures
We check the scope and period of any emergency temporary measure or temporary measure and immediately set out what you must comply with.
- 2
Organizing the circumstances and materials
We organize how the fight happened, injuries on both sides, past reports and the time of the 112 emergency call.
- 3
Mock questioning and sitting in
We practice in advance for questions that may extend to family relationships and past fights, and go into the questioning with you.
- 4
Opinion on a domestic protection case
We submit a written opinion that a domestic protection case is more appropriate than a criminal trial, or one disputing the allegations.
- 5
Preparing for the hearing
If the case is referred as a domestic protection case, we gather records of completed counseling and the family's views and submit them at the hearing.
Lawyers handling these cases
Hansol Kim Managing Partner
Former prosecutor at the Incheon District Prosecutors' Office, the Ansan Branch of the Suwon District Prosecutors' Office and the Hongseong Branch of the Daejeon District Prosecutors' Office
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Bonwoo Koo Managing Partner
Economic criminal cases such as Capital Markets Act violations, investment fraud, embezzlement and breach of trust
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Frequently asked questions
If it goes as a domestic protection case, will there be no criminal record?
A protective disposition is not a criminal punishment, so it is not recorded as a criminal record the way a fine or prison sentence is. However, the record of having been investigated may be kept separately, and if you do not carry out the disposition, it can go back to being a criminal case.
My wife says she doesn't want me punished. Why was the case referred?
The Domestic Violence Punishment Act requires the police to refer the case to the prosecutor, and even if the victim does not want punishment, the prosecutor can handle it as a domestic protection case. The victim's wishes are something the prosecutor and the court must respect when deciding the outcome.
I received a protective disposition. What happens if I can't finish the community service?
The court, on its own or at the request of the prosecutor or others, can cancel the protective disposition and send the case back to the prosecutor or transfer it to the court that referred it. If something comes up, tell the probation office in advance and discuss a change.