Adultery Is No Longer an Affair of the State in South Korea
By CHOE SANG-HUNFEB

South Korea’s Constitutional Court on Thursday struck down a 62-year-old law that made adultery an offense punishable by up to two years in prison, citing the country’s changing sexual mores and a growing emphasis on individual rights.

“It has become difficult to say that there is a consensus on whether adultery should be punished as a criminal offense,” five of the court’s nine justices said in a joint opinion. “It should be left to the free will and love of people to decide whether to maintain marriage, and the matter should not be externally forced through a criminal code.”

In their opinion, the five justices also said they doubted that the law was still useful in preventing adultery. Instead, they said, it has often been used by spouses to force a divorce or by those outside the marriage to blackmail married women who have cheated on their husbands. (The stigma of adultery is greater for women, making it harder to blackmail men who have committed adultery.)

An estimated 53,000 South Koreans have been indicted under the law since the authorities began keeping count in 1985. But in recent years, it has been increasingly rare for defendants to go to prison, in part because courts have demanded stronger proof that sexual intercourse occurred. In many cases, police officers, tipped off by a spouse, have raided motel rooms.

Additionally, more plaintiffs have been dropping charges after reaching financial settlements with their spouses.

The adultery law was adopted in 1953, with the stated purpose of protecting women who had little recourse against cheating husbands in a male-dominated society. But divorce rates and women’s economic and legal standing have soared in the decades since, leaving many to argue that the law outlived its usefulness.

Others, however, considered the ability to open an adultery case a necessary option for wronged wives in a society that, despite its rapid change, is still largely male-centered.

Under the law, cases could be brought against people only by their spouses, and if a spouse chose to drop the complaint, the prosecutors could not continue.

The law had been challenged four times before at the Constitutional Court since 1990, always unsuccessfully. In the last attempt, in 2008 — in a case brought by a popular actress, Ok So-ri, whose husband had pressed a criminal complaint against her — the justices came within one vote of striking the law down.

On Thursday, two other justices voted to declare the law unconstitutional for other reasons; one suggested that adultery should be punished, but not with a prison term. A two-thirds majority was required to strike down the law.

The remaining two justices voted to uphold the law, warning that abolishing it could lead to “disorder in sexual morality,” encourage extramarital affairs and undermine family life.

Three major women’s groups in South Korea supported the court’s decision to abolish what they called “an ineffectual law.” But its abolishment “doesn’t remove moral and ethical responsibility,” they said in a joint statement.

Anh Il-hwan, an official with the Ministry of Gender Equality, said on Thursday that the ministry respected the court’s ruling. “However, we need to prepare measures to protect the women victimized by adultery and will deliberate with relevant bodies to do so,” he said.

Sungkyunkwan, an organization of Korean Confucianists that had championed the law, called the ruling “deplorable” and said that people should be ashamed of adultery.

Share prices for a leading condom manufacturer, Unidus, rose by nearly 15 percent on Thursday, and shares of Hyundai Pharmaceutical, which markets so-called morning-after birth control pills, rose by 9.7 percent, gains that stock market analysts linked to the ruling.

According to South Korean news media, analysts linked the rise of those share prices to the ruling because they began climbing as soon as the news was reported. Analysts said investors acted on the belief that the ruling might encourage extramarital affairs and use of condoms.

南韓通姦除罪 保險套股漲停鎖死

南韓憲法法院廿六日以七票對二票裁定，國家以刑法處罰通姦的規定違憲，侵犯國民基本權利，施行六十二年的通姦罪從此走入歷史。

刑法制訂通姦罪的大多是伊斯蘭國家。許多歐美國家將通姦除罪化，主要理由包括刑罰無法嚇阻通姦行為，且此類家庭糾紛循民事賠償管道解決即可。違憲裁定出爐後，南韓官方的聯合通訊社特別提到，北韓與台灣是東亞少數仍以刑法處罰通姦的國家。

南韓刑法第二四一條規定，犯通姦罪者最高處二年徒刑。憲法法院自1990年起舉行過四次通姦罪的違憲審查，第一次只有兩位大法官認為違憲，上次是2008年，共有五位大法官認為違憲，但都未能到達九位大法官中三分之二，也就是六票認為違憲的門檻。

憲法法院院長朴漢徹等七位大法官表示，通姦罪侵犯國民在性方面的自主權和私生活的隱私及自由，以徒刑懲罰犯罪性質不同的各種通姦行為，違反比例原則。另外兩位大法官認為，通姦罪維護善良的性道德，發揮保障婚姻和家庭制度的效果，因此提出通姦罪合憲的不同意見書。

違憲裁定出爐後，通姦罪條文即刻失效。隨著社會風氣變遷，自1985年迄今，南韓將近有五萬三千人因通姦罪被起訴，但很少人坐牢。

違憲裁決公布後，南韓保險套製造商Unidus股價立刻大漲百分之十五，漲停鎖死到收盤。

原文參照：
http://www.nytimes.com/2015/02/27/world/asia/south-korea-strikes-down-adultery-law.html

紐約時報中文版翻譯：
http://cn.nytimes.com/asia-pacific/20150227/c27korea/zh-hant/

2015-02-27．聯合報．A1．要聞．編譯張佑生