Reporting and criminal complaint of criminal domestic violence
Reporting
- Any person who becomes aware of criminal domestic violence may report the fact to an investigative agency (for instance, a precinct or police station) (Article 4(1) of the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence).
- Additionally, where any of the following persons become aware of criminal domestic violence in the course of performing their duties, the person shall promptly report the fact to an investigative agency in the absence of just cause (Article 4(2) of the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence):
1. The employees and heads of institutions in charge of the education and protection of children;
2. The heads of medical institutions and medical personnel in charge of the treatment, etc. of children, senior citizens aged at least 60, or persons who lack normal judgment;
3. The employees and heads of welfare facilities for senior citizens prescribed in the Welfare of Senior Citizens Act, welfare facilities for children prescribed in the Child Welfare Act, and welfare facilities for disabled persons prescribed in the Act on Welfare of Persons with Disabilities;
4. The professional staff and head of a support center for multicultural families under the Multicultural Families Support Act;
5. International marriage brokers and their employees under the Marriage Brokers Business Management Act;
6. Crew members of rescue units and first-aid units under the Framework Act on Firefighting Services;
7. Public officials in exclusive charge of social welfare under the Social Welfare Services Act; or
8. The employees and heads of healthy home support centers referred to in the Framework Act on Healthy Families.
※ A person who falls under any one of the above who fails to report criminal domestic violence in the course of performing duties may be imposed an administrative fine of up to KRW 3 million (Article 66(1) of the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence).
- When any counselor and the head of a child counseling center prescribed in the Child Welfare Act, a domestic violence counseling center or shelter prescribed in the Act on the Prevention of Domestic Violence and Protection of Victims, or a counseling center for the victims of sexual violence or protection facility prescribed in the Sexual Violence Prevention and Victims Protection Act become aware of criminal domestic violence after counseling a victim or his or her legal representative, they shall promptly report such crime, in the absence of the victim’s explicit objections (Article 4(3) of the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence).
Criminal complaint
- A victim or the victim’s legal representative may file a complaint against a person who commits criminal domestic violence and a family member or a family member accomplice (hereinafter “a domestic violence offender”). Where the legal representative of the victim is an offender or the legal representative has committed criminal domestic violence in collaboration with the offender, a relative of the victim may file a complaint (Article 6(1) of the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence).
- A victim may file a complaint where the domestic violence offender is a lineal ascendant of the victim (father, mother, etc.) or a lineal ascendant of the victim’s spouse (parent-in-law, etc.) (Article 6(2) of the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence).
- Meanwhile, where a victim has no legal representative or relative who can file a complaint, a prosecutor must designate a person to file a complaint within 10 days if requested by an interested person (Article 6(3) of the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence).
Procedures for handling criminal domestic violence
The police stage
- Emergency measures
· Upon receipt of a report on any ongoing crime of domestic violence, a judicial police officer shall arrive at the scene of the crime without delay and take any of the following measures (Article 5 of the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence):
1. To restrain violence, isolate domestic violence offenders from victims, and investigate the crime;
2. To refer the victims to domestic violence counseling centers or shelters (limited to the cases where victims consent);
3. To refer the victims requiring emergency treatment to medical institutions; and
4. To notify that they are entitled to apply for ad hoc measures (Article 8 of the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence).
- Urgent ad hoc measures
· Notwithstanding emergency measures, where criminal domestic violence is likely to recur and ad hoc measures determined by a court are not available due to its urgency, a judicial police officer may take any of the following measures (hereinafter “urgent ad hoc measure”), either ex officio or upon the request of a victim or the victim’s legal representative (Articles 8-2(1) and 29(1)1, 2, and 3 of the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence):
√ Eviction, etc. from a room which the victim or family members live in or occupy, to isolate the offender from the victim;
√ A restraining order to stay at least 100 meters away from the victim or family members or their residence or place of work, etc.; or
√ A ban on approaching the victim or family members through telecommunications (subparagraph 1 of Article 2 of the Framework Act on Telecommunications).
· A judicial police officer who has taken urgent ad hoc measures must promptly prepare a written ad hoc measures decision including a summary of the crime and grounds necessitating urgent ad hoc measures, etc. (Article 8-2(2) and (3) of the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence)
- Case transfer
· A judicial public officer must promptly investigate criminal domestic violence and transfer the case to a prosecutor (former part of Article 7 of the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence).
The prosecutor stage
- Request for ad hoc measures
· Upon finding that criminal domestic violence is likely to recur, a prosecutor may request the following ad hoc measures to the court, either ex officio or upon request by a judicial public officer (Articles 8(1) and 29(1)1, 2, and 3 of the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence):
1. Eviction, etc. from a room, which the victim or family members live in or occupy, to isolate the offender from the victim;
2. A restraining order to stay at least 100 meters away from the victim or family members or their residence or place of work, etc.; or
3. A ban on approaching the victim or family members through telecommunications (subparagraph 1 of Article 2 of the Framework Act on Telecommunications).
· Upon finding that a domestic violence offender is likely to repeat such criminal domestic violence in violation of the above ad hoc measures, a prosecutor may request the court take ad hoc measures detaining the domestic violence offender in a holding cell or detention center of a state police agency, either ex officio or upon request by a judicial public officer (Article 8(2) of the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence).
- The request for ad hoc measures following up on a judicial public officer’s urgent ad hoc measures
· A judicial police officer who has taken urgent ad hoc measures must immediately apply for ad hoc measures to a prosecutor (see Article 8-3(1) of the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence).
· Upon receipt of such request from the judicial police officer, a prosecutor must file a request for an ad hoc measure with a court within 48 hours from the implementation of the urgent ad hoc measures, attaching a written decision on the urgent ad hoc measure (see Article 8-3(1) of the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence).
√ Where the prosecutor fails to make an ad hoc measure request or a court fails to determine ad hoc measures, the urgent ad hoc measures must be revoked without delay (Article 8-3(2) of the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence).
- Close of investigation, indictment, etc.
· The prosecutor processes the case as follows in consideration of the nature, motivation, and consequences of the criminal domestic violence, the personality and behavior of the domestic violence offender, etc.:
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Suspension of indictment on condition of counseling
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Where criminal domestic violence is found to have occurred but not to the extent of requiring criminal penalty, and if found necessary to correct the personality and behavior of the offender (Article 9-2 of the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence)
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Criminal indictment
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Where the case requires a criminal penalty (Article 246 of the Criminal Procedure Act) ※ A summary order including a fine, etc., may be requested depending on the severity of the case (Articles 448 and 449 of the Criminal Procedure Act).
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Handling as a home protection case
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In any of the following cases, when the prosecutor deems it appropriate in consideration of the nature, motivation, and consequences of a case, the personality and behavior of the domestic violence offender, etc., that it is appropriate to issue a protective order under the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence (Article 9 of the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence): 1. Where no complaint has been filed concerning criminal domestic violence, for which a complaint by the victim is necessary to indict, or such complaint has been revoked; 2. Where the victim expresses a wish not to prosecute the offender or retracts the previous wish to do so for criminal domestic violence, which cannot be prosecuted against the express will of the victim.
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Court stage: Handling of home protection cases
※ If the case is indicted, the courts proceed under the Criminal Procedure Act and impose penalties such as suspended penalties, fines, imprisonment, etc. Below, we will examine the family courts’ procedures for handling a home protection case under the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence.
- Investigation and hearings
· A judge may summon a domestic violence offender, victims, family members, or other witnesses to appear on a designated date, where deemed necessary for investigations and hearings. Where a domestic violence offender fails to comply with the summons without just cause, the judge may issue an accompaniment warrant (Article 24 of the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence).
· Hearings for a home protection case may be closed (Article 32 of the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence), and a decision on disposition must be made within 3 months after the date the case was transferred in the absence of special circumstances (Article 38 of the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence).
- Ad hoc measures
· A judge may take any of the following ad hoc measures against a domestic violence offender by ruling, where deemed necessary to facilitate the investigation and examination of a home protection case or for the protection of a victim (Article 29(1) of the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence):
1. Eviction, etc. from a room where the victim or family members live in or occupy to isolate the offender from the victim;
2. A restraining order to stay at least 100 meters away from the victim or family members or their residence or place of work, etc.;
3. A ban on approaching the victim or family members through telecommunications (subparagraph 1 of Article 2 of the Framework Act on Telecommunications).
4. Admission to a medical institution or other care center;
5. Confining the offender in a holding cell or detention center of any State police agency; or
6. Entrusting counseling to counseling centers, etc.
※ The ad hoc measure period for 1 to 3 above may not exceed 2 months (may be extended 2 times to a maximum of 6 months), or 1 month for 4 and 5 (may be extended once to a maximum of 2 months) (the main body of Article 29(5) of the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence).
- 불처분 결정
· The judge shall decide not to take any measure after hearing a home protection case in any of the following cases (Article 37(1) of the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence):
1. Where it is found a protective order cannot be issued or such disposition is unnecessary; or
2. When it is found inappropriate to handle the case as a home protection case, in consideration of its nature, motivation, and consequence, or the personality, behaviors, and habits of the domestic violence offender.
- Protective order
· A judge may rule to issue any of the following measures where a protective order is deemed necessary after a hearing (Article 40 of the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence):
1. Restrictions on a domestic violence offender's access to the victims or family members;
2. Restrictions on a domestic violence offender’s access to the victims or family members through telecommunications (subparagraph 1 of Article 2 of the Framework Act on Telecommunications);
3. If the domestic violence offender is the victim’s custodian, restrictions on the offender’s exercise of parental authority over the victim (in such case, the victim may be handed over to another custodian, family member, or an appropriate facility);
4. Order for community service or a lecture under the Act on Probation;
5. Probation under the Act on Probation;
6. Entrustment to a facility for custody established under the control of the Minister of Justice or to a protective facility determined by the Minister of Justice;
7. Entrustment of the treatment to a medical institution; or
8. Entrustment of counseling to a counseling center, etc.
※ The period for protective orders other than 4 above may not exceed 6 months (may be extended once for a maximum of 1 year), while the hours of community service or lecture for 4 above may not each exceed 200 hours (may be extended once for a maximum of 400 hours) (Articles 41 and 45 of the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence).
· An offender who receives a protective order under 1 to 3 above and fails to implement it is subject to imprisonment of up to 2 years, fines of up to KRW 20 million, or detention (Article 63(1)1 of the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence).
- Appeal and repeat appeal
· An appeal may be made to the collegiate division of the family court (meaning, the collegiate division of the district court in regions without family courts; same below) in the following circumstances (Article 49 of the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence):
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Grounds for appeal
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Appellant
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Where there has been any violation of statutes or regulations or erroneous determination of facts that could affect the decision, or where such a decision is significantly unfair regarding any ad hoc measure, a protective order, or the modification or revocation of a protective order
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A prosecutor, domestic violence offender, the legal representative or assistant
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The court’s decision not to take a measure is manifestly wrongful
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A prosecutor, victim, or legal representative
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· A decision to dismiss an appeal may only be further appealed to the Supreme Court where such a decision violates any statutes or regulations (Article 52(1) of the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence).
- Application for compensation
· A victim may apply for the following payment or compensation order to the court of first instance where the home protection case was pending; the compensation order may also be issued by the court ex officio without the victim’s request (Articles 56 and 57 of the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence):
1. Payment of money necessary to support victims or family members; or
2. Compensation for direct physical damage and medical expenses incurred in a home protection case.
· Any compensation order shall be issued at the same time when a decision on a protective order is made and may be declared as provisionally executable (Article 58 of the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence).
· The authentic copy of a protective order decision, which states a finalized compensation order or a compensation order with the pronouncement of provisional execution, shall have the same effect as the original judgment on civil cases with the executive force, with regard to the compulsory execution under the Civil Execution Act (Article 61(1) of the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence); meaning, the right can be vindicated by compulsory execution if the domestic violence offender does not implement the order.
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Reference: Domestic violence and civil damages
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A victim who suffered emotional distress from domestic violence may also bring a claim against the domestic violence offender for emotional distress in addition to a complaint under the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence (Articles 750 and 751 of the Civil Act).
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