Civil protection orders for victims of domestic violence are provided for in Chapter III of the 1997 Special Act for the Punishment of Domestic Violence. The family court may issues civil protection orders, having jurisdiction over the place for activities, residence or current place of a domestic violence offender and residence or current place of a victim; where no family court is established, the local court of the relevant region will have jurisdiction. Moreover, Article 55-2 sets out the types of civil protection orders that a judge may issue.
A judge may issue civil protection orders against a domestic violence offender at the request of a victim or legal representative. As defined in Article 2 of the Special Act for the Punishment of Domestic Violence, the term "victim" means a person who suffers direct damage from a crime of domestic violence (listed in Article 2.3).
The Prevention of Violence Act defines a "child" as a person who is under 18 years of age. Under the Prevention of Violence Act, child victims of domestic violence may be accommodated in shelters, which also offer therapy programs upon request of the victim(s) or their family. In addition, the Special Act on Punishment of Domestic Violence allows the judge to send victims to other parental guardians or relatives (see Article 40). Other laws having provisions for protecting children from violence include The Child Welfare Act, the Youth Protection Act and the Act on Protection of Youth from Sexual Exploitation. The Criminal Code also provides special protections for children in some cases of violence.
Article 55-2 of the Special Act for the Punishment of Domestic Violence stipulates that one type of civil protection order that a judge may issue against a domestic violence offender is the denial of access within 100 meters from the residences or places of work of victims or family members. In addition, Article 29 provides for ad hoc measures to be issued by the court to a domestic violence offender for the purpose of the smooth investigation and examination of a home protection case or for the protection of a victim, the denial of access within 100 meters from the residences or place of work of victims or family members. It should also be stated that Articles 5 and 8-2 grant judicial police officers the authority to impose a temporary separation of victims (as prescribed in Article 29) due to its urgency (see Section 5.1 on police procedures).
As stated before, Articles 29 and 55-4 prescribe ad hoc measures (a provisional order) to be issued ex officio or at the victim's request when there is a danger of domestic violence recurring and an immediate need for protection. Furthermore, Article 8-2 states that a judicial police officer may take any measure prescribed in Article 29, as an urgent ad hoc measure, when a crime of domestic violence is likely to reoccur and it is impossible to receive an ad hoc measure determined by a court due to its urgency.
Other measures, beyond the separation ones already mentioned, that are foreseen in Articles 29, 55-4 and 8-2 include:
- evacuation, etc., from a room, in which victims or family members live, or a room occupied thereby, to isolate the offender from the victims
- denial of access to victims or family members through telecommunications
- committing the offender to medical institutions or intermediate care centers
- confining the offender in a detention center or room of any state police station
Article 6 of the Special Act for the Punishment of Domestic Violence allows victims or their legal agents to file for a victim protection order. When the legal representative of the victim is an offender (e.g., children's cases) or he/she commits a crime of domestic violence in collaboration with the domestic violence offender, a relative of the victim may file a complaint. Furthermore, the indirect victim (e.g., the children) may file a complaint when the domestic violence offender is a lineal ascendant of the victim.
Yes. See answer to question (j).
Yes. The domestic violence offender's presence in court is only provided for when a judge is deciding whether to take measures under Article 29 of the Special Act for the Punishment of Domestic Violence. Notwithstanding the above, Article 24 prescribes that a judge may summon domestic violence offenders to appear on a designated date, when deemed necessary for investigations and examinations.
Yes. Articles 29, 40 and 55-2 of the Special Act for the Punishment of Domestic Violence explicitly mention "family members" as subjects to be protected through the measures listed in the aforementioned articles.
On the one hand, Article 55-3 of the Special Act for the Punishment of Domestic Violence states that the period of victim protection orders under Article 55-2 will not exceed six months. Exceptionally, the period may be extended by two months, ex officio, or by ruling on the request of a victim's legal representative. Article 55-3 also limits the overall civil protection order period, such that it cannot exceed two years by extension. On the other hand, measures prescribed in Article 29 (ad hoc measures) will not exceed two months (evacuation and denial of access measures) and one month (confining in detention center or committing to medical institutions measures). Finally, protection orders provided for in Article 40 will have a six-month maximum period (Article 41).
The US Department of State's Country Reports on Human Rights Practices indicate that in 2008, "the [Ministry of Justice] registered 11,048 cases of domestic violence and prosecuted 1,747 cases."[20]
According to information provided by the government of Korea to the UN Committee on Economic, Social and Cultural Rights in August 2009, the prosecution indicted 1,841 individuals for domestic violence crimes and requested the court for protective dispositions on a total of 4,833 individuals in 2008. The total number of those referred to the court procedure for domestic violence crimes was 6,674, accounting for 50% of all suspects of domestic violence.[21]
The NGO Korean Women's Association United (KWAU) is a network of several women's groups that works to protect women's human rights and eliminate all violence toward them. The KWAU has issued some reviews on domestic violence in Korea.[22]
This is not specified either in the Special Act for the Punishment of Domestic Violence or in the Prevention of Violence Act. The answer probably requires a remission to the Civil Procedure Act.
According to Article 24 of the Special Act for the Punishment of Domestic Violence, victims and family members may only be summoned to appear in court when deemed necessary for investigations and examinations.
Not specified either in the Special Act for the Punishment of Domestic Violence nor in the Prevention of Violence Act. The answer probably requires a remission to the Civil Procedure Act.
When a request for a victim protective order is made, the judge may determine whether to issue an ad hoc protective order, if deemed necessary for the protection of the victim.[23]
The Special Act for the Punishment of Domestic Violence allows the judge broad discretion in deciding on the granting of orders. The above can be inferred from the expressions found in the wording of the following articles:
- Article 29: "when deemed necessary for the smooth investigation and examination of a home protection case or for the protection of a victim"
- Article 40: "when deemed necessary"
- Article 55-2: "if deemed necessary for the protection of a victim"
This is not specified either in the Special Act for the Punishment of Domestic Violence nor in the Prevention of Violence Act. The answer probably requires a remission to the Civil Procedure Act. In this sense, it should be noted that Article 5 of the said act stipulates as a general rule that in order for a minor (person under 19 years old according to Article 4) to perform any juristic act, he/she must obtain the consent of his/her legal representative. However, within the meaning of the exception provided for in said article, it could be argued that a civil protection order or a protective order can be considered as a legal act the sole purpose of which is the acquisition of rights, in which case the child could act without intermediaries.
We should also point out that Article 55 of the Civil Procedure Act sets a limited litigation capacity for minors, thereby only permitting them to conduct litigation through legal representatives.
Article 56 of the Special Act for the Punishment of Domestic Violence recognizes the right of victims to apply under Article 57 for a compensation order to the court of first instance, in which the home protection case is pending. In this regard, Article 57 states that the court may issue an order to pay or compensate with cash either ex officio or upon request of a victim, when it issues a protection order in proceedings for examining home protection cases at first instance. The grounds for the compensation are as follows:
- cash necessary for the support of victims or family members
- compensation of material damage directly incurred in a home protection case and the loss of treatment expenses
Apparently, there is no separate civil process required. According to Article 58 of the Special Act for the Punishment of Domestic Violence, any compensation order will be issued simultaneously, when a decision of a protection order is made. In addition, Articles 213 (3), 215, 500 and 501 of the Civil Procedure Act will apply mutatis mutandis.