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We see too many Korean lawyers not proactively utilizing every tool legally available to regain physical custody of a child abducted by a parent to Korea, thus leading to delay and often negative results. In most cases, a helpful tool is to file a Hague Return Request and/or a Family Court case along with a criminal complaint against the abducting parent. IPG Legal is one of the most experienced law firms handling international child abduction issues and international family law issues for international families in Korea.
The Crime of Child Abduction in Korea
The following Korean Supreme Court case sheds light on the punishments available under Korean Law for parents who abduct children from a custodial parent. IPG Legal succeeded in having a court order the imprisonment of an abducting parent to a jail sentence for non-compliance with a child return order.
Supreme Court of Korea Abduction/Enticement of a Minor Case
The Supreme Court of Korea issued a landmark decision regarding the criminal offense of “enticement of a minor.” The case, which revolved around the actions of a Korean father during an ongoing divorce proceeding in a Korean court, has important implications for the protection of minors in cases of parental abduction and custody disputes and sheds light on how a parent attempting to regain physical custody should approach cases.
Issue
The central issue in this case was whether the Abducting Father’s actions of taking his two young children, aged one and two, from daycare without consulting their mother constituted the Korean criminal act of “enticement of a minor.”
Article 287 of Korean Criminal Act (Kidnapping or Abduction of Minors)
A person who obtains and maintains a minor under the control of his or hers or a third person by means of threat, use of force or other forms of coercion, or by means of fraud, deception or enticement shall be punished by imprisonment for not more than ten years.
Facts
- The Abducting Father and his Wife (“Mother”) during the time of the abduction were in the process of a divorce and custody fight.
- The Mother had primary custody of the two young children of the marriage
- In April 2022, the Abducting Father visited the daycare center where his children were enrolled and falsely told the daycare teacher that he was taking the children to see flowers with their mother. Without any prior agreement or consultation with the Mother, the Abducting Father removed the children from the daycare and left the premises with them.
- In addition to the charges of enticement of a minor, the Abducting Father was also indicted on charges of assault stemming from an incident in August 2021. The Abducting Father was accused of verbally abusing the Mother, pushing her, hitting her, and causing her injury.
- In the court of first instance, the court found the Abducting Father guilty of enticing his children from their mother’s custody and sentenced him to six months in prison. The court emphasized that Abducting Father’s actions undermined the Mother’s right to care for and protect her children, and as such, constituted a violation of the child protection laws.
- On appeal, the appellate court found the Abducting Father guilty of the charges but reduced his sentence to three months in prison. While the first trial had treated each individual act (assault and enticement of a minor) as separate offenses, the appellate court determined that the facts of the case, specifically the time, location, and nature of the events, constituted a singular act. As a result, the court treated the charges as a single, concurrent offense and reduced the jail sentence.
Supreme Court of Korea Decision
The Korean Supreme Court upheld the decision of the appellate court, affirming the three-month prison sentence for the Abducting Father. The Court further clarified the legal standard for “enticement of a minor” under Article 287 of the Korean Criminal Act, stating that such an offense occurs when a person uses deception or enticement to remove a minor from a protective or custodial relationship without the consent of the guardian.
In its ruling, the Supreme Court emphasized that the crime of enticement of a minor does not require physical force or violence. Rather, it focuses on the act of influencing or deceiving a minor, or the person responsible for their care, so that the child is placed under the de facto control of the perpetrator. In this case, the Abducting Father’s actions of removing the children from their daycare and taking them without the Mother’s consent were deemed to fall within this definition.
The Court further elaborated that a parent’s protective or custodial rights are paramount and must not be undermined by the unilateral actions of the other parent, especially when such actions violate the custodian’s rights. The Court, further, noted that in instances of divorce or separation, if one parent uses deceptive means to lure a child away from the other parent’s lawful care, it could indeed constitute enticement of a minor. This principle holds true unless there are extenuating circumstances justifying the parent’s actions.
The Court’s decision is significant as it reinforces the notion that both parents, irrespective of their marital status, must respect the custodial rights and duties of the other parent. The ruling makes it clear that, even in the context of a divorce or separation, the use of deception or manipulation to interfere with a child’s custody arrangement is a criminal act.
In light of the Supreme Court’s ruling, it is imperative for legal practitioners and individuals involved in family law matters in Korea to recognize the serious consequences that can arise from breaches of custodial rights.
by Sean Hayes
Sean Hayes is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty. Sean is ranked, for Korea, as one of only a few non-Korean lawyers as a Top Attorney by AsiaLaw. Sean is regularly quoted by leading international media outlets, including The Wall Street Journal, The New York Times, France 24, and Bloomberg. Sean Hayes works with the leading Korean Family Law attorney in Korea and highly rated former Korean court judges.
IPG Legal is consistently ranked a Top Dispute Resolution Law Firm for our litigation, arbitration, and mediation services, and IPG Legal is consistently rated a top-tier law firm in corporate law, litigation, arbitration, franchise law, distribution law, estate law, family law, employment & labor law, and criminal defense.
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