A rational approach for Korea

Last year, a Vietnamese woman involved in a divorce from her South Korean husband left the country with their 13-month-old child and traveled back to Vietnam. Her husband pressed criminal charges against her for kidnapping and each successive court found her not guilty.

Eventually the case reached the South Korean Supreme Court and the court, in its first live broadcast, heard the case. At the time choosing such a case for the very first live broadcast was roundly criticized for feeding into the media narrative demonizing foreigners. 

However, on June 20, the Supreme Court issued its decision on the case and ruled that the woman had not committed any crime. In its ruling the court reached its conclusion by focusing on the needs of the child above those of the divorcing or divorced parties.

While many Western countries place the rights of parents above the needs of the children and strictly enforce kidnapping statutes against those who violate custody and visitation orders, the South Korean Supreme Court realized such an approach in South Korea would be unworkable.

This is because South Korea, despite its accession to the U.N. Convention on the Rights of the Child, still struggles to stop child abuse committed by biological parents. While the media focus on stranger abuse has resulted in strong regulations governing child care facilities, South Koreans, with their strong Confucian roots, believe that parents must be free to raise their children however they see fit.

Unfortunately this ideology often leaves too much room for psychological and physical abuse by biological parents. In the light of this cultural context the wisdom of the Supreme Court’s ruling becomes clear.

Thus, the Supreme Court limited the applicability of the kidnapping statutes solely to cases where the abducting parent uses violence, threats or illegal de facto force. These requirements allow a parent who sees their young child being repeatedly physically and psychologically abused by an ex-spouse to protect that child by separating the child from the abusive parent if they can do so without the use of violence or force.

Thus, when a young child is abandoned on the street by one parent, the other parent is free to rescue that child regardless of the court mediated agreement. Similarly if one parent is excessively cruel or abusive to a child the other parent is able to protect the child until the appropriate court processes can be conducted. However, any parent who uses force or violence in order to impose their will upon the child or the other parent will find themselves in criminal trouble.

This ability to protect a child respects the Confucian ideals that allow parents to raise their children without undue interference from the state yet simultaneously gives both parents the ability to supervise the behavior of the other parent. While such an approach is argued to be unnecessary in countries where the courts employ child psychologists and child protective services, in South Korea this decision effectively gives each parent these rights and replaces the need for such services.

In the end, the ruling of the court, while initially puzzling for western observers, is a substantial step forward for South Korea in protecting the rights of its children and of their parents.

Although parental abduction is often seen as a scourge to be eradicated in western countries, the Supreme Court of South Korea chose to craft a solution that considered both the needs of the child above that of a vengeful ex-spouse and the requirements that exist due to the cultural context of Confucianism.

The focus of the court on whether a child was subject to violence, force or other psychologically damaging treatment is extremely progressive for South Korea and bodes well for the future of the judiciary.

By Daniel Fiedler

Daniel Fiedler has been a professor of law in South Korea since 2006 and a licensed attorney in California since 2000 and Arizona since 1998. ― Ed.