The enactment of the Act on Punishment of the Crime of Stalking (the Stalking Punishment Act) in October 2021, followed by its amendment in July 2023, has resulted in a substantial increase in the volume of criminal trials, ex post facto approval for urgent emergency measures, and provisional measures cases of the Stalking Punishment Act handled by the court. This has led to the accumulation of related issues and practical know-hows. This report provides a comprehensive research on the principal legal issues that have arisen in the judiciary's practical application of the Stalking Punishment Act. This report aims to serve as a valuable resource for judiciary practice and proposes avenues for legislative enhancement.
Initially, the report provides an overview of stalking's distinctive characteristics and delineates the key provisions of the Stalking Punishment Act. Subsequently, it methodically examines the judiciary's handling of related cases through an analytical scrutiny from different perspectives, encompassing both statistical data and written judgments interpretations.
Through comparative legal research, the report examines the anti-stalking laws of the United States, the United Kingdom, Germany, and Japan, which had criminalized stalking before Korea did. It analyzes their interpretations of laws and judicial cases to be of help to interpret the Stalking Punishment Act and proposes directions for its improvement. Specifically, the report includes a detailed examination of 18 U.S.C §2261A, the Model Anti-Stalking Code, and California’s Penal Code §646.9 in the United States. It also explores the Protection from Harassment Act 1997 and the Stalking Protection Act 2019 in the United Kingdom. Both the US and the UK conceptualize stalking within the general concept of a ‘course of conduct’. The Model Anti-Stalking Code sets a benchmark for effective legislative and interpretative approaches, and the UK’s Stalking Protection Orders and Restraining Orders provide comprehensive protection to victims through a wide range of court orders. The German Criminal Code (StGB) §238 and the Law on Civil Law Protection against Acts of Violence and Stalking (Gewaltschutzgesetz), along with Japan’s Anti-Stalking Act and its various case laws applying it, are also reviewed. In light of the similarities between relevant German and Japanese laws and the Stalking Punishment Act, discussions, interpretations, and considerations regarding the actus reus, concurrent offenses, and other issues related to stalking in Germany and Japan hold significant importance for our practical application, as they can be referenced in our professional practice.
In the section on issues related to offenses under the Stalking Punishment Act, the report categorically typifies and extensively discusses various types of cases managed under judicial practice as regards to each element of the stalking crime, namely elements determining whether the act falls under Article 2(1), whether the act was committed against the other person's will, without good reason, causing anxiety or fear, being repeated or continuing and the mens rea, and a crime of failure to comply with a provisional measure, etc. The report also addresses issues related to concurrent offenses associated with stalking, as well as orders to attend an education program and related challenges. For the provisional measures aspect, the report first of all provides examples of the conclusion and reasons of the court ruling. It then proceeds to analyze both the procedural prerequisites and substantive issues that frequently emerge, with a particular focus on conducting hearings and assessing the ‘necessary’ requirement for a detention order.
The report reaches the conclusion by proposing a series of reformative measures. These encompass the incorporation of additional stalking behavior patterns into the Stalking Punishment Act, the expansion of protected individuals to include those in intimate relationships, the imposition of encreased penalties under specific circumstances, and the emphasis on the necessity of a mandatory education order. The report suggests proactively deploying electronic monitoring devices as a strategy to enhance the efficacy of provisional measures. It advocates the inclusion of a prohibiting order proscribing contact by post as urgent emergency measures and provisional measures. In addition, the report recommends the introduction of novel provisional measures, such as attending counseling programs for stalkers, and prohibiting the use of the victim's data via information and communications networks. Furthermore, it highlights the need for legislative amendments enabling victims to request extensions of the provisional measures period, the inclusion of pre-trial detention days in the principal punishment by provisional measures, the facilitation of the issuance of custody warrants for hearings, and granting lower courts the authority to render decisions in the appellate cases.