For decades, adultery has been a crime in Korea punishable by up to two years in jail but South Korea’s highest court has just struck down the law, a statute that critics said is anachronistic and infringes on personal freedom, sending shares of the country's biggest condom maker surging.
The law banning adultery had been enacted in 1953 to protect wives who were financially dependent on their husbands and had little recourse against cheating husbands in a male-dominated society where divorce was rare. More recently, supporters of the law have argued that it preserves conservative family values amid a surge of modernisation. But divorce rates and women’s economic and legal standing have soared in the decades since, leaving many to argue that the law outlived its usefulness.
"The law is unconstitutional as it infringes people's right to make their own decisions on sex and secrecy and freedom of their private life, violating the principle banning excessive enforcement under the constitution," said Seo Ki-seok, a constitutional court justice, reading an opinion representing five justices.
The presiding justice, Park Han-chul, said: “Public conceptions of individuals’ rights in their sexual lives have undergone changes.”
One dissenter, justice Ahn Chang-ho, said the vote would “spark a surge in debauchery”.
Seven members of the nine-judge panel deemed the law to be unconstitutional.
Shares in Unidus Corp, which produces lines of condoms called Long-Love, Fantasia and Real Touch, as well as “sensual lubricants” and latex medical products such as surgical gloves, soared to the 15 per cent daily limit gain on the country’s Kosdaq market after the ruling legalizing adultery.
Each year several thousand spouses file criminal adultery complaints in South Korea but it is rare for someone to be jailed partly because courts have demanded stronger proof that sexual intercourse occurred. According to prosecutors, no one was put behind bars last year although 892 were indicted on adultery charges. Charges are frequently dropped, as divorcing couples increasingly turn to civil courts and financial settlements to resolve their differences.
Judicial authorities have revisited the law five times since 1990, most recently in 2008, when the actress Ok So-ri admitted to having an affair with a singer, sparking a high-profile scandal; her husband, a radio announcer, demanded that she receive the full sentence. Ok petitioned the constitutional court, and five judges voted in her favour — one fewer than the threshold to have the law overturned. She was handed a suspended sentence, and did not spend time in jail.
Under the law, cases could be brought against people only by their spouses, and if a spouse chose to drop the complaint, the prosecutors could not continue.