Summary of law reform necessary to achieve full prohibition

Prohibition is still to be achieved in the home, penal system, alternative care settings and possibly schools.

There appears to be no confirmation in law of a “right” of parents to administer “reasonable” or “moderate” punishment on their children, but there is no explicit prohibition of all corporal punishment in childrearing. The near universal acceptance of a certain degree of violence in childrearing means that corporal punishment is typically not considered as violence or abuse. Realising the rights of the children to protection from all forms of violence requires prohibition in law of all forms of corporal punishment, however light. Explicit prohibition should be enacted of all forms of corporal punishment by all persons with responsibility for the care and upbringing of children.

We have been unable to establish whether the Education Law (2005) explicitly prohibits corporal punishment. Explicit prohibition should be enacted in relation to all education settings, including public and private schools, schools of a religious nature, full and part time institutions, etc.

In the penal system, the law should clearly state that “public education” measures for children convicted of an offence should not include corporal punishment.

Explicit prohibition should also be enacted in relation to disciplinary measures in all institutions accommodating children in conflict with the law and to all alternative care settings, including public and private day care, residential care, foster care, etc.

Current legality of corporal punishment

Home

Corporal punishment is lawful in the home.

Children have limited protection from violence and abuse under the Family Law (1990, amended 2004), the Criminal Law (1974, amended 2004) and the Law on Nursing and Upbringing of Children (1976).

Schools

According to the third/fourth state party report to the Committee on the Rights of the Child in 2007, the Education Law (2005) takes into account the principles of the Convention on the Rights of the Child, but we have been unable to establish whether or not it explicitly prohibits corporal punishment in schools. Corporal punishment is prohibited in schools by government policy. The Regulation on Primary and Senior Middle Schools states that education should be conducted by positive influence, explanation and persuasion, and related materials have been distributed by the Ministry of Education.

Penal system

Corporal punishment appears to be unlawful as a sentence for crime for young people under 18 years, but we have yet to confirm that it is not an element of the “public education” measures imposed on children aged 15-16 convicted of an offence (Criminal Law, article 49). Young people aged 17 seem to be subject to adult criminal sanctions under the Criminal Law, which include “reform through labour”.

Corporal punishment is unlawful as a disciplinary measure in penal institutions (information unconfirmed).

Alternative care

There is no explicit prohibition of corporal punishment in alternative care settings.

Prevalence research

None identified.

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“While noting the information in the State party report that the ‘living conditions at orphans’ nurseries, kindergartens and schools remarkably improved during the period under review’ (para. 69), the Committee expresses its concern at the significant number of children who are placed in institutions and that the living conditions in many of these institutions continue to be below internationally acceptable standards. The Committee is concerned that adequate and effective monitoring of the quality of these facilities is lacking, and that the placement of children in alternative care is frequently not decided with respect to the best interest of the child. The Committee is also concerned about the reported use of corporal punishment in alternative care institutions.

“The Committee recommends that the State party: ...

d) take strengthened measures to sensitize professionals working with children to the harm caused by corporal punishment and promote an alternative, non-violent forms of discipline, as foreseen in article 28, paragraph 2, of the Convention; ...

“The Committee notes that in cases of crimes committed by children between the age of 14 and 17, the child is subject to ‘public education measures’. In this regard, the Committee regrets the lack of information provided by the State party on these measures, specifically, how and by whom the decision is made to commit a child to these measures; what procedural guarantees exist; what types of sanctions are imposed as ‘public education measure’; their duration; and whether they fully respect the rights of the child as provided by the Convention.

“Furthermore, the Committee regrets that the State party has not developed a full-fledged juvenile justice system in compliance with the Convention and other relevant United Nations standards.

“The Committee reiterates its previous recommendation (CRC/C/15/Add.239, para. 65 (d)) to the State party to provide in its next periodic report detailed information on how the non-judicial approach of the State party conforms to the human rights safeguards enshrined in articles 37, 39 and 40 of the Convention and the nature and application of ‘public education measures’.

“The Committee also urges the State party to bring the system of juvenile justice, applicable to children aged between 14 and 18, fully in line with the Convention, in particular articles 37, 40 and 39, and with other United Nations standards in the field of juvenile justice, including the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Bejing Rules), the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), the United Nations Rules for the Protection of Juveniles Deprived of Their Liberty (the Havana Rules) and the Vienna Guidelines for Action on Children in the Criminal Justice System; and the Committee’s general comment No.10 (2007) on children's rights in juvenile justice. In this regard, the Committee recommends that the State party in particular: ...

f) ensure that punishment imposed, including ‘public education measures’, do not involve any form of corporal punishment; ...”
(January 2009, CRC/C/PRK/CO/4 Unedited Version, Concluding observations on third/fourth report, paras. 36, 37, 69, 70, 71 and 72)

“The Committee notes with satisfaction that some concerns and recommendations (CRC/C/15/Add.88) made upon the consideration of the State party’s initial report (CRC/C/3/Add.41) have been addressed through legislative measures and policies. However, recommendations regarding, inter alia, … corporal punishment (para.13) … have not been given sufficient follow-up. The Committee notes that these concerns and recommendations are reiterated in the present document.

“While welcoming the positive steps taken by the State party and the information that it has almost eliminated corporal punishment through, inter alia, public campaigns, the Committee remains concerned that owing to traditional customs, corporal punishment may still be practised and accepted in schools, families, and care institutions.

“The Committee encourages the State party to continue to reinforce its public awareness campaigns to promote positive, participatory and non-violent forms of discipline as an alternative to corporal punishment at all levels of society.”
(1 July 2004, CRC/C/15/Add.239, Concluding observations on second report, paras. 7, 36 and 37)

“The Committee is concerned that corporal punishment is still used, especially within the family environment and in institutions, and by the fact that no comprehensive strategy exists to eradicate this form of violence, in light of, inter alia, articles 3, 19 and 28 of the Convention.

“The Committee suggests that the State party take all appropriate measures, including of a legislative nature, to prevent and combat the use of corporal punishment, especially at home and in institutions. The Committee also suggests that awareness-raising campaigns be conducted to ensure that alternative forms of discipline are administered in a manner consistent with the child’s human dignity and in conformity with the Convention.”
(5 June 1998, CRC/C/15/Add.88, Concluding observations on initial report, paras. 13 and 26)