Summary of law reform necessary to achieve full prohibition

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

There appears to be no confirmation in legislation of a “right” of parents and guardian to inflict corporal punishment on their children, but legal provisions against violence and abuse are not interpreted as prohibiting all corporal punishment in childrearing. The near universal acceptance of corporal punishment as a method of “disciplining” children necessitates clarity in law that no kind or degree of such punishment is lawful or acceptable. Explicit prohibition should be enacted of all corporal punishment of children by all adults with authority over them.

The legal provisions allowing for the infliction of physical pain in disciplining school children (article 18 of the Act on Primary and Secondary Education and article 31 of its Enforcement Decree, and possibly the School Life Regulation) should be repealed, and explicit prohibition enacted of corporal punishment in all education settings, public and private.

Explicit prohibition of corporal punishment should be enacted in legislation applicable to all institutions accommodating children in conflict with the law and 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 Child Welfare Act (amended 2006), the Penal Code, the Special Act on Punishment of Domestic Violence (1998, amended 2002), the Act on Prevention of Domestic Violence and Victim Protection (1998, amended 2004), and the Constitution. As at October 2008, the Child Welfare Act was under review.

Schools

Corporal punishment is lawful in schools under article 18 of the Act on Primary and Secondary Education, which allows the head of a school to discipline students “as deemed necessary for education”. The Enforcement Decree for the Act provides for the use of “such disciplinary or admonitory methods as not causing physical pain to pupils except in cases unavoidable for the purpose of education” (article 31). In 2002, the National Human Rights Commission recommended prohibition of corporal punishment in schools, but the recommendation was not accepted.

As at 2002, draft School Life Regulations included a proposal by the Ministry of Education and Human Resources Development that corporal punishment must “take place at a separate place, accompanied by a third person, where the instrument of punishment must be a straight piece of wood which has a diameter not exceeding 1.5cm, and a length not exceeding 60cm.Corporal punishment must be restricted to buttocks (for boys) and thighs (for girls).The number of strikes per punishment must not exceed 10.” We have been unable to establish whether or not these regulations came into force.

Penal system

Corporal punishment is unlawful as a sentence for crime under the Penal Code, the Criminal Procedure Act and the Juvenile Act. The Constitution prohibits torture and cruel punishment (article 12).

Corporal punishment is unlawful as a disciplinary measure in penal institutions. The Training School Act (Juvenile Reformatory Act) does not include corporal punishment among permissible disciplinary measures (article 15). Other applicable legislation includes the Penal Administration Act (revised 1999), the Act on the Establishment and Management of a Private Prison System (2000) and the Rules of Disciplines and Punishments of Inmates, but we have no details of their provisions.

Alternative care

According to the Government’s written reply to the Committee on the Rights of the Child in 2003, corporal punishment is prohibited in care institutions, but we have been unable to verify this. It is not explicitly prohibited in other alternative care settings.

Prevalence research

Government research into corporal punishment at middle and high schools showed a decline in prevalence, with 6% experiencing it in 2006 compared with 40% in a similar survey by the Korean Teachers and Education Workers’ Union in 2000. The research surveyed 1,160 students at 40 schools, 533 parents and 262 teachers. When asked if teachers listened to the student’s side of the story before giving the punishment, 89% of teachers said “yes” while 88% of students and 92% of parents answered “no”. Corporal punishment is given when students do not obey school rules, e.g. not finishing homework or being late or absent from class. (Reported in The Korea Herald, 26 January 2007)

Large scale comparative research into the views and experiences of 3,322 children and 1,000 adults in 8 countries in Southeast Asia and the Pacific (Cambodia, Fiji, Hong Kong, Indonesia, Mongolia, Philippines, Republic of Korea and Viet Nam) was carried out by Save the Children in 2005. The research in Republic of Korea involved 152 children (69 boys, 83 girls) from urban areas and 175 adults (32 men and 143 women). Methods used included research diaries, drawings, body maps, attitude survey, sentence completion, and discussions. Physical punishments mentioned by children in Republic of Korea included slapping, whipping, beaten with a broomstick, punching, kicking, pinching, ear pulling. In terms of the settings in which children experienced punishment, the research found that in the home 97.4% of children experienced physical punishment, 3% emotional punishment, while in school 93.6% experienced physical punishment and 6% emotional. Punishment in the home comprised 61% of all punishments, followed by school, then after-school learning centres, playgrounds, and other locations (street, friends’ houses, welfare centres). Punishment is most commonly inflicted by parents (45%), teachers (24%) and other relatives (20%). In response to the statement “After I punish a child I feel unhappy”, 16.6% of adults disagreed, 65.1% agreed, and 18.3% had no opinion. (Beazley, H., S. Bessell, et al., 2006, What Children Say: Results of comparative research on the physical and emotional punishment of children in Southeast Asia and Pacific, 2005, Stockholm, Save the Children Sweden)

In a nationwide survey of 3,228 students conducted by the Korean Federation of Teachers Association in April 2003, 70% said that corporal punishment given by their teachers was fair but that it should be limited to severe cases of insubordination. Students said teachers should not abuse the right to punish students. (Reported in Joong Ang Daily, 14 May 2003)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee regrets that most recommendations in the concluding observations (CRC/C/15/Add.51), adopted following its consideration of the State party’s initial report (CRC/C/8/Add.21), have been insufficiently addressed, particularly those regarding:

d) the prohibition of all forms of corporal punishment (para. 22)….

“The Committee notes with great concern that corporal punishment is officially permitted in schools. The Committee is of the opinion that corporal punishment does not conform with the principles and provisions of the Convention, particularly since it constitutes a serious violation of the dignity of the child (see similar observations of the Committee on Economic, Social and Cultural Rights, E/C.12/1/Add.79, para. 36 [re UK]). The fact that the Ministry of Education guidelines leave the decision on whether to use corporal punishment in schools to the individual school administrators suggests that some forms of corporal punishment are acceptable and therefore undermines educational measures to promote positive, non-violent forms of discipline.

“The Committee recommends that the State party:

a) implement the recommendation of the National Human Rights Commission that the relevant legislation and regulations be amended to expressly prohibit corporal punishment in the home, schools and all other institutions;

b) carry out public education campaigns about the negative consequences of ill-treatment of children in order to change attitudes to corporal punishment, and promote positive, non-violent forms of discipline in schools and at home as an alternative to such punishment.”
(18 March 2003, CRC/C/15/Add.197, Concluding observations on second report, paras. 7 (d), 38 and 39)

“… With regard to child abuse and domestic violence, the Committee is concerned at the lack of preventive policies and of adequate reporting mechanisms. Abandonment of children, the high rate of child headed families and the persistence of corporal punishment, widely envisaged by parents and teachers as an educational measure, are other subjects of concern to the Committee.

“… The Committee particularly recommends that legislative measures be adopted with a view to … clearly prohibiting any form of corporal punishment….”
(13 February 1996, CRC/C/15/Add.51, Concluding observations on initial report, paras. 15 and 22)