THE STATE OF MODERN SOUTH KOREAN ANIMAL CRUELTY LAW: AN OVERVIEW WITH COMPARISON TO RELEVANT UNITED STATES AND SWISS LAW AND THE FUTURE.

• Author: Alberro, Andrew

INTRODUCTION

On April 21, 2012 a picture surfaced on the internet showing a beagle dog tied to the back of a Hyundai Equus. (1) The dog was disemboweled, having died from being dragged behind the car at high speeds along a highway in Seoul, South Korea. (2) Upon investigation, the owner claimed that the dog's death was an accident, (3) and police did not press charges due to insufficient evidence of intentional harm. (4) Many South Koreans were outraged at the lack of repercussions for the car owner, (5) and the event caused heated discussion on the effectivity of the Animal Cruelty Provision of the Animal Protection Act. (6)

The 'Devil's Equus' incident, as it became known, would not be the first or last time this happened in South Korea. 'Devil's Equus 2', (7) '3', (8) and 'Devil's Truck' (9) are just a few more examples of similar incidents following the original, that all ended with similar results. Acts of animal cruelty including hoarding, physical abuse, and neglect often go unpunished in South Korea due to a combination of the vague language of the law and a lack of officials willing to enforce it. (10) Numerous viral incidents of animal cruelty (11) have caused wide outrage and criticism of the state of current animal protection law in South Korea and in particular its enforcement.

South Korean animal cruelty laws have also faced criticism internationally. Puppy mills and the dog and cat meat trade in particular have caused South Korean animal cruelty law to incur intense global scrutiny. (12) Recently, a United States-based international animal rights welfare organization, World Animal Protection, (13) ranked South Korean animal cruelty protection law as an overall D on their A to G scale. (14) The organization noted that while South Korea's Animal Protection Act offers anti-cruelty protections and enforcement mechanisms in the form of fines and imprisonment, only some animals are classified as "protected" and there is a lack of strong deterrents. (15)

Incidents such as these make clear that while South Korea has made efforts to combat animal cruelty through its Animal Protection Act, there remains a need for enhanced protections and more effective enforcement.

This note is primarily focused on an examination of South Korea's Animal Protection Act and its limitations in preventing animal cruelty. To that end, the note will briefly discuss the history of South Korea, its legal system, and the development of the first animal cruelty law. For purposes of comparison, an overview of United States and Swiss animal protection legislation will be provided followed by a comparison of their enforcement tactics. Following the international comparisons, there will be an examination of the effect of South Korean media sources, animal activism and public opinion on its animal cruelty law. Finally, the note will discuss proposed changes and recommendations for stronger animal cruelty legislation and enforcement.

1. HISTORY OF KOREAN ANIMAL LAW

   1. A Brief History of Korea

      A basic understanding of the history of South Korea is important in examining the development of its animal law. The Korean peninsula has been inhabited since approximately 10,000 BCE. (16) 57 BCE saw the formation of the kingdom system, which led to the dynasty system in 668 CE (17) which would last until Japanese Colonial Rule in 1910. (18) Historically, the peninsula was ruled by a monarch who was assisted by government appointed "administrative officials." (19) These officials would govern the provinces "with the aid of local tribe leaders." (20) As will be discussed later in the note, this framework of governance would influence and shape that of the modern Republic of Korea.

      The Korean system of government was dissolved and the territory was annexed as a colony of Japan from the years 1910 to 1945. (21) In mere decades, the area known as the hermit kingdom became the second most industrialized region in Asia following Japan. (22) Following the defeat of the Japanese in World War II in 1945, Korea was split into a USSR-backed north and United States-backed south along the 38th parallel. (23) The North's invasion of the South in 1950 started the three-year-long Korean War which would end in the formation of a divided North and South Korea. (24)

      Following the destructive Korean War, which decimated the infrastructure and economy, industrialization rapidly took place over a miraculously short period of time from 1960 to 1985, comparatively much later than the majority of the West. (25) South Korea quickly modernized under the authoritarian state-led industrialization methods of regimes lead by Park Chung-Hee and later Chun Doo-Hwan. (26) In contrast, the United States and Swiss periods of industrialization and rise to global economic powerhouse status occurred decades earlier. The U.S. "underwent [its]... [industrial] transformation" in the late 19th century, (27) becoming an economic world-powerhouse by the year 1890. (28) Switzerland industrialized even earlier than the United States, with factories and machines becoming widespread by the early 19th century, (29) and by the year "1850 [the country] had become the second most industrialized country in Europe after Great Britain." (30) The Korea of today is a democratic nation "with a booming economy thriving on electronic products, machinery and transport equipment." (31)

   2. Perception of Animals in Korean History

      Like many other countries around the globe, animals have played both a utilitarian and cultural role in Korean history. Since ancient times, Koreans have held traditional beliefs associated with animals, believing that the appearance of certain animals brought about good fortune, protection, and happiness. (32) Animals also played recurring roles in Korean folklore, (33) with the most prominent example being the King Dangun creation myth. (34)

      In part due to their mystical beliefs about them, in Korea animals were traditionally not seen as pets or companions, but rather for their utilitarian purpose as farm commodities, being "workers or food." (35) Up until the late 20th century, dogs were viewed as farm utilities for their roles in household protection and vermin extermination. (36) Cats and other animals were sometimes seen as bad omens and treated as pests. (37)

      The late introduction of the First World concept of animals as sentient beings can be attributed to the comparatively recent globalization of Korea in the early 20th century. With Japanese Colonization, World War 11, the Korean War and subsequent impoverishment, animals were understandably not at the forefront of Korean minds during this period. Economic and political instability which led to prioritizing human survival and development coupled with traditional views of animals as commodities, (38) made it so the idea of animals as living creatures in need of protection or owning them as pets is a relatively new phenomenon in South Korea. (39) However, the changes in the country's economic and political situation of the mid-to-late 20th century has brought with it a change in views on owning pets and animal rights activism. (40) In 2015, the South Korean Farm Ministry reported the number of pet owners in the country reached 4.57 million, representing "21.8 percent of... total households[.]" (41) Another government report in 2017 showed that one in five South Koreans own pets. (42)

   3. The Development of Modern Korean Lawmaking

      Before the period of Japanese Colonial Rule, Korean law took the form of a penal state law model. (43) Korea "had a highly advanced and comprehensive codified legal system" and state codes including "penal proscriptions and administrative regulations." (44) In contrast with early western law which consisted of "civil law rules enforced through adjudication", the Korean legal system did not have the concept of private law, and was "created and imposed by the king" and then enforced by the states. (45)

      Following colonization by Japan, Korea was forced to adopt Japan's colonial legal system. (46) This was Korea's first experience with the concept of codified custom and a civil law system. (47) Following the defeat of the Japanese in World War II, the Republic of Korea established its first Constitution in 1948 and the legal system was "institutionalized." (48) Influenced by Japan and the United States, the modern South Korean "legal system absorbed and modified... features of the European civil law system, Anglo-American law system, and Korean customary laws". (49)

      South Korea has three court classifications: the Supreme Court, High Courts, and District Courts. (50) Written law is the main source of modern Korean law and is made primarily through three different sources: statutes or acts passed by the legislature, presidential decrees, and regulations or rules passed by government and local agencies. (51) Although the Supreme Court of Korea can create decisions with some precedential value, court decisions are not normally considered binding in the law. (52) Unlike the United States, case law or precedent is a secondary resource as opposed to primary, but the lower courts tend to follow the Supreme Court's decisions. (53) The South Korean Animal Protection Act was promulgated by one of its government agencies, the Ministry of Agriculture, Food, and Rural Affairs. (54)

   4. History of Development of South Korean Animal Law with Comparison to US and Swiss Law

      The history of animal law in South Korea is admittedly brief, as the perception of animal rights did not even begin until after the forced opening of its gates through Japanese colonization and subsequent rapid industrialization. (55) Many believe that the impetus for the creation of Korean animal cruelty law came in the form of the 1988 Seoul Summer Olympics. (56) The Olympics being held in Seoul brought international attention to the cruelties of the South Korean dog and cat meat market. (57) Activists asked the global community for support...