Republic of Korea (South Korea)

Last updated on: 27 April 2012

Criminalisation of HIV transmission/exposure

Republic of Korea (South Korea)
Whether Specific law enacted: 
Yes
Number of people prosecuted: 
1
Number of people convicted: 
1
Applicable law: 

Law on the Prevention of AIDS (1987) Revised version of Law No. 3943 of 28 November 1987, as amended by Laws No. 4077 of 31 December 1988 and No. 5135 of 30 December 1995

The Prevention of Contagious Diseases Act of 1954

Key wording in the law: 

Article 15 Compulsory Disposition; Article 19 Prohibition of Propagation Intermediary Act (Law on the Prevention of AIDS 1987)

Article 2 contagious diseases; Article 29 Patients to be kept in Quarantine (The Prevention of Contagious Diseases Act of 1954) 

Key Cases: 

In 2009 a 26-year-old HIV-positive man became the first person prosecuted under the country's Law on the Prevention of AIDS (1987) for having unprotected sex without first disclosing his HIV status. The man reportedly had sex with at least ten women. He received an 18-month prison sentence. The case occasioned calls for tougher laws for such conduct. See attached media articles.

In 2010, a court refused to issue an arrest warrant for a teenage HIV-positive sex worker who was alleged to have exposed 20 men without disclosure. See attached media articles.

Discussion: 

Law on the Prevention of AIDS 1987

Article 13 Establishment, etc. of Diagnosis and Treatment Institution

(1) The Minister of Health and Welfare may establish and operate a research institution or specialized medical institution necessary for the prevention of AIDS and the protection and control of those affected.

Article 14 Directions for Medical treatment

If the treatment of those infected is deemed necessary for the public interest in order to prevent the infection of HIV, the Minister of Health and Welfare or Mayor/Do governor shall order those infected as prescribed by the Presidential Decree who might infect others with it, to receive treatment as the specialized institution under Article 13.

Article 15 Compulsory Disposition

(1) If those infected who received the directions for medical treatment under Article 14, fail to comply with it, the Minister of Health and Welfare or Mayor/Do governor may have a pubic official under his jurisdiction enter a residence or place in which those infected are to be found, and conduct a necessary investigation, and have them receive treatment.

Article 27 Penal Provisions

Any person who falls under any of the following subparagraphs, shall be punished by imprisonment for not more than one year or a fine not exceeding three million won.

4. A person who fails to comply with a compulsory disposition under Article 15.

Article 19 Prohibition of Propagation Intermediary Act

The infected shall not perform any of the following propagation intermediary acts:

  1. Sexual acts without any preventative measure against infection as prescribed by the Presidential Decree; and
  2. Act to propagate others through blood or bodily fluids.

Article 25 Penal Provisions

Any person who falls under any of the following subparagraphs, shall be punished by imprisonment for not more than three years:

2. A person who performs an intermediary act of propagation in contravention of Article 19.

Also of interest is:

Article 16 Establishment and Operation of Sanatorium

(1) The Minister of Health and Welfare or Mayor/Do governor may establish and operate facilities for the medical treatment and recuperation of those infected (hereafter referred to as a ‘sanatorium’) and facilities for providing information for and giving advice to those infected (hereafter referred to as a ‘rest place’).

(2) Matters necessary concerning the establishment and operation of the sanatorium and rest place under paragraph (1) shall be prescribed by the Ordinance of the Ministry of Health and Welfare.

The Prevention of Contagious Diseases Act of 1954

Article 2 Definitions

The term ‘contagious diseases of Type 3’ means the contagious diseases as set forth in the following terms, which require a continuous surveillance and the adoption of preventative measures against their outbreak because they may spread intermittently:

(r) Acquired immunodeficiency syndrome (AIDS)

Article 29: Patients to be kept in Quarantine

Of the patients affected by the contagious diseases of Type 3, such a patient as determined by the Ordinance of the Ministry of Health and Welfare shall be kept in quarantine and receive medical treatments.

Other laws and policies with an impact on responses to HIV

Laws and regulations relating to entry, stay or residence in the country: 

The Korean Immigration Control Act, article 11, bars foreigners with infectious diseases and HIV/AIDS from entering the country. Entry is denied if HIV infection is suspected. However, for a stay of up to 3 months and for visitors who do not require a visa, it is not mandatory to prove one's HIV status. There are no controls at the border related to HIV status. Infectious diseases must be reported to the authorities.

HIV-tests have to be submitted before entry, by particular groups (eg. entertainment industry such as artists, dancers, singers, musicians etc.). Entry is denied in the case of a positive test result. If the test is not submitted before entering the country, it has to be performed within 72 hours at premises designated by the authorities.

Updated Regulations

UNAIDS announced that the Republic of Korea should lift entry restrictions based on HIV status by January 1, 2010. There has not yet been any official word from the Government of South Korea that confirms this. (January 2010)

For updated information, please go to: www.hivrestrictions.org

Laws relating to same sex, sexual relations: 

Male to Male relationships: Legal

Punishments for male to male relationships: No law

Female to Female Relationships: Legal

Age of consent: Equal for heterosexuals and homosexuals

Marriage and Substitutes for Marriage: No law

For updated information, please go to: http://ilga.org