Seoul Metropolitan Police filed on May 31 for an arrest warrant against a 24-year old Korean man, identified only by his surname Kim, for flag desecration. According to the Hankyoreh, Kim “burned a piece of paper showing an image of the South Korean flag while facing off with police who had erected a vehicle barricade at a memorial demonstration for the first anniversary of the Sewol ferry sinking.”
Kim is accused of setting fire to the paper showing the South Korean flag in front of the barricade of police buses after large sections of major roads around Gwanghwamun Square in downtown Seoul were closed off during the Sewol memorial demonstration on April 18. After images of the scene appeared in the press and politicians began calling for harsh punishment, police spent 40 days tracking Kim’s activities before finally arresting him on May 29 at a park in Anyang, Gyeonggi Province.
…In requesting an arrest warrant, police also charged Kim with general traffic obstruction, failure to obey an order to disperse, and damage to public property (a police bus).
The most interesting charge pertains to Article 105 of the Criminal Act, Pofanation of the National Flag or Emblem:
A person who damages, removes or stains the national flag or the national emblem for the purpose of insulting the Republic of Korea shall be punished by imprisonment or imprisonment without prison labor for not more than five years, suspension of qualifications without prison labor for not more than five years, suspension of qualifications for no t more than 10 years, or a fine of not more than seven million won.
Article 105 specifically requires intent or “purpose of insulting the Republic of Korea” for the charge of flag desecration.
According to the op. cited Hanky article, “during questioning by police, Kim said he ‘did not have the aim of desecrating the flag,’ adding that he set fire to it ‘spontaneously out of rage at the police’s unjust use of authority.’ Kim’s attorney, Jeong Min-yeong, said Kim ‘only set fire to the flag as an expression of protest at the police’s excessive suppression tactics. There was no other aim besides that.'”
Chief of the SMPA’s second investigation section Kim Geun-man said,”the purpose of his flag burning is still under investigation. It has not been confirmed whether Mr. Kim is affiliated with any specific groups.”
An attorney with the group MINBYUN-Lawyers for a Democratic Society, Park Ju-min commented “we should take a separate view when it comes to criticizing the government’s exercise of public authority, as opposed to insulting the state.”
For those who wonder “what constitutes a flag” and for comparison, U.S. code uses the term “flag of the United States” to mean “any flag of the United States, or any part thereof, made of any substance, of any size, in a form that is commonly displayed.” In short, that Kim burned a paper picture of a Korean flag is likely a non-starter as a principle of defense.
U.S. law also has provisions for criminal prosecution of U.S. flag desecration:
§700. Desecration of the flag of the United States; penalties
(a)(1) Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year, or both.
U.S. code considers flag desecration damaging the U.S. flag for clothing material or using the U.S. flag for a beach blanket. I found nothing in Korea’s Criminal Act that criminalizes such uses.
Korea’s Criminal Act, Article 109 (Profanation of Foreign Flag or Foreign Emblem) also criminalizes damaging, removing, or staining a foreign national flag or emblem for the purposes of insulting a foreign country. Article 110 requires, in effect, the consent of the foreign government concerned, which might explain the absence of criminal prosecutions when Koreans burn U.S. flags in protest.
The key difference is that the U.S. Supreme Court has consistently held that flag desecration as a form of political protest, even against the United States, is protected speech.
I do not want to make spectator sport of another man’s life, but I hope Kim is forced to mount a constitutional challenge based on political speech. Korea’s Constitutional Court has made some head scratching rulings regarding political speech in Korea, and the Constitutional Court’s prior rulings paint itself into a corner.
A local court refused to issue an arrest warrant Tuesday for a protestor accused of burning taegeukgi, the Korean national flag, during a rally in April after concluding that the incident as an impulsive act
…Seoul Central District Court said, “It seems that Kim was stirred up, inflicting an injury on himself on the arm during the rally, and burned the flag impulsively and unpremeditatedly.”
It said that the prosecution would be able to investigate Kim without arresting him, considering that he did not commit the crime systematically or with other accomplices, that he has reflected on his acts and that he has no previous criminal record.
Seeking the warrant prompted criticism of the police and the prosecution, because it is unusual to do so for burning a taegeukgi.
There have been many incidents during which protestors, conservative and progressive, have burned the national flag during rallies. But such people have usually not faced indictment, as the law states only those who damage the national flag “with intention to defame the country” are subject to punishment.