'Human trash,' 'you young bastard'... Why it does not constitute insult

[Financial News] The Supreme Court of Korea is successively raising the threshold for punishment in insult cases. The reasoning is that harsh expressions that amount merely to temporary outbursts of emotion are closer to the realm of civil liability than criminal punishment. In effect, the principle that criminal punishment should be a last resort has been applied to the determination of insult cases.
According to legal sources on the 17th, the Second Division of the Supreme Court of Korea, with Justice Park Young-jae as the presiding justice, overturned the lower court's ruling on the 12th of last month, which found YouTuber A guilty of insult for saying "You're human trash" during an argument in a hospital room, and remanded the case to the Daegu District Court. The court determined that the remark was a one-off, spontaneous, or impulsive statement made while roughly expressing dissatisfaction or anger in response to the victim's actions. Although the expression appeared capable of infringing on the victim's sense of honor by offending the victim's subjective feelings, the court held that it was difficult to definitively conclude that it constituted an act of insult objectively capable of lowering the social evaluation of the victim's personal worth.

This standard is not newly established. The Supreme Court of Korea set out this legal principle in a ruling on August 31, 2022, and applied it specifically in a ruling on May 8. In a case in which an apartment election committee member was indicted on charges of insult for saying, "Hey, hey, are you friends? You young bastard, where do you get off being so arrogant?" in front of residents in a meeting room at an apartment complex's community center in Bucheon, the First Petty Bench of the Supreme Court of Korea, with Justice Cheon Dae-yeob as the presiding justice, overturned the lower court's guilty verdict and remanded the case to the Incheon District Court.
The premise established by the Supreme Court of Korea is that the legal interest protected by the crime of insult under Article 311 of the Criminal Act is "external honor," that is, the social evaluation of a person's personal worth. Here, "insult" means expressing an abstract judgment or contemptuous feeling, without alleging facts, that is capable of infringing on external honor.
The court also clarified the standard for judgment. It stated, "The issue should not be determined by whether an expression is capable of infringing on a person's sense of honor—for example, whether the other party feels offended upon hearing a particular expression based on that individual's subjective feelings or emotions. Rather, it must be strictly determined, in light of all objective circumstances, including the relationship between the parties, the circumstances that led to the expression, the manner of expression, and the situation at the time, by whether the expression is capable of infringing on the other party's external honor."
This means that the focus is not on whether the victim felt insulted, but on whether the expression actually lowered the victim's social evaluation. The court instructed that the overall content and context of the expression be considered, rather than examining isolated remarks separately. The point is to consider together whether the remark was spontaneous or exaggerated, the circumstances and nature of how the conversation or discussion came about, and the relationship between the actor and the other party.
The problem is that the standard for determining whether "social evaluation has actually declined" remains abstract. The number of people entering criminal proceedings for insult is not separately tallied. However, according to crime analysis by the Supreme Prosecutors' Office of the Republic of Korea (SPO), the number of offenders arrested under the category of "honor" was 35,451 in 2022, 31,201 in 2023, and 30,637 in 2024. Although the trend is declining, the figure remains in the 30,000s each year.
Insult is a crime subject to complaint, meaning that an investigation can begin only upon a complaint by the victim. This also means that a complaint may be filed solely because the other party felt insulted. Although the Supreme Court of Korea has shifted the standard for judgment from subjective feelings to objective circumstances, the same standard is not immediately applied at the preceding stages of filing a complaint and opening a case.

Some have pointed out that although an act of insult—that is, conduct infringing on personality rights, honor, and feelings—may constitute a civil tort, it does not necessarily constitute an expression that immediately entails criminal liability. A legal-sector official explained, "Expressions that amount to temporary outbursts of emotion should be left to society's own evaluative and control functions or regulated through civil liability; imposing criminal liability on them constitutes 'overcriminalization.'"
Overcriminalization refers to a phenomenon in which the scope of conduct defined as criminal by the state becomes excessively broad, undermining the principle that punishment should be a last resort. In fact, the legal and academic communities continue to raise this criticism regarding Korea's criminal justice system as a whole.
According to the report "Basic Research for the Reorganization of Criminal Punishment Provisions," submitted last April to the National Research Council of Economics, Humanities and Social Sciences by Yoon Ji-young, a senior research fellow at the Korean Institute of Criminology and Justice (KICJ), as of August last year, 1,069 of the 1,686 laws currently in force—approximately 63.4%—contained criminal punishment provisions. By number of provisions, the total was 11,165, averaging about 10 per law. The report noted, "As criminal punishment provisions have accumulated and expanded over a long period without systematic adjustment, criminal punishment has come to function as a broad regulatory tool, going beyond its original character as a last resort."
The reasoning presented by the Supreme Court of Korea in this ruling is also in line with that view. The court held, "Unless expressions amounting to temporary outbursts of emotion constitute aggressive, hostile, or contemptuous expressions based on discrimination or hatred relating to gender, race, ethnicity, disability, place of birth, sexual orientation, and the like, there are many areas in which they may be regulated by leaving them to society's own evaluative and control functions in accordance with the sociocultural context, or by imposing civil liability. Accordingly, caution is necessary before intervening by exercising the state's punitive power—a final and supplementary regulatory measure—through application of the standard for the crime of insult."
[email protected] Kim Dong-gyu Reporter