Current Legal Issues related to Companion Animal in Korea

 

Abstract

Growing number of pets in Korea, there are a lot of animal issues getting more attention these days. Despite of its embryonic stage, the movement to improve the animal’s legal status gets started in Korea. It is not enough to protect animals that excising Animal Protect Act legislated in 1991. The Criminal Act and Civil Act govern the areas not covered by the Animal Protection Act, but the Acts also needs to be improved. It is because the Korean legal system recognizes animals only as objects. However, it is obviously true that the animal rights will be enhanced with the focus on companion animals, and its movement would gradually spread to the welfare of laboratory animals and livestock. Moreover, the range of compensation for animal loss will be expanded. Nowadays the non-economic compensation for pet owners as a result of illegality to their pets by someone else is considered as ‘special damage’. But, in the recent law case, the reason for recognizing ‘special damages’ already includes the logical reason for ‘general damage’. It is expected that the owner’s mental compensation due to animal damage will be considered ‘general damage’ in the near future. Meanwhile, pet and pet owner’s rights would have appeal to people when the owner keeps corresponding obligation. Growing need for strengthening duties on pet owners, it is expected that laws reflecting these obligations will be enacted actively. The current law only requires the mandatory use of a leash and the use of a muzzle on some dangerous breeds. Refer to the overseas pet accident acts, legislation will be recommended having a registration, insurance and reproduction control system for some dangerous animals.

 

I. Introduction

All animals are merely considered as objects in the Korean legal system. The definition could be accepted without a doubt if animals are merely livestock. However, there are 10 million pet owners in Korea these days. Such social changes have raised legal issues, such as the movement to improve the legal status of animals, the increase of civil damages related to animals, and the legalization of animal management and duty.

First, the movement to improve the legal status of animals themselves arises. The word “companion animal” is also the result of the movement. Since established in 1991, the Animal Protection Act has also been revised several times to reflect these social changes. However, it is clear that animals have limitations that cannot be humanized in law, and animals cannot have legal competencies. Like famous Korean lawsuit case of Salamander[1], companion animals themselves cannot have legal rights or legal competencies. They cannot act as agents of duties commensurate with their rights.

Second, the issue regarding the death or illness of pet due to misconduct or neglect of legal duty by others arises. In that case, obviously the issue of compensation follows, especially the non-economic damages of pet owner, so called, the consolation money. This is because pets are gradually getting their position from human, unlike livestock, based on emotional communication between pet owners and pets. For example, the injury or death of a pet can be caused by a traffic accident due to neglect of driver’s duty or by inadequate care of various pet services such as animal hospital treatment, pet care service from pet hotel and etc.

Third, the duty of the pet owner becomes an important legal issue now. Recently, an accident was occurred by a pet whose owner is famous Korean idol Choi Si-won. The dog bit a person and she died. This accident made people take attention to the issue of the duties of pet owners; considering the neglect of management and duty of pet owner as a crime. Although it has been 10 years since Korean people started to question the social conditions of apartments to live with pets, the increase of pet inevitably leads to living with pets together. The responsibilities of pet owners begin to be emphasized. Various regulatory measures, such as neutering, de-barking a dog, attaching a neck leash and muzzling a dog are considered dealing with the problem such as noise and pet attacks on people. But, those measures sometimes conflict with the rights of the animal.

II. Type of legal issues about companion animal

1. Animal rights and its owner’s rights

(1) Animal rights: Lack of legal protection for companion animal in Korea

In 1991, Animal Protection Act was enacted to protect and manage animals properly in Korea. According to Article 1 of the Animal Protection Act and its reason for establishment, it is designed to prevent cruelty to animals and foster the people’s minds for animal protection by setting out the necessary steps to protect and manage animals properly.[2] It is remarkable that the purpose of the legislation is not only focused on the protection for animal rights, but on the cultivation of people’s the minds for animal protection. The Animal Protection Act’s main goal seems to regulate on animal owners and raising awareness for animal protection. Animal right itself is secondary.

Articles 3 and 4 of the Animals Protection Act specify principles of animal protection. Article 8 of Animal Protection Act prohibits killing, abusing or abandoning animals. According to Article 46 of the Animal Protection Act, penalties for violating Article 8 of the Animal Protection Act include jail terms of less than one year and fines of less than 10 million won.

With regard to infringements on animal rights, Criminal Act may be applied to the case, except for the range that the Animal Protection Act governs. In Korea, however, when animal rights are violated, criminal law is rarely applied. As mentioned in Introduction, under Korean Criminal Act, animals are regarded as objects, so the only applicable Article is the destruction of property damage, Article 366 of the Criminal Act.

In a recent case law in 2015[3], the accused kicked a neighbor’s pet because the pet barked at him, but the dog already had had crippled knees when it happened. The accused defended himself on the reason for the attack on the pet with Self-Defense, Article 21 of the Criminal Act. However, it is proved that the disabled dog was not really able to do any harm to him, so the accused was rarely seen as in an emergency, thus he was convicted of the destruction of property damage, Article 366 of the Criminal Act. However, the sentence was only 700,000 won, compared to the cost of treating the injured dog with injury was 1,400,000won[4], it was a ridiculously small fine.

The case above is an exceptional case of a dog with a disability. In most cases, the Criminal Act focuses on protection of people who feel threatened by dogs rather than the animals and its owners, because the covering scope of the Article 366, the destruction of property damage of the Criminal Act is very narrow. Article 366 of the Criminal Act is that “A person who, by destroying, damaging, or concealing another’s property document or special media records, such as electromagnetic records, etc., or by any other means, reduces their utility, shall be punished by imprisonment for not more than three years or by a fine not exceeding seven million won.” The Article prescribes that the principal offender should be a “third party”, not the owner of the property, animal. The crime can only be committed “deliberately”. The Criminal Act cannot provide any legal basis to solve the cruelty of an animal owner and the assault in the absence of malice.

In this section, it is needed to check the application of the Animal Protection Act once again. But, Article 8 of the Animal Protection Act does not normally penalize the owner who kills or abuses the animals, but it only covers assaults that involve cruel ways. Fortunately, according to the revision of the Animal Protection Act, which is scheduled to take effect on March 22, 2018, Article 8 ‘ to kill ‘ will be changed to ‘ to die ‘. It means without “deliberate” cruelty, punishment becomes possible. However, animal cruelties or violence by owners which are below the brutal level are still out of regulation. There is no Article to regulate those owners’ acts.

Critics say that Korean Animal Protection Act does not properly protect animal rights. There is no other Article for protecting animals in Korean Criminal Act and Civil Act. Critics claim that the lack of legal protection is primarily due to the existing view of animals as objects in the Korean legal system. In European countries, the legal status of animals, especially pets, are not just objects, and the point of view which considers animals more than objects has gathered strength recently. Especially, in Germany, by Civil Law revision of the year 1990, the peculiar characteristic of animals is acknowledged by stipulating clearly that animals are not objects.[5]

In May 2017, there was the first application for the legal judgment of the unconstitutionality on the 98 Article of the current Korean Civil Act that defines pets as objects.[6] The Korean legislative movement is only in its beginning stage.

 

(2) Pet owner’s right: Compensation for non-economic damages

The movement to improve the status of pets is not only due to the improvement of the public’s general empathy with the animal, but also the deep emotional connection between pets and their owners. In addition to the movement to define the status of the pets as more than just objects, there are growing interests in mental damages of pet owners who suffered from the death or loss of their companion animals. Recently, leading cases show that the Korean Civil Act acknowledges emotional damages caused by special circumstances in case of the emotional distress caused by death of a pet. One of latest the judicial cases is bellowed.

The fight between Chihuahua and Jindo Dog resulted in the Chihuahua’s death after being bitten by a Jindo dog. After the death of the pet, the Chihuahua owner filed a suit demanding compensation for mental damages of the death of Chihuahua. The contents of the compensation for damages were the cost of buying a Chihuahua and consolation money of the loss.

The Daegu District Court’s ruling said there was the owner’s mental damage from the death of his pet, and compensation was considered as special damage.[7] They ruled in the consideration that (a) the purpose of keeping a pet is to share mental bonds and affection with a pet, (b) unlike other objects, pets are animals with life, (c) these days people think of pets as companion animals, not just animals.” And they said “In the event of a pet’s death due to an offense by someone else, the pet owner’s mental loss is damage from a special circumstance that cannot be cured by compensation for the cost of buying the pet or market value of the pet. Since the offender knew or was able to recognize such a special circumstance, he is responsible for paying a certain amount of consolation money to pet owners.”

The court took social changes into consideration and the judgment is reasonable in the result. However, in current judicial precedents which regard an animal owner’s damage as ‘special damage’ including the above, the damage should be predictable at the time of an illegal act or contract in order to demand compensation. Unpredictable damages cannot be compensated. But, it is objectively easy to predict that the pet’s death will cause the owner’s mental damage. The lawsuit case also mentioned that “from a commonsense standpoint, it is easy to foresee the losses of the pet owners.”[8] So, it is reasonable to consider the owner’s mental damage as a ‘general damage’. [9] Nowadays some progressive scholars even quote “A pet is not a simple item of personal property but occupies a special place somewhere in between a person and a piece of personal property.” [10] If those scholars are right, compensation for owners who lose pets should be considered more ‘general damage’.

 

2. Legal obligations of pet owners

(1) Legal obligations of pet owners in Korea

In Korea, awareness of safety accidents in which pets hurt their neighbors is increasing, as the growing number of pets in the city. Since animals cannot be responsible for their nature, the duties of animal owners are emphasized. The current revised Animal Protection Act also has regulation on animal owners to prevent harm caused by pets.

Basically, according to Article 12.1 and Article 47.1.5 of the Animal Protection Act, the owner of an animal subject to registration shall register the animal.[11] According to Article 13 of the Animal Protection Act, pet owners shall take safety measures, such as attaching a neck leash, when walking out with their pets. Several dog breeds which are more likely to attack and injure people have to be put muzzles. If violating the law, pet owners will be fined not more than one million won according to Article 13.2, Article 47 of the Animal Protection Act.

If a dog without proper safety precaution attacks a person, and results in an accidental or fatal injury, the owner may be charged with the bodily injury by negligence, Article 266 or death by negligence, Article 267 of the Criminal Act, or may be liable for damage compensation of Civil Act.[12] However, public opinion is growing that existing the obligation of the current Animal Protection Act, Criminal Act and Civil Act are not enough. In particular, attention is growing regarding the management of pets after the death of owner of famous restaurant Han-il-gwan after the attack of singer Choi Si-won’s pet. Recently, the government decided to revise the Animal Protection Act because of the controversy due to human accidents caused by companion dogs, so as to establish a ground for criminal punishment of pet owners in case of injury or death.[13]

 

(2) Legislation related to pet owner’s obligations overseas

In the United States, “Dog Bite Law” is applied to punish dog owners who cause damage to somebody while owners let their dog walking around without a leash. They can be fined $ 1000 or sentenced to jail. Each state can have different regulation. For example, Georgia has a law requiring the owners of fierce dogs to register their dogs and make it obligatory to buy insurance at least $ 50,000 (577 million won). Florida also imposes a strict punishment for a minor offense when a dog bites a person and the pet owner does not fulfill his responsibility, including compensation.[14]

Britain has been implementing “Dangerous Dogs Act” since 1991. The Act places fierce dogs under special control by requiring a license from the court to keep them. It prescribes obligations that the owners have to insure and neuter the fierce dogs, and even insert a microchip in order to ensure that the dogs could not be bred, sold or exchanged arbitrarily. In addition, if a victim dies by a dog bite accident, the owner of the pet can be sentenced to up to 14 years in jail.[15]

 

III. Conclusion

1. Improvement of animal rights : the third position

Although it is still in its embryo, the movement to improve the animal’s legal status will continue, with reference to an increase of pets in Korea, and examples of foreign legislation. Through this, the animal rights will be enhanced with pets, and its movement would gradually spread to the welfare of laboratory animals and livestock. Although companion animals themselves cannot have legal rights or legal competencies, animals will be take their ‘third position’ by stipulating that animals are not objects.

As legal status of animals improves, a reassessment of the sentence that meets the sense of justice of the people will be made and the non-economic compensation for pet owners as a result of legal damage to their pet will be regarded as ‘general damage’. In the recent law case, the reason for recognizing ‘special damages’ already includes the logical reason for ‘general damage’.

 

2. Legalization of pet owner’s obligations

As the need for strengthening duties on pet owners, it is expected that laws reflecting these obligations also will be actively implemented. As human damages from pets increase, laws should first be made to regulate dangerous animals, including fierce dog breeds. It is also generally recommended that all of the pet owners register with the animal registration system and dog insurance to strengthen their duty of keeping pets in line. To practice those methods, appropriate legislations should be made.

We should pay more attention to the use of methods such as euthanasia, that we should not violate the animal rights, under the pretense of regulating animal damages. Acts such as euthanasia of a dog which caused a fatal accident are not right. Animals basically do by nature. The responsibility lies with the owner or keeper of the animal. Euthanasia could only be considered in a special case, such as the animal having a particularly dangerous infectious disease. Remember animals are also among the socially. It is said that the level of animal treatment is the level of society. Furthermore, the modern legal system should not make a wrong decision similar to that of “Elephant exile case”[16] during the Chosun Dynasty, which would be a ridiculous story for future generations. We are optimistic that the legislation for coexistence with companion animals will develop further.

 

[1] 2003KaHap982 (Ulsan District Court, Apr. 8, 2008).

[2] Animal Protection Act, art. 1.

[3] Kicked the puppy because it went on to growl…but A fine of 700,000 won, Legal Newspaper (Jan 27, 2016), available at https://www.lawtimes.co.kr/Case-Curation/view?serial=98298 (last visited Jan. 25, 2018).

[4] Ibid.

[5] Park Jung-gi, A Study on Legal Status of Animals, The study of law, vol. 51, Issue 3, (2010), at.7.

[6]  ” Animals are not objects … current Civil Act is unconstitutional…” raising a verdict of unconstitutional, Yonhap News, (May 24, 2017), http://www.yonhapnews.co.kr/bulletin/2017/05/24/0200000000AKR20170524097000004.HTML?input=1195m (last visited Jan. 25, 2018).

[7] 2013GaSo35765 (Daegu District Court, Feb. 13, 2014).

[8] Bae Ki-seok, Bae So-min, Analysis on Court Decision : Study on the Korean and Japanese cases of Liability problem related to animals, Beophak-yeongu, Vol. 53, Issue 2, (May. 2012), 109-130, at 16.

[9] Ibid.

[10] Choi Na-jin, How to measure the Damages and Valuation for Companion Animal’s Loss?, Beophak-nonchong, Vol 36, Issue 3, (2016) 193-224. at 221.

[11] In Korea, a pet registration system has been mandatory for pet dogs with pets older than three months old since Jan. 1, 2014. Animals that are required to register will gradually expand.

[12] Shin Eun-Sook’s legal column: Act on the companion dog, M economy News, (Nov.18. 2017), http://www.m-economynews.com/news/article.html?no=20785 (last visited Jan. 25, 2018).

[13] Max 3 years of imprisonment in case of death due to a dog … Mandatory training of dog owner, News1 (Jan.18.2018), http://news1.kr/articles/?3210281 (last visited Jan. 25, 2018).

[14] Korea is to be tougher on dog bites … America even applies to murder, Chosun Biz, (Oct. 26. 2017), http://biz.chosun.com/site/data/html_dir/2017/10/25/2017102501965.html#csidx17f0b667230f904bceae43e7202a1b9 (last visited Jan. 25, 2018).

[15] Ibid.

[16] In 1413 the elephant went to the Jeolla province on the grounds of killing the person (Yiwoo).
Lee Ki-hwan , The lining of the story of the elephant’s exile incident that surprised Chosun Dynasty, The Kyunghyang Shinmun, (Aug 13, 2013).

 

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