The Danger of Stalking Provisional Measures…Even Simple Contact May Lead to Prosecution

As stalking crimes increase and social awareness of them rises, "provisional measures" that physically and psychologically separate the offender and the victim from the early stages of investigation are increasingly being actively used.

Occasionally, a person in the position of a suspect arbitrarily approaches the victim in violation of these measures, in order to plead their innocence or convey an apology. However, since such an emotional response can trigger additional criminal punishment separate from the existing stalking charge, it is necessary to accurately understand the legal structure and gravity of this system.

When investigative agencies and the court determine that there is a risk of recurrence of the stalking act, they may order provisional measures under Article 9 of the "Act on the Punishment of Stalking Crimes (Stalking Punishment Act)." This is not limited to a mere written warning (Item 1), but includes coercive judicial control measures such as a ban on approaching within 100m of the victim's residence (Item 2), a ban on approach using telecommunications (Item 3), the attachment of an electronic device (Item 3-2), and further, detention in a national police agency holding cell or detention center (Item 4). What must be especially noted is that these measures are not a mere recommendation by an investigative agency but a formal decision of the court. Therefore, from the moment the decision is served, the suspect bears a strict legal obligation to comply.

If the suspect fails to comply with provisional measures from Item 2 to Item 3-2, this itself constitutes an independent crime. Under Article 20 of the Stalking Punishment Act (crime of non-compliance with provisional measures), the person may be punished by imprisonment of up to 2 years or a fine of up to 20 million won. The most frequently occurring error in practice is the act of leaving a text message to the effect of "I'm sorry" to the victim or making a phone call. Regardless of the good intent of the content, this is highly likely to constitute a violation of Item 3 (ban on telecommunications approach). This is likely to act as a major ground for a detention warrant being requested during the investigation, or to be reflected as a very unfavorable aggravating factor in the sentencing (determination of the term of punishment) at the main trial.

So, how should one respond when one judges that the provisional measures decision itself is unfair or excessive? At such a time, directly contacting the victim to clear up a misunderstanding or attempting a settlement only results in yet another violation of positive law. To exercise a legally sound right of defense, one must go through the lawful objection procedure prescribed in Article 12 of the Stalking Punishment Act. Requesting the competent court to revoke the provisional measures or change their type, and legally demonstrating on the basis of objective materials that there is no risk of reoffending, is the effective alternative.

Attorney Park Ju-young of Daeryun LLC said, "Ultimately, provisional measures ordered while a person is suspected of violating the Stalking Punishment Act must be accepted as a heavy legal order that strictly limits the party's scope of action. Emotional appeals or attempts to resolve personal misunderstandings are apt to backfire and add to the criminal charges," adding, "From the early stage of the case, the reasonable approach to prevent unexpected disadvantages is to receive the assistance of a legal expert with a high understanding of criminal procedure, preemptively block the risk of violating provisional measures, and prudently exercise the right of defense within lawful bounds."

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