A single request to "please keep an eye on the children" was answered with violence. This is a story featured on the 14th on JTBC's "Case Supervisor." A, who has run a chicken restaurant in Gwangju for ten years, served a group of customers who came in with three children at around 7 p.m. on the 11th. The women in the group already appeared to be drunk, and the children were running around inside and outside the restaurant.
When one child ran out of the restaurant onto a road with heavy traffic and tried to play with the water purifier, A asked the guardians to watch the children. One of the women then hurled abuse at her, saying, "Who are you, lady, to tell us what to do?" When A said she would call the police, the customer reportedly shot back, "Even if you call them, I can get off on diminished capacity." Later, when A stopped a child from hitting the tank of a turtle she had raised for 16 years, the customer struck A on the back of the neck several times with her full weight behind the blows and spat on her. The blows were hard enough to break A's hairpin, and A's daughter was also present. Even as she was taken away by the police, the customer claimed that the owner was after settlement money.
What charges will apply remains to be seen from the results of the investigation. But being hit by a customer in one's own shop can happen to any small business owner. Let us examine whether being drunk is a reason to escape punishment, and what a business owner who has been harmed should take care of.
1. What Crimes Does a Customer's Violence Constitute?
A. Assault and bodily injury
Exercising physical force against another person's body constitutes the crime of assault. Article 260(1) of the Criminal Act provides for imprisonment for not more than two years, a fine not exceeding 5 million won, penal detention, or a minor fine. Not only striking someone on the back of the neck, but also spitting toward another person's body, can be regarded as an exercise of physical force against the body. If a diagnosis such as a bruise or sprain is made for the area that was struck, the crime of bodily injury (Article 257(1), imprisonment for not more than seven years, suspension of qualifications for not more than ten years, or a fine not exceeding 10 million won) becomes an issue. Because assault and bodily injury differ greatly even in their statutory penalties, it is important to receive medical treatment right after the harm.
B. Interference with business
If a customer made it difficult to run the business through abuse and disorderly conduct in the shop, interference with business (Article 314(1) of the Criminal Act, imprisonment for not more than five years or a fine not exceeding 15 million won) should also be considered. "Force" here broadly refers not only to violence and intimidation but to any power sufficient to overcome a person's free will. If a customer struck an owner who was running the business and caused a disturbance that kept the owner from serving customers normally, interference with business may be recognized separately from assault.
2. Will "I Was Drunk and Don't Remember" Work?
A. Requirements for mitigation due to diminished capacity
Article 10(2) of the Criminal Act provides that the punishment for an act of a person whose ability to discern things or make decisions is weak due to mental disorder may be mitigated. An amendment in 2018 changed "shall be mitigated" to "may be mitigated." Whether to mitigate is at the court's discretion, and the mere fact of having been drinking does not automatically reduce the sentence. In practice, too, it is rare to obtain mitigation simply by claiming to have been drunk. If the offender remembers and describes how the crime unfolded, chooses whom to attack, or makes arguments in his or her own favor in front of police officers, it is easy to conclude that the offender's capacity for judgment remained.
B. The court's view
Paragraph (3) of the same Article provides that the mitigation provision does not apply to a person who foresaw the occurrence of danger and voluntarily brought about a mental disorder. This is the so-called actio libera in causa.
Supreme Court Decision 92Do999, July 28, 1992
Article 10(3) of the Criminal Act also covers cases in which a person voluntarily brought about a mental disorder even though the occurrence of danger could have been foreseen; in such cases, no mitigation for mental disorder may be granted.
If a person drank voluntarily while knowing that being drunk could escalate a quarrel, it is difficult to invoke "diminished capacity" for violence committed in that state. If, as in this case, the person said before the crime, "I can get off on diminished capacity," that statement itself could be used as evidence that the person had the capacity for judgment.
3. Why the Matter Should Not End With a Minor-Offense "Ticket"
A. The effect of paying a fine
Being drunk and disorderly or causing a disturbance with rough words and behavior at a restaurant falls under drunken disturbance under the Punishment of Minor Offenses Act (Article 3(1)20). The police sometimes issue a notice of a fine on the spot, the so-called "ticket," and close the case. The problem is that a person who has paid the fine may not be punished again for that offense (Article 8(3) of the same Act).
B. The court's view
Supreme Court Decision 2010Do11987, January 27, 2011
Because payment of a fine for a minor offense has an effect equivalent to a final and conclusive judgment, if the charged facts of interference with business constitute the same case as the drunken disturbance for which a fine has already been paid, a judgment of acquittal by reason of the bar to prosecution must be rendered.
That case also involved a person who was drunk and disorderly at a chicken and beer restaurant. At the scene, a drunken disturbance ticket was issued on the ground that "there is no victim," and the Supreme Court reversed the conviction for interference with business. This means that if the owner does not clearly state the harm suffered, the matter may be closed as a minor offense, cutting off the way to punish the offender for a more serious crime.
4. If You Have Been Assaulted by a Customer in Your Shop
A. What to take care of in criminal proceedings
First, you must secure the original CCTV footage from the shop. Because some devices store footage for as little as a few days, it is best to copy it to a separate storage device right away. If other customers or employees were present, get their contact information, and receive medical treatment the same day to obtain a medical certificate. When the police arrive, you must clearly state the harm you suffered, that "my business was obstructed and I was assaulted," as well as your wish for the offender to be punished. Assault is a crime that cannot be punished if the victim expresses a wish not to have the offender punished (Article 260(3) of the Criminal Act). Bodily injury and interference with business, on the other hand, are not. Since the investigation continues regardless of whether a settlement is reached, a statement of non-punishment should be written only after the terms of the settlement have been finalized.
B. How to receive compensation
You can claim medical expenses, losses for the period you could not operate, and compensation for non-economic damages from the offender (Articles 750 and 751(1) of the Civil Act). If the offender is indicted for bodily injury, you can apply for a compensation order during the criminal trial, opening a way to receive medical expenses and compensation for non-economic damages without a separate civil lawsuit (Article 25(1) of the Act on Special Cases Concerning Expedition of Legal Proceedings (the “Legal Proceedings Expedition Act”, 소송촉진법)). Simple assault and interference with business are not crimes eligible for a compensation order, but if there is an amount agreed upon with the defendant, that amount can be received through a compensation order (Paragraph (2) of the same Article). Even if the offender claims the victim is "after settlement money," it is a natural right of the person harmed to demand fair compensation.
C. If you have been named as the offender
Conversely, if you became a suspect after getting caught up in a quarrel while drinking, saying you do not remember because you were drunk usually does not help. In a case with CCTV footage, disputing the facts can instead easily lead to the assessment that you show no remorse. The realistic response is to apologize sincerely and try to reach a settlement to make amends for the harm.
5. Closing Remarks
Small business owners cannot pick and choose their customers. That leaves them all the more defenseless against violence inside their shops. When an owner stops dangerous behavior, it is also for the safety of the customer's own children. The law does not accept an attitude that answers such words with violence and then tries to escape responsibility by blaming alcohol. But to receive that protection, victims must preserve evidence in time and make their wish for punishment clear. Investigative agencies, too, should listen carefully to the harm business owners have suffered so that cases are not covered up with a single minor-offense ticket at the scene.
(Shin Dong-woo, Managing Partner, DAEON Law Firm)
Photo: Brodie Vissers, CC0 (StockSnap, Openverse)
2026. 10. 17. · By Attorney Dongwoo Shin
Call
KakaoTalk
E-mail