[Why We Checked]

On April 28, a post appeared in the Danggeun Market gallery on DC Inside questioning a Danggeun Market user who had demanded a criminal background check certificate while recruiting a babysitter, asking, "Isn't it illegal to demand a criminal background check certificate?" A similar question was raised on Blind on March 18. That poster likewise quoted a Danggeun Market user's job ad and responded, "Isn't demanding a criminal background check certificate itself a criminal act?"

As information and communications technology advances, more and more people are hiring babysitters (child care helpers) directly, person to person, through online platforms. Being able to find a babysitter directly is convenient, but since it means entrusting someone with child care, people may also feel anxious about whether the applicant's identity and background are clear. Because individuals without sufficient legal knowledge are recruiting on their own, new legal questions are arising over what, and how much, an employer may demand from a job seeker. We examine whether it is lawful for an individual recruiting a babysitter to demand a criminal background check certificate.

[Fact-Check Summary]

- Under Article 6, Paragraph 3 of the Act on the Lapse of Criminal Sentences (hereinafter the 'Lapse Act'), no one is permitted to obtain another person's criminal record data except in cases prescribed by law.

- Heads of child- and youth-related institutions that hire babysitters and similar workers have the duty and authority to check for sex offenses and child abuse crimes at the time of hiring, under the Act on the Protection of Children and Youth against Sex Offenses (Article 56, Paragraph 5) and the Child Welfare Act (Article 29-3, Paragraph 5).

- However, not everyone who hires a babysitter is given this duty and authority; only institutions meeting the legal requirements and qualifications may check a prospective employee's criminal record.

- When recruiting a babysitter through an online platform or the like, an individual, unlike an institution, has no legal status as a child- and youth-related institution. Accordingly, no authority to check criminal records is granted.

- An individual's act of demanding criminal record data from a babysitter may be unlawful, since it can actually lead to an exchange of criminal record data. However, the core acts directly prohibited by the Lapse Act are obtaining and using criminal record data, and legal experts are divided on whether the act of demanding it is itself unlawful.

- The claim under review, 'demanding a criminal background check certificate is illegal,' is broadly consistent with the facts, but it omits context in that the act directly tied to illegality is not the demand itself but the obtaining and use of criminal record data. Danbi News therefore rates the claim 'Mostly True.'

[How We Checked]

- We reviewed the Lapse Act to confirm when criminal record inquiries and the obtaining of criminal record data are permitted.

- We reviewed the Personal Information Protection Act to confirm whether criminal record data constitutes sensitive information.

- We reviewed the Act on the Protection of Children and Youth against Sex Offenses to determine whether child- and youth-related institutions are obligated to check prospective employees' sex offense records at the time of hiring.

- We reviewed the Child Welfare Act to determine whether child- and youth-related institutions are obligated to check prospective employees' child abuse crime records at the time of hiring.

- We reviewed the Act on the Protection of Children and Youth against Sex Offenses and the Child Welfare Act to determine the legal requirements for child- and youth-related institutions that are qualified and obligated to check prospective employees' sex offense and child abuse crime records.

- We asked attorneys about the legality of demanding and obtaining criminal record data when an individual recruits a babysitter person to person.

[What We Found]

On April 28, a post titled "Isn't this illegal?" appeared in the Danggeun Market gallery on DC Inside. The post quoted a screenshot of a Danggeun Market job ad seeking someone to look after an 18-month-old girl at home. In the captured material, the person who posted the ad was demanding a criminal background check certificate as a required document. The DC Inside user raised the question, "Isn't it illegal to demand a criminal background check certificate?"

Why do people want to check a babysitter's criminal record even though it may violate the law? Koo Kyung-ri (25), who is raising a kindergarten-age child in Busan, said, "Since you're entrusting your child to someone even for a short while, you feel anxious when it's someone other than family. If I could check for a history of crimes such as sex offenses for safety reasons, I would want to." Jang Eun-jin (50), who lives in Daegu, said, "I occasionally look after my 5-year-old niece who lives near my home. With incidents and accidents so common, if I had to leave a child with someone for a long stretch, not just an hour or two or a drop-off and pick-up helper, I would want to check their criminal history as well."

◯ Checking another person's 'criminal record data' is, as a rule, not permitted

What exactly is a criminal background check certificate? Although the term is commonly used in everyday life, no document issued by a government agency actually bears the name 'criminal background check certificate.' What is usually called by that name corresponds to 'criminal record data' or 'investigation record data' under the Act on the Lapse of Criminal Sentences (the 'Lapse Act'), and the official document issued for it is the 'criminal and investigation record report.' Article 2, Item 5 of the Lapse Act defines the scope of 'criminal record data' as data containing information on sentences or dispositions such as: sentences of a fine or heavier, remission of sentence and suspended sentence; protective custody, medical treatment and custody, and probation; lapse of a suspended sentence; revocation of a suspended execution; and confiscation, forfeiture, community service orders and attendance orders imposed together with a sentence of a fine or heavier. The criminal and investigation record report contains virtually everything about an individual's criminal history. Anyone who wishes to check their own criminal record can obtain it through the Korean National Police Agency's criminal record report issuance system.

As a rule, inquiring into, using or obtaining another person's criminal record data is not permitted. Article 1 of the Lapse Act states its legislative purpose as 'guaranteeing the normal return to society of persons with criminal records by setting standards for the management of criminal records and investigation record data.' Attorney Shin Dong-woo of DAEON Law Firm explained, "The purpose (of this Act) is to protect the social interest in the rehabilitation of ex-offenders by ensuring that an individual's criminal record is not disclosed carelessly." Attorney Choi Ji-young of Law Firm Beopseung also emphasized, "The legislative purpose of the Lapse Act is to guarantee ex-offenders' return to society by restricting acts such as the inquiry, use and obtaining of criminal record data by unauthorized persons." Attorney Chae Da-eun of Law Firm Hanjoong explained, "There are broadly two legal interests the Lapse Act seeks to protect. The first is the right to informational self-determination, so that sensitive personal information such as criminal records is not needlessly disclosed or circulated; the second is guaranteeing rehabilitation, so that ex-offenders can lead normal lives in society without stigma."

Criminal record data is classified as sensitive information. Article 18 of the Enforcement Decree of the Personal Information Protection Act defines the scope of sensitive information, and Item 2 explicitly lists 'criminal record data.'

◯ Child- and youth-related institutions must run a 'criminal record inquiry' when hiring

The story is different, however, when a child- and youth-related institution hires someone. It is required to check prospective employees for sex offense and child abuse crime records. Babysitters and child care workers employed by child care service providers or public child care centers are also subject to criminal record checks. The purpose of this system is to protect children and youth from sex offenses and child abuse crimes.

Article 6, Paragraph 1 of the Lapse Act sets out the exceptional circumstances in which another person's criminal record data may be obtained or checked. Under that provision, obtaining or checking another person's criminal record data is permitted where necessary for a criminal investigation or trial, for the naturalization or residence permit of a foreigner, for the appointment of public officials and military personnel, and in other cases where another statute provides for criminal record and investigation record inquiries and notification of their results. The reason child- and youth-related institutions may check prospective employees' criminal records is precisely that this falls under the exceptions under individual statutes provided for by the Lapse Act.

The head of a child- and youth-related institution must, during the hiring process, confirm that the prospective employee has no record of sex offenses or child abuse crimes. Article 56, Paragraph 5 of the Youth Sex Protection Act and Article 29-3, Paragraph 5 of the Child Welfare Act stipulate this. Under these two provisions, there are broadly two ways to check criminal records. One is for the head of the institution to obtain the prospective employee's consent to a criminal record check and then be notified by the Korean National Police Agency whether the person has any sex offense or child abuse crime record. The other is for the prospective employee to look up their own criminal record and submit the result to the institution. In this case, the head of the institution may require the prospective employee to submit criminal record data directly so that their record can be verified.

Attorney Chae Da-eun added, "The types of crimes that child- and youth-related institutions may check under the law are limited to sex offenses against children and youth and sex offenses against adults under Article 56 of the Youth Sex Protection Act, and child abuse crimes under Article 29-3 of the Child Welfare Act, and in every case the duty to check is imposed on the head of the institution. Conversely, for ordinary criminal offenses such as theft or assault, even a child- and youth-related institution cannot request a criminal record inquiry without a separate legal basis."

That said, not every institution or facility engaged in child- and youth-related work may check job seekers for sex offense or child abuse crime records. Article 56 of the Youth Sex Protection Act and Article 29-3 of the Child Welfare Act impose the duty to check sex offense and child abuse crime records when hiring or assigning staff only on child- and youth-related institutions that are authorized, licensed, reported or registered under the law, such as kindergartens, day care centers, private academies, child welfare facilities and youth training facilities. Only public and private institutions established within the scope defined by law hold the duty to check criminal records and the authority that comes with it.

The Child Care Support Act has likewise regulated institutions carrying out public child care support programs, and from April 2026 it also brought into the formal system private child care service providers that meet certain facility and staffing standards and liability insurance requirements and are registered with local governments. Whether public, or private and registered after meeting these requirements, any entity operating child care services on a legal basis is subject, under the Child Care Support Act, to the legal basis for criminal record checks on care workers and to the management and supervision framework.

By contrast, facilities and institutions that have not gone through the legal procedures, such as unregistered academies, unreported study rooms and unlicensed child-minding rooms, do not qualify as child-related institutions or child care service providers as defined by the Youth Sex Protection Act, the Child Welfare Act or the Child Care Support Act, even if they engage in child- and youth-related work. Although such facilities are used as a practical child care alternative by dual-income families and others, they have neither the legal duty nor the authority to check sex offense or child abuse crime records, and they lie outside the reach of the public safeguards designed on that premise.

◯ Can an individual also demand 'criminal record data' when hiring a babysitter?

With advances in information and communications technology, it has become common to find a babysitter person to person through a platform. When an individual, rather than the head of a child- and youth-related institution subject to the law, recruits a babysitter, is it legally possible to demand criminal record data?

Judging from a recent post on Danggeun Market, opinions were divided among platform users as well. On a post titled 'Is it illegal to demand a criminal background check certificate between individuals?' some commented, "Since the work involves a minor, there are grounds for requiring it," and "If it's child-related work, it's only natural to ask for a check of child abuse and sex offense records," while others wrote, "It's illegal," and "Since it's private employment, doesn't that not apply?"

A post that appeared in Danggeun Market's 'Neighborhood Life' community around March, along with the comments on it. Opinions are divided over whether it is illegal to demand the submission of criminal record data when recruiting a babysitter between individuals. Captured from the Danggeun Market community

When an individual recruits a babysitter on a platform such as Danggeun Market, they cannot demand and receive a criminal background check certificate. Such an act may violate the Lapse Act, the Personal Information Protection Act and other laws. Attorney Lee Seung-woo of Law Firm Jeonghyang explained, "Demanding criminal record data when recruiting between individuals on Danggeun Market may violate Article 6, Paragraph 3 of the Lapse Act or Article 23 of the Personal Information Protection Act." Article 6, Paragraph 3 of the Lapse Act stipulates that no one may obtain criminal record data or investigation record data for the purpose of using it other than as prescribed by statute. Article 23 of the Personal Information Protection Act concerns restrictions on the processing of sensitive information.

Attorney Song Jae-bin of Law Firm Veteran explained, "As a rule, demanding a criminal record check in the hiring process is not allowed." He said, "Except in the exceptional cases prescribed by law, a criminal record check cannot be demanded," adding, "Whether it is recruiting a babysitter between individuals or hiring by a private company, demanding a criminal record check is problematic even with the consent of the parties."

Attorney Ahn Jun-hyung of Law Firm Jihyeok explained, "If you actually obtain a copy of your criminal record data, it says at the bottom of the document that 'use for any other purpose is prohibited,'" adding, "That means a criminal record check cannot be demanded except in the exceptional cases prescribed by law." He said, "As a rule, whether it is recruiting a babysitter between individuals or hiring by a private company, the very demand for criminal record data is not allowed," and "The intent of the law from the outset is to prevent the demand itself, not to permit an exchange based on consent."

Other experts said that the demand for criminal record data is not itself grounds for punishment, but that actually obtaining it is the problem. Attorney Shin Dong-woo of DAEON Law Firm drew a distinction between 'demanding' and 'obtaining,' saying, "Demanding criminal record data is not in itself designated as grounds for punishment, but if criminal record data is actually obtained, there is a possibility of illegality." On the illegality of obtaining the data, Attorney Shin explained, "If a job seeker actually submits criminal record data intended for verifying their own record, merely receiving that data constitutes 'obtaining for a purpose other than the prescribed one,' and for the job seeker it constitutes 'use for a purpose other than the prescribed one.'"

Attorney Choi Ji-young of Beopseung also said, "Whether the act of demanding the submission of criminal record data in a job posting is itself contrary to the Lapse Act is open to dispute." However, like the other attorneys, Attorney Choi took the view that the act of obtaining the data may be illegal, saying, "If another person's criminal record data is actually obtained pursuant to the demand, it may violate Article 6, Paragraph 3 and Article 10, Paragraph 2 of the Lapse Act, among others, and the person who submitted it is also in breach of Article 6, Paragraph 4 of the same Act."

Attorney Chae Da-eun likewise explained that what the Lapse Act prohibits lies in 'obtaining' and 'using' rather than the 'demand' itself. "The Lapse Act has no provision that directly punishes the act of demanding the submission of criminal record data," Attorney Chae said. "It is difficult to conclude that merely stating 'criminal background check certificate required' in a job posting constitutes a violation of the Lapse Act." She added, however, "If the demand actually leads to submission, a Lapse Act violation issue can arise for both the submitter (job seeker) and the recipient (employer)."

Attorney Chae said, "A job seeker's act of obtaining their own criminal record data is itself lawful under Article 6, Paragraph 1, Item 4, but if it is obtained from the outset for the purpose of submission in a hiring review, it may constitute obtaining for use for a purpose other than the self-verification purpose permitted by Article 6, Paragraph 1." She added, "If the employer uses the submitted criminal record data for purposes other than the hiring review or provides it to a third party, an additional issue of violating Article 6, Paragraph 4 of the Lapse Act may also arise."

The opinions of six experts on an individual's act of demanding and obtaining criminal record data. Graphic by Kim Yeo-jin

Of the six attorneys Danbi News consulted for a legal interpretation, on the question of whether an individual may demand criminal record data when recruiting a babysitter in a private capacity, three attorneys said the demand itself may be illegal in light of the Lapse Act, two said that "looking at the act of demanding alone, it is not designated as grounds for punishment," and one said it is "open to dispute." But on an individual's obtaining another person's criminal record data, all six agreed without exception that it is illegal. Even if it is done by mutual agreement between private parties, the recipient (employer) commits the 'obtaining for another purpose' prohibited by law, and the giver (job seeker) commits 'use for another purpose.'

○ The 'child care worker certificate': a lawful way to verify criminal history

So is there no lawful way at all for an individual recruiting a babysitter to verify criminal history? There is, in fact, a way: checking whether the person holds a 'child care worker certificate.'

The national child care worker certification is a newly established system that took effect on April 23 of this year. Kim Chae-min, an assistant manager on the certification operations team in the child care support division of the Korea Institute for Healthy Family, explained the purpose of the system: "It is a system that improved the management framework in recognition of the anxiety parents feel about child care provided in the private sector. The goal is to secure the professionalism of care workers on the basis of an officially recognized certificate and to provide safer child care services."

To obtain a child care worker certificate, a person must complete 160 hours of in-person training at an educational institution recognized by the Ministry of Gender Equality and Family. As of this year, there are 71 child care worker training institutions nationwide. In addition to in-person training, 16 hours of online training must also be completed. The 'KIHF Education Platform,' operated by the Korea Institute for Healthy Family, provides the online training for child care workers.

After the training course is completed, the Korea Institute for Healthy Family checks for disqualifying grounds such as criminal records. Under Article 6 of the Child Care Support Act, persons with a record of sex offenses or child abuse crimes, persons with mental illness and persons addicted to psychotropic drugs are all regarded as disqualified. Obtaining a child care worker certificate therefore effectively means having passed a criminal record verification process. Song Jin-woo, a deputy director in the child care support division of the Family Policy Bureau at the Ministry of Gender Equality and Family, said, "During the certification process we verify everything, including criminal record inquiries and drug-related health examinations. A certificate holder can effectively be regarded as having completed verification on these points."

Anyone recruiting a care worker can ask the applicant to show their 'child care worker certificate' and can easily verify its authenticity. Deputy Director Song explained, "A QR code is issued along with the certificate so that anyone can easily verify its authenticity. It makes it possible to effectively verify criminal history lawfully, without demanding criminal record data." As of the 3rd of this month, roughly 2,700 certificates had been issued.

◯ Job posts demanding criminal record data: how far does platform liability extend?

Taking our reporting together, a platform likewise cannot demand criminal record data for an individual job posting, and it is not currently possible for an employer to require the platform to disclose a babysitter's criminal record. This is because a platform is a business registered as a job information provider, online sales business or the like, not a child- and youth-related institution with the authority to demand a criminal background check certificate. Han Seung-soo, a manager at Danggeun Market, explained, "Verifying an individual's criminal record is possible only for institutions granted authority under the relevant statutes, so a platform legally cannot collect or store such information."

Even if someone posts a job ad demanding criminal record data, it is difficult to hold the platform legally liable. Attorney Shin Dong-woo of DAEON Law Firm responded on this point, "With the governing provisions ambiguous, it would be difficult to impose legal liability."

Attorney Chae Da-eun of Law Firm Hanjoong said of platform operators (such as Danggeun Market) leaving such job posts up, "There is no direct penalty provision under the Lapse Act," adding, "An issue of indirect liability could be raised in connection with the duty to prevent the circulation of illegal information under the Act on Promotion of Information and Communications Network Utilization and Information Protection, but at present it is hard to say definitively."

Attorney Choi Ji-young of Law Firm Beopseung explained, "If a platform operator is aware of an unlawful hiring condition such as 'criminal background check certificate required' and nonetheless leaves it up or encourages it, whether it constitutes aiding and abetting could theoretically be an issue," adding, "But to establish that, the platform operator's intent must be proven, so in practice the likelihood of punishment is low."

[Verdict]

Obtaining another person's criminal record data is, as a rule, not permitted under the Lapse Act. If the practice of checking individuals' criminal records were to spread across society, ex-offenders could not escape negative perceptions such as the stigma effect, and their normal return to society could become difficult.

The Lapse Act does, however, provide exceptions under which another person's criminal record data may be checked or obtained. The scope of those exceptions follows what the Lapse Act itself prescribes or what is stipulated in other statutes. When a registered institution providing child care services hires a babysitter or child care worker, it is obligated under the Act on the Protection of Children and Youth against Sex Offenses and the Child Welfare Act to check for a history of sex offenses and child abuse crimes. This is intended to protect children from crime; the institution must either obtain the prospective employee's consent to a criminal record check and be notified of the results by the Korean National Police Agency, or the individual must obtain their own criminal record data and submit it to the institution.

Unlike an institution, however, an individual seeking a babysitter through an online platform or the like has no legal standing to check a job seeker's criminal record. Because an individual has not acquired the legal status of a child- and youth-related institution, they are granted neither the duty nor the authority to check criminal history under the Act on the Protection of Children and Youth against Sex Offenses and the Child Welfare Act.

In response to online opinions that even an individual should be able to run a criminal record check, given that they are hiring a babysitter to protect a child, all six attorneys Danbi News consulted for a legal interpretation said that exchanging criminal record data is unlawful. They said that even if it is done by agreement between private parties, if criminal record data changes hands, the recipient (employer) commits the 'obtaining for another purpose' prohibited by law and the giver (job seeker) commits 'use for another purpose,' so there is a possibility of a legal violation. As for merely making the demand without actually obtaining the data, some attorneys regarded it as a violation of the law, saying "the intent of the law from the outset is to prevent the demand itself," while others expressed the view that it is "open to dispute."

It is not the case that an individual recruiting a babysitter has no way at all to verify criminal history. Requiring a 'national child care worker certificate' makes it possible to lawfully confirm whether the person has a record of sex offenses or child abuse crimes. The national child care worker certificate is granted to those who have completed care-related training and have had their criminal history verified. Checking whether someone holds the certificate therefore has effectively the same effect as checking for a record of sex offenses or child abuse crimes.

Taking our reporting together, an individual's act of demanding criminal record data from a babysitter can actually lead to an exchange (submission and obtaining) of criminal record data, and in light of the legislative intent of the Lapse Act, demanding criminal record data is, as a rule, not permitted. The statement 'demanding a criminal background check certificate is illegal' is therefore largely grounded in fact. However, the core acts directly prohibited by the Lapse Act are the obtaining and use of criminal record data, and legal experts were divided on whether the act of demanding it is itself unlawful. Since the act directly tied to illegality lies in the obtaining and use of criminal record data rather than the demand itself, the claim under review, 'demanding a criminal background check certificate is illegal,' is broadly consistent with the facts but involves a minor omission of context. Danbi News therefore rates the claim 'Mostly True.'

Source: Danbi News (https://www.danbinews.com)