South Korea’s Criminalization of Tattooing

by Nicholas Sturos

South Korean tattoo laws are some of the strictest among developed nations.[1] Dating as far back as 935 CE, where tattoos were used as a form of criminal punishment,[2] South Korea’s history has steeped in contempt for tattoos. [3] While a stigma around tattoos persists in contemporary South Korean culture, the younger generations have begun to embrace tattoos.[4] Currently, the Korean tattoo industry is ripe with artistry and innovative styles such as the “K-tattoo.”[5] However, this thriving culture is damned to Korea’s criminal underbelly for one simple reason — only doctors are legally allowed to tattoo.[6]

Under South Korea’s Medical Act, non-medical personnel are prohibited from performing medical practices.[7] The Korean Supreme Court had interpreted the term medical practice so broadly that the term encompasses the act of tattooing.[8] Consequently, only licensed medical personnel can legally tattoo.[9] Any person who tattoos without a medical license can be criminally fined up to 50 million won ­— $41,300 — or even imprisoned up to a life sentence.[10] The broad interpretation of medical practice infringes upon the country’s constitutional rights to the freedom in choice of occupation[11] and freedom of art.[12] Because the Medical Act does not explicitly prohibit tattooing without a medical license, the near ban on tattooing is a judicial interpretation problem, not a legislative one.[13]

On March 31, 2022, in a 5-4 split, the Constitutional Court upheld the constitutionality of the Medical Act and the interpretation of tattooing as a medical practice.[14] The decision was based on the consolidation of six cases with the same issues.[15] All the claimants in these cases were tattoo artists or individuals that ran tattoo businesses without medical licenses.[16] The claimants argued, in at least some respect, that the Medical Act as interpreted violated their constitutional freedom to choose their occupation.[17]

Article 15 of South Korea’s constitution states that “[a]ll citizens shall enjoy freedom of occupation.”[18] When a statute is excessively prohibitive of a constitutional right, that statute will be held unconstitutional.[19] For a statute to survive scrutiny under this principle of excessive prohibition, the statute would have to satisfy all of the following elements: legitimacy of purpose, adequacy of means, minimal infringement, and the balance of legal interest.[20]

The Court determined in the 2022 tattooing case that the two interests at stake were the state’s interest in protecting the health of the public, and the claimants’ interest in the freedom to choose their occupations.[21] After finding the statute had a legitimate purpose, adequate means of achieving that purpose, and arguing it was not the role of the courts to create a less restrictive regime to tattoo, the Court balanced the two interests and held the state’s interest trumped the constitutional restriction on the claimants; therefore, the statute as interpreted remained constitutional.[22]

A tattoo artist completing a tattoo session. Courtesy to Djordje Petrovic, Pexels.com.

The dissenters analyzed the issue under a “new perspective.”[23] The dissent explained that tattooing is different than other medical procedures because it “requires techniques that enable creative and beautiful expression beyond techniques for safety procedures, and these additional techniques are not necessarily equipped by medical personnel.”[24] Further, the dissenters argued that other countries have systems and regulations that ensures the safety of tattooing without requiring tattooists to have a medical license.[25] The dissent also pointed out that requiring a person to become a doctor before he or she can become a tattoo artist is “no different than prohibiting the tattoo [sic] business.”[26] For these reasons, the dissent agreed that the Medical Act as applied here was excessively prohibitive of the claimants’ freedom of occupation and was, therefore, unconstitutional.[27]

The dissent’s argument is buttressed by the fact that tattooing doctors are virtually non-existent in South Korea. Doctor Cho Myung-shin became one of the rare legal tattoo artists after seeing a “beautiful rose tattoo” that his client wanted to get removed.[28] Doctor Cho Myung-shin realized that “tattoos can be pieces of artwork,” and tracked down the artist to learn how to tattoo himself.[29] Korea JoongAng Daily stated Doctor Cho Myung-shin is “perhaps the only of his kind.”[30] Moreover, under South Korea’s “U-Medi” system for finding specialist doctors, the only result for medical tattoo doctors is for Doctor Myung Shin Cho.[31] A possible explanation for the absence of legal tattoo artists is the high cost required to become a license doctor, only for that tattooist to make an artist’s salary.[32] This licensing requirement essentially creates a “ban” on the entire occupation of tattooing.[33]

As with the infringement upon the freedom of occupation, limiting the art of tattooing only to medical professionals violates the right to freedom of art. Article 22 of South Korea’s constitution states that “[a]ll citizens shall enjoy freedom of learning and the arts.” [34] When only medical personnel are allowed to create tattoos, an art, then only medical personnel can enjoy the freedom of that art form.[35] This is a direct violation of the plain meaning of “all citizens.”[36] Furthermore, the dissenting judges in the 2022 case recognized the artistry in tattooing.[37] They explain that creating tattoos requires “creative or beautiful expressions” and “it is necessary to allow non-medical people with rich artistic senses to perform tattooing in a hygienic and safe manner.”[38] They further reasoned that if only medical personnel who “emphasize only safety” are permitted to tattoo, then the demand for the artistry of tattooing will not adequately be met.[39]

Funny enough, the dissent mentioned a Japan Supreme Court case where Japan changed its position on tattooing when it held that tattooing was no longer considered a medical procedure.[40] Japan had a similar law to South Korea where it required all tattoo artists to have a medical license based on a judicial interpretation of their medical statute.[41] Japan’s court reasoned that “tattoos require artistic skills different from medicine and that it cannot be assumed that doctors do the act exclusively.”[42]

Tattoos are a form of art.[43] By interpreting tattooing as a medical practice, only licensed doctors can legally create tattoos.[44] Therefore, this interpretation as applied to tattoos does not permit “all citizens . . . [the] freedom of the arts.”[45]

The interpretation of medical practice in South Korea’s Medical Act that classifies tattooing as a medical practice infringes upon Korean constitutional freedoms of occupation and art for all its citizens.[46]  The Medical Act does not expressly require a person to have a medical license to tattoo; the constitutional infringements are from the broad interpretation.[47] Therefore, the term medical practice should be re-interpreted narrowly to avoid the constitutional infringements. Medical practice could be interpreted as acts that are intended as surgeries, the treatment of disease, or maintenance of health.[48] Under a narrow interpretation of medical practice, all citizens would have freedom to the art of tattooing, and the occupation of tattooing would no longer be indirectly prohibited by the country. Furthermore, removing the medical license barrier for tattooing would call the legislature to create an alternative qualification system for tattooing.[49] An alternative qualification system would standardize and regulate the nearly 50,000 tattoo artists that are currently operating without regulation.[50] Equating tattooing to a medical practice ignores the reality of tattooing. Tattooing is an art created by artists; It is not a medical practice performed by doctors.

[1] See Kim Byung-taek, Tattoos Should be Recognized as Physical Art and Freedom of Expression, Ynam News (Jan. 13, 2022) translated in Google, https://www.ynamnews.co.kr/news/articleView.html?idxno=54472; https://www.koreatimes.co.kr/www/nation/2023/08/113_333212.html; https://www.savedtattoo.com/countries-where-tattoos-are-illegal-or-limited/; Yeni Seo & Minwoo Park, S.Korea Court Upholds Tattooing Ban, Reuters (March 31, 2022), https://www.reuters.com/world/asia-pacific/skorean-court-upholds-tattooing-ban-2022-03-31/; see generally Countries Where Tattoos are Illegal or Limited: Where Can a Tattoo Get you in Trouble, Saved Tattoo (Jan. 9, 2023), https://www.savedtattoo.com/countries-where-tattoos-are-illegal-or-limited/.

[2] See FRIEDERIKE GLIETSH, THE KOREAN TATTOO CULTURE: A HISTORICAL OVERVIEW ON THE DEVELOPMENT AND SHIFT OF PERCEPTIONS ON TATTOOS IN KOREAN SOCIETY 9 (2020).

[3] Glietsh, supra note 2, at 1.

[4] Judy Park, Signs of Social Change on the Bodies of Youth: Tattoos in Korea, 15(1) Visual Commc’n 71, 76 (2015).

[5] See generally Christine Chung, Tattoos, Still Illegal in South Korea, Thrive Underground, N.Y. Times (May 13, 2022), https://www.nytimes.com/2022/05/13/world/asia/south-korea-tattoo-artists.html.

[6] Id.

[7] Medical Service Act, art. 27 para. 1 (S. Kor.), translated in Korea Legislation Research Institute’s database, https://elaw.klri.re.kr/eng_mobile/ganadaDetail.do?hseq=39874&type=abc&key=MEDICAL%20SERVICE%20ACT&param=M#:~:text=The%20purpose%20of%20this%20Act,protect%20and%20improve%20public%20health.

[8] Daebeobwon [S. Ct.], May 22, 1992, 91do3219 (S. Kor.), https://casenote.kr/%EB%8C%80%EB%B2%95%EC%9B%90/91%EB%8F%843219.

[9] Daebeobwon [S. Ct.], May 22, 1992, 91do3219 (S. Kor.), https://casenote.kr/%EB%8C%80%EB%B2%95%EC%9B%90/91%EB%8F%843219; Christine Chung, supra note 5.

[10] Bogeonbeomjoe dansoge gwanhan teugbyeoljochibeob [Act on Special Measures for Crackdown on Health Crimes] art. 5 (S. Kor.), translated in National Law Information Center’s comprehensive database, https://www.law.go.kr/%EB%B2%95%EB%A0%B9/%EB%B3%B4%EA%B1%B4%EB%B2%94%EC%A3%84%EB%8B%A8%EC%86%8D%EC%97%90%EA%B4%80%ED%95%9C%ED%8A%B9%EB%B3%84%EC%A1%B0%EC%B9%98%EB%B2%95/#:~:text=%EC%A0%9C5%EC%A1%B0(%EB%B6%80%EC%A0%95%EC%9D%98%EB%A3%8C%EC%97%85%EC%9E%90%EC%9D%98%20%EC%B2%98%EB%B2%8C)%20%E3%80%8C%EC%9D%98%EB%A3%8C%EB%B2%95,%EC%9D%98%20%EB%B2%8C%EA%B8%88%EC%9D%84%20%EB%B3%91%EA%B3%BC%ED%95%9C%EB%8B%A4; see also Yeni Seo & Minwoo Park, S.Korea Court Upholds Tattooing Ban, Reuters (March 31, 2022), https://www.reuters.com/world/asia-pacific/skorean-court-upholds-tattooing-ban-2022-03-31/.

[11] See infra notes 18-20, 28-34 and accompanying discussion.

[12] See infra notes 35-47 and accompanying discussion

[13] See Kim Byung-taek, supra note 16; see also Baek Kyounghee & Jang Yeon-hwa, A Study on the Attitude of Precedents Regarding the Significance and Overlapping Aspects of Western and Oriental Medical Practices, 22 Korean J. Med. L. 123, 126 (2014), translated in Google.

[14] Hunbeobjaepanso [Const. Ct.], March 31, 2022, 2017Hunma1343 (S. Kor.), https://casenote.kr/%ED%97%8C%EB%B2%95%EC%9E%AC%ED%8C%90%EC%86%8C/2017%ED%97%8C%EB%A7%881343; see also Yeni Seo & Minwoo Park, supra note 1.

[15] Hunbeobjaepanso [Const. Ct.], March 31, 2022, 2017Hunma1343 (S. Kor.), https://casenote.kr/%ED%97%8C%EB%B2%95%EC%9E%AC%ED%8C%90%EC%86%8C/2017%ED%97%8C%EB%A7%881343.

[16] See Id.

[17] Id.

[18] Daehanminkuk Hunbeob [Hunbeob] [Constitution] art. 15 (S. Kor.), https://www.refworld.org/docid/3ae6b4dd14.html.

[19] Park Seon-cheol, Significance and Limitations of the Excessive Prohibition Principle, Jipyong Newsletter, Constitutional Column 1 (2012).

[20] Id.

[21] Hunbeobjaepanso [Const. Ct.], March 31, 2022, 2017Hunma1343 (S. Kor.), https://casenote.kr/%ED%97%8C%EB%B2%95%EC%9E%AC%ED%8C%90%EC%86%8C/2017%ED%97%8C%EB%A7%881343.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Lee Jae-Lim, [Turning 20] The Man With the Rose Tattoo, Korea JoonAng Daily (June 19, 2022), https://koreajoongangdaily.joins.com/2020/06/19/culture/features/Cho-Myungshin-doctor-tattooist/20200619170509389.html.

[29] Id.

[30] Id.

[31] Medical Tattoo in Korea, U-Medi, https://www.u-medi.com/medical-tattoo-in-korea?keyword_type=all&keyword=tattoo (last visited Nov. 5, 2022).

[32] To become a licensed doctor in South Korea, an artist would need to complete two years of premedical courses or a four-year bachelor’s degree and a four-year medical degree. Soonman Kwon, Tae-Jin Lee, & Chang-yup Kim, Republic of Korea Health System Review in Health Systems in Transition, Asian Pacific Observatory on Health Systems and Policies vol. 5, no. 4, 2015 at 56, https://apps.who.int/iris/bitstream/handle/10665/208215/9789290617105_eng.pdf?sequence=1&isAllowed=y. Based on tuition costs at Seoul National University it would cost about 78,960,062.39 KRW or 55,409.60 USD to receive a medical degree. See Undergraduate Tuition Fee Chart for 2015 Spring Semester, Seoul National University https://en.snu.ac.kr/webdata/uploads/eng/file/2020/02/Undergraduate_Tuition_2015_Spring.pdf (last visited Sept. 7, 2023); conversion from KRW to USD in Google, https://www.google.com/search?q=krw+to+usd&rlz=1C1VDKB_enUS956US956&oq=krw+to+usd&aqs=chrome..69i57j0i10i512l9.2734j1j7&sourceid=chrome&ie=UTF-8. The average salary of a tattoo artist in South Korea is 24,774,716 KRW or 17,393.95 USD. See Tattoo Artist, Salary Expert https://www.salaryexpert.com/salary/job/tattoo-artist/south-korea#:~:text=The%20average%20tattoo%20artist%20gross,anonymous%20employees%20in%20South%20Korea (last visited Sep. 7, 2023).

[33] See generally Yeni Seo & Minwoo Park, supra note 1.

[34] Daehanminkuk Hunbeob [Hunbeob] [Constitution] art. 22 (S. Kor.).

[35] See Daebeobwon [S. Ct.], May 22, 1992, 91do3219 (S. Kor.), https://casenote.kr/%EB%8C%80%EB%B2%95%EC%9B%90/91%EB%8F%843219; Dana Gerber, The Art of Tattooing on ‘an ever-changing canvas,’ Boston Globe (March 29, 2022), https://www.bostonglobe.com/2022/03/29/arts/art-tattooing-an-ever-changing-canvas/.

[36] Daehanminkuk Hunbeob [Hunbeob] [Constitution] art. 22 (S. Kor.), https://www.refworld.org/docid/3ae6b4dd14.html.

[37] Hunbeobjaepanso [Const. Ct.], July 21, 2022, 2022 Heon-ba 3 (S. Kor.), https://casenote.kr/%ED%97%8C%EB%B2%95%EC%9E%AC%ED%8C%90%EC%86%8C/2022%ED%97%8C%EB%B0%943.

[38] Id.

[39] Id.

[40] Hunbeobjaepanso [Const. Ct.], March 31, 2022, 2017Hunma1343 (S. Kor.), https://casenote.kr/%ED%97%8C%EB%B2%95%EC%9E%AC%ED%8C%90%EC%86%8C/2017%ED%97%8C%EB%A7%881343.

[41] See Ambrose Leung, The Supreme Court of Japan Has Just Ruled Tattooing Legal, Hype Beast (Sep. 18, 2020), https://hypebeast.com/2020/9/supreme-court-of-japan-tattooing-now-legal-news.

[42] Id.

[43] See Dana Gerber, supra note 35.

[44] See Junhyup Kwon, Why Does South Korea Ban Tattoos? VICE (April 1, 2022), https://www.vice.com/en/article/qjb5dd/why-does-south-korea-ban-tattooing.

[45] Daehanminkuk Hunbeob [Hunbeob] [Constitution] art. 22 (S. Kor.), https://www.refworld.org/docid/3ae6b4dd14.html.

[46] See supra notes 18-20, 28-47 and accompanying discussion.

[47] See Kim Byung-taek, Tattoos Should be Recognized as Physical Art and Freedom of Expression, YNAM NEWS (Jan. 13, 2022) translated in Google, https://www.ynamnews.co.kr/news/articleView.html?idxno=54472.

[48] Hunbeobjaepanso [Const. Ct.], March 31, 2022, 2017Hunma1343 (S. Kor.), https://casenote.kr/%ED%97%8C%EB%B2%95%EC%9E%AC%ED%8C%90%EC%86%8C/2017%ED%97%8C%EB%A7%881343.

[49] See Christine Chung, supra note 5.

[50] See Yeni Seo & Minwoo Park, supra note 1.