A. Background ofthe Case
In this case, theConstitutional Court held that Article 241 of the Criminal Act, which punishesadultery or fornication with a punishment of no more than two years ofimprisonment (hereinafter referred to as the “Adultery Provision”), violatesthe Constitution.
Before this Courtdecision, the Constitutional Court had decided on four occasions that adulteryset forth in the Criminal Act does not violate the Constitution (89Hun-Ma82,September 10, 1990; 90Hun-Ka70, March 11, 1993; 2000Hun-Ba60, October 25, 2001;and 2007Hun-Ka17 et al., October 30, 2008).
In its decisions89Hun-Ma82 and 90Hun-Ka70, the Court held that while the Adultery Provision didrestrict the right to sexual self-determination of individuals, it wasinevitable to regulate the adultery of those with spouses to sustain the virtuesof sexual morality or prevent the social harm that adultery may cause. Thus,the Court reasoned that the Adultery Provision constituted the minimum amountof restriction that should be imposed on sexual self-determination. JusticesHan Byung-Chae and Lee Shi-Yoon dissented, saying that the criminal punishmentof adultery was constitutional, but providing only statutory punishment availableas imprisonment was unconstitutional; meanwhile, Justice Kim Yang-Kyundissented entirely, saying that the crime of adultery itself wasunconstitutional. The Court’s opinion was that the right to sexualself-determination can be restricted to maintain and guarantee marriage andfamily life, although such right is included in the right to pursue happinessstipulated in Article 10 of the Constitution. In the decision 2000Hun-Ba60,Justice Kwon Seong stated the dissenting opinion that the crime of adultery inessence pointed to the adultery of married women, and this should be the subjectof criticism and moral repentance, not a crime to be punished through theintervention of the state. Thus, the Adultery Provision deprives one of theright to sexual self-determination, effectively violating the Constitution.
As to the decision2007Hun-Ka17 et al., a majority (5) of the justices (9) declared that theAdultery Provision is unconstitutional, although the number failed toconstitute a quorum (6) to deliver a decision of unconstitutionality.Specifically, Justices Kim Jong-Dae, Lee Dong-Heub, and Mok Young-Joon statedthat the Adultery Provision was unconstitutional for subjecting the intimatedomain of an individual’s sexual life to criminal punishment. Justice SongDoo-Hwan stated an opinion of unconstitutionality because he considered thestatutory sentence of imprisonment, with no other option, to be excessivelysevere, although the criminal punishment of adultery itself was constitutional.Justice Kim Hee-Ok shared the opinion of unconstitutionality on the groundsthat imposing criminal punishment on acts that should at most be subject tomoral reprehension does not conform to the Constitution.
B. Summary ofthe Decision
The ConstitutionalCourt decided that the Adultery Provision infringes upon the right to sexualself-determination and to secrecy and freedom of privacy, for the followingreasons.
Justices Park Han-Chul,Lee Jin-Sung, Kim Chang-Jong, Seo Ki-Seog and Cho Yong-Ho declared that thereis no longer any public consensus regarding the criminalization of adultery,along with the change of public perception on social structure, marriage, andsex and the growing awareness on the idea that sexual self-determination shouldbe valued. It should also be left to the free will and affection of the personin question to decide whether to maintain marriage and family, which are the legallyprotectable interests of the crime of adultery, and the matter should not beforced by another through criminal punishment. In addition, because the currentrate of punishing adultery and the degree of social condemnation againstadultery have decreased considerably, it is hard to anticipate a deterrenceeffect from the perspective of criminal policy. Therefore, the criminalpunishment of adultery infringes on the right to sexual self-determination aswell as secrecy and freedom of privacy as it violates the principle againstexcessive restriction.
Regarding the Court’sdecision, Justice Lee Jin-Sung presented the concurring opinion that practicesregarding compensation, division of property and custody arising out of thedissolution of a family due to adultery should be improved, and a system toprotect and support spouses and children should be developed.
Justice Kim Yi-Suexpressed an opinion of unconstitutionality, as follows.
Certain types ofadultery, which are committed in a situation where marriage is de facto dissolved and the spousalobligation of faithfulness no longer exists, and fornication by an unmarriedperson, are neither morally reprehensible nor anti-social. Nevertheless, theprovision at issue uniformly punishes all modes of adultery and fornication.This violates the Constitution for the excessive exercise of the State’scriminal punishment authority in that it excessively restricts the right tosexual self-determination.
Justice Kang Il-Wonalso stated an opinion of unconstitutionality, as follows.
The meaning of condoneor pardon, which constitutes the prosecution requirement, is not clearlydefined, suggesting that the people subject to the law cannot predict the scopeand limits of governmental power. Therefore, the provision at issue infringeson the principle of clarity. In addition, the provision at issue states thatall modes of adultery and fornication shall be uniformly punished byimprisonment. It excludes the possibility to consider singularities andspecificities of individual cases, violating the principle of proportionalitybetween responsibility and punishment.
In contrast, JusticesLee Jung-Mi and Ahn Chang-Ho presented a dissenting opinion, on the groundsthat the act of adultery would damage the social system, which is marriagebased on monogamy; it is difficult to assume that the legislature’s judgment tocriminally punish such an act is arbitrary; in certain cases, adultery wouldnot be punished for the lack of illegality; and the punishment is not excessivelysevere.
C. Aftermath ofthe Case
The crime of adulteryhad been the subject of endless controversy, despite the numerous occasions onwhich the Court held the Adultery Provision as constitutional. The controversywas finally settled when the Court declared the provision to be unconstitutional.Some evaluated that this decision was favorable to fundamental rights (ChungPil-Woon and Cho Jae-Hyun, A CriticalSummary of Leading Constitutional Decisions in 2015).
The Criminal Act wasamended by Act No. 13719 on January 6, 2016, and the Adultery Provision wasdeleted accordingly. Under the former provision of Article 47 of theConstitutional Court Act, any Act or provision relating to criminal punishmentdecided as unconstitutional shall lose effect retrospectively withoutlimitations. The above provision was amended by Act No. 12597 on May 20, 2014.Under the amended provision, any relevant Act or provision previously decidedas constitutional shall lose effect retrospectively on the day following thedate such decision is made. As a result, Article 241 of the Criminal Act losteffect retrospectively on the day following October 30, 2008, when the previousdecision on constitutionality, 2007Hun-Ka17 et al., was delivered.
Despite theaforementioned amendment, however, there was still controversy over whether toallow retrial for a case for which a judgment was finally affirmed after thebase point for retroactive effect, but a criminal act had been committed beforethe base point. In response, the Supreme Court held, in its decision 2015Mo1475delivered on November 10, 2016, that “if a judgment of guilt was finallyaffirmed after the day following the date a decision of constitutionality wasdelivered, such a judgment was made under any Act or provision which losteffect retroactively due to a decision of unconstitutionality although thecriminal act was committed before the judgment. As such a judgment constitutesa ‘finally binding judgment rendered pursuant to the Act or provision decidedas unconstitutional,’ a request for retrial for the relevant case can be made.”