Adultery and the Constitution: A Review
on the Recent Decision of the Korean
Constitutional Court on ‘Criminal
Adultery’
Seokmin Lee*
Abstract
The Korean Constitutional Court (KCC) recently ruled in 27-1(A) KCCR 20, 2009Hun-
Ba17· 205 (Consolidated), February 26, 2015 (hereinafter the “2015Decision”), that Article
241 of the Criminal Act related to adultery is unconstitutional due to its abuse of sexual
autonomy and the freedom and privacy of personal life. It was a change of stance from the
previous constitutional interpretations upheld in over four judicial rulings.
In Korea, the legislature and executive are often criticized for their lack of contribution to
decriminalization. They are in fact responsible for an increase in the criminal law. Therefore,
the significance of this recent additional ‘decriminalizing’ decision by the Constitutional Court
must be highlighted, providing a crucial step towards decriminalization.
This 2015Decision on unconstitutionality reflects the trend of the rest of the world where
many countries are banning the criminal regulation of adultery and the fact that some doubts
are cast on whether the regulation is helpful for maintaining household integrity and marriage
purity. The decision also reflects the criticism that the criminal law intervenes in the privacy of
the individual and represents an abuse of the state’s punishment power. It also reflects a
weakening of the justification in the recent era for protecting women as a socially vulnerable
class. There are still various opinions regarding the appropriateness of abolishing the criminal
regulation of adultery, but the most important fact is that it has been abolished in Korea by this
landmark decision of the KCC.
Key Words: Adultery, Constitutional Court of Korea, right to privacy, sexual self-
determination, proportionality, 2009HunBa17, Protection of Marriage and Family System
Manucript received: May 4, 2016; review completed: June 7, 2016; accepted: June 20, 2016.
Journal of Korean Law | Vol. 15, 325-353, June 2016
* Ph.D. in Law, Research Officer at the Constitution Research Institute of the
Constitutional Court of Korea.
326 | Journal of Korean Law Vol. 15: 325
I. Introduction
1. Prologue
The Korean Constitutional Court (KCC) has recently made the decision
(Decision of Feb. 26, 2015, 2009Hun-Ba17· 205 (Consolidated) (hereinafter
the “2015Decision”)
1)
) that Article 241 of the Criminal Act related to
adultery goes against the constitution due to its abuse of sexual autonomy
and the freedom and privacy of personal life. It was a change of stance from
the previous constitutional decisions ruled over four times.
Adultery is defined generally in legal academia and praxis as the “[v]
oluntary sexual intercourse between a married person and someone other
than the person’s spouse.”
2)
In the meantime, the criminal regulation of
adultery
3)
has been deemed constitutional by the Constitutional Court four
times, where six Justices provided constitutional opinions for the
1990Decision
4)
and the 1993Decision
5)
and eight Justices gave constitutional
opinions for the 2001Decision.
6)
However, in the most recent decision,
known as the 2008Decision,
7)
four Justices ruled it as constitutional, four
Justices ruled it as unconstitutional, and one Justice provided constitutional
discordance adjudication that aroused interest from the public about the
decision from the Constitutional Court.
1) This “2015Decision” has not yet (as of March 2016) been translated officially by the
KCC. It is expected that the official translation will be published in printed form by January
2017 at the latest. And in this article, I will use “YYYYDecision”(i.e. without gap) as
abbreviation of the specific frequently mentioned decisions.
2) See BlacK’s laW dictionary 62 (10th ed., 2014).
3) For a historical perspective about adultery,
see, e.g., Gung-Sik Jung, Hankuk-eui-
kantongchoe-eui Beopjesajeok Kochal
[Historical Review on the Crime of Adultery in Korea], in dong-
W
oon shin, naKtaeJoe Mit KantongJoe e KWanhan yeonKU [a stUdy on the adUltery and the
a
Bortion froM the VieWpoint of criMinal laW reforM in Korea] (1991); Kuk Cho, The Crime of
Adultery in Korea: Inadequate Means for Maintaining Morality and Protecting Women
, J. Korean l.
2, 2002, at 84-86.
4) Constitutional Court of Korea, 89Hun-Ma82, Sep. 10, 1990.
5) Constitutional Court of Korea, 90Hun-Ga70, Mar. 11, 1993.
6) Constitutional Court of Korea, 2000Hun-Ba60, Oct. 25, 2001.
7) Constitutional Court of Korea, 2007Hun-Ga17, Oct. 30, 2008.
Adultery and the Constitution | 327No. 2: 2016
In fact, after the unconstitutional ruling in 2015, the illegality of adultery
outside of the criminal law continues to be approved. It was demonstrated
in the case involving an ex-trainee of the Judicial Research and Training
Institute (JRTI),
8)
who was expelled for adultery and filed a suit against the
president of the institute due to the invalidity of the expulsion. He lost at
both the original and appellate trials, and furthermore, the civil liability of
the trainee was acknowledged.
2. Background
Since the 1960s, there has been an international tide of decriminalization
(in order to prevent the abuse of over-criminalization). Decriminalization is
the repeal or amendment (undoing) of statutes which made certain acts
criminal, so that those acts no longer are crimes or subject to prosecution,
though perhaps regulatory fines or permits might still apply. After the
Second World War ideologies of liberalization of criminal law or demorali-
zation were disseminated.
9)
The idea of “decriminalization,” that ‘actions
that are unethical yet do not violate the benefit and protection of the law
should not be criminalized’, has been widespread internationally. South
Korea is also engaged in discussions on decriminalization.
According to criminal policy studies, “criminalization” refers to the
conditions in which new types of violations of the benefit and protection of
the law occur due to changes in the social structure. In order to deal with
the rise of potential situations, new legislation is passed to regulate criminal
justice, and this is the first step in “criminalization.” On the other hand, due
to changes in legal strategy to reduce the range of the states’ administrative
justice, there are cases in which what was considered a crime is now
permitted. This is called “decriminalization.” It mainly emerged due to
8) Under the then judiciary exam (as of around 2010), the number of new lawyers
admitted each year was limited to 1,000. Then, successful candidates had to complete the
mandatory two years of training courses at the Judicial Research & Training Institute (JRTI) in
order to join the bar in Korea. The JRTI is managed by the Supreme Court.
9) And nation-states around the world revised their criminal laws on sexual activities. For
more information about this, for example,
see D. J. Frank, B. J. Camp & S. A. Boutcher,
Worldwide trends in the criminal regulation of sex, 1945 to 2005, aMerican sociological reVieW,
vol. 75 no. 6, 867-893 (2010).
328 | Journal of Korean Law Vol. 15: 325
criticism against the hypertrophy of criminal law, stigma theory, and the
failure of the national public execution system.
In terms of constitutional theory, this is directly related to the topic of
‘equal individual freedom’
10)
or ‘the right to pursue one’s happiness.’
11)
Because decriminalization reflects changing social and moral views about
whether an individual act, which has been claimed as one’s freedom or
pursuit of happiness, is still to be punished or not. A society may come to
the view that an act is not harmful, should no longer be criminalized, or is
otherwise not a matter to be addressed by the criminal justice system.
In relation to “decriminalization,” detailed discussion of the unconstitu-
tionality of laws that have been ruled unconstitutional by the Constitutional
Court, such as “sex under false promises of marriage” or “adultery,” now
seems practically insignificant in South Korea. However, in this writing, the
chronological order and rationale of the several constitutional decisions
made on the same topic will be discussed.
This analysis is meaningful, in that one can now determine suitable
constitutional decisions on similar moral-related topics (such as banning
prostitution, homosexual marriage, etc.) in South Korea. This can also serve
as comparative data
12)
for other countries.
3. About this paper
There are already several advanced research studies published in
Korean on the “2015Decision.”
13)
The previous studies cover the meaning
10) Constitution of the Republic of Korea, Article 11 Section 1.
11) Constitution of the Republic of Korea, Article 10 (first sentence) “All citizens shall be
assured of human worth and dignity and have the right to pursue happiness.”
12) For comparative legal perspective about adultery, for example, see Kuk Cho, The Crime
of Adultery in Korea: Inadequate Means for Maintaining Morality and Protecting Women
, J. Korean
l. 2, 83-84 (2002); A. Black, & K. S. Jung, When a Revealed Affair Is a Crime, but a Hidden One Is a
Romance: An Overview of Adultery Law in the Republic of Korea
, Int’l Surv. Fam. L., 275 (2014); J.
Corrin,
It Takes Two to Tango, But Three to Commit Adultery: A Survey of the Law on Adultery in
Post-Colonial South Pacific States
, int’l. J. of laW, policy and the faMily, 26(2), 187, 219 (2012);
anthony r. Bessette, regUlating and pUnishing adUltery in Korea and east asia, University of
Richmond School of law (2009).
13)
See Shi-Myon Ko, Heonbeobjaepansoui Hon-inbingjagan-eum Mit Gantong Deung-ui
Wiheongyeoljeong Deung-e Natanan Bibeomjoehwaui Heuleum
[De-criminalization trend in
Adultery and the Constitution | 329No. 2: 2016
and limitations of the decision of the case as well as the possibility of the
reenactment of the adultery law due to public sentiment, the retroactive
effect of the decision of the case, securing the evidence and realizing the
alimony, and other subsequent work.
Likewise, as there are plural advanced studies related to the
“2015Decision,” at least in Korean language, I would like to focus on the
difference in the logic of the written verdict of each judge on the topic of
adultery. Additionally, I would like to point out the main difference in the
logic of the “2015Decision” from those of the other four previous decisions
that deemed the “adultery provision” of the Criminal Act (Hyeong-beob) as
constitutional and provide reasons that back up the argument. Moreover,
the trend is becoming stronger in society for decriminalizing controversial
behavior (adultery, obtaining sex under false promises of marriage,
consensual homosexual acts (“sodomy”) with military service members,
prostitution), and topics related to the ‘free and equal status of the
individual’ or the ‘pursuit of happiness’ brought out in the constitution are
controversial in Korean society. Thus, the meaning of the Constitutional
Court’s decision on unconstitutionality will be discussed.
II. The former status of the adultery regulations
According to the adultery regulations in Criminal Act Article 241,
14)
the
Unconstitutional Decisions about the Crime of Sexual Intercourse under Pretence of Marriage and
Adultery
], 57 saBeoBhaengJeong, no. 1, 2016; Hie-Houn Lee, Heonbeobjaepansoui Gantongjoe
Wiheon Gyeoljeong-e Daehan Pyeongseog
[The Annotation of the Unconstitutional Decision against
Criminal Conversation of the Constitutional Court
], vol. 71 pUBlic land l. reV. (2015); Jong-Hyun
Kim,
Gantongjoe Wiheongyeoljeong-e Daehan Yeongu [A Study on Decision on Unconstitutionality
of Adultery
], 50 laW and society (2015); Rae-Young Kim, Gantongjoe Wiheongyeoljeong(Heonjae
2015. 2. 26. 2009 Heonba17 deung)ui Hyolyeog
[A Review of the Constitutional Court’s Unconstitutional
Decision on the Adultery Clause(2009Hun-Ba17 etc.(consolidated), Feb 26, 2015)
], 39 danKooK
U
niVersity laW JoUrnal, no. 3, 2015; Hyunah Yang, Poseuteu Gantongjoe Pyeji: Deuleonan
Seongjeog Jayujuui Damlongwa Mudhyeojin Pihae Baeujaui Sonhae
[Post-Adultery Law in Korea: A
Feminist Law and Society Approach
], 56 seoUl-daehaKgyo-BeophaK [seoUl laW JoUrnal], no. 3,
2015.
14) Criminal Act (enacted as Act No. 293 on September 18, 1953)
Article 241 (Adultery) ① A married person who commits adultery shall be punished by
imprisonment for not more than two years. The same shall apply to the other participant.
330 | Journal of Korean Law Vol. 15: 325
subject of criminal adultery included both a married person and a person
who had sex with the married person (though not that person’s spouse).
Therefore, in order to be considered as criminal adultery, at least one
married person had to be involved, which means adultery was based on
the subject’s status. “Married person” referred to a legal spouse, which
excluded those in unregistered marriages, cohabitants.
However, as long as the subject was legally married, it did not matter
whether the person lived with the spouse.
15)
The subject was not considered
a married person if the marriage was invalid,
16)
but on the other hand,
though the request for marriage cancellation had occurred, the subject was
considered a married person until the marriage was cancelled.
17)
In
addition, it was considered that a person who was legally married according
to foreign law was still a valid subject here.
18)
Besides, according to Criminal Act Article 241 Section 2, it was impossible
to accuse a spouse of adultery if there had been consent in advance
[“connivance (jong-yong)”] or an excuse following the act [“condonation
(yu-seo)”]. First, in terms of connivance, the Supreme Court ruled, “[I]f
there had been consent on divorce between the married couple, the consent
includes willingness to connive at the spouse’s sexual relationship with a
third person.”
19)
In other words, the Supreme Court ruled, “[I]f the married
couple are unwilling to continue marital status and consent on divorce had
been made, the consent includes expression of connivance with adultery of
either spouse regardless of their legal marital status.”
20)
Moreover, regarding connivance with adultery, the Supreme Court
ruled, “[T]he consent on divorce between the married couple does not have
② The crime in the preceding section shall be prosecuted only upon the accusation of the
victimized spouse. If the victimized spouse condones or pardons the adultery, accusation can
no longer be made.
15) Supreme Court of Korea, 79Do1848, Apr. 8, 1980.
16) Supreme Court of Korea, 82Do826, Jun. 22, 1982.
17) Supreme Court of Korea, 82Do826, Jun. 22, 1982.
18) Supreme Court of Korea, 83Do41, Dec. 13, 1983.
19) Supreme Court of Korea, 68Do859, Feb. 25,1972; Supreme Court of Korea, 77Do2791,
Oct. 11, 1977.
20) Supreme Court of Korea, 71Do2259, Jan. 31, 1972; Supreme Court of Korea, 90Do1188,
Mar. 22, 1991.
Adultery and the Constitution | 331No. 2: 2016
to be in the form of a written document. Based on several circumstances
such as the speech and action of either spouse, when both members of the
couple have been recognized for their unwillingness to continue marital
status, and when the spouse truly agrees to divorce upon the other spouse’s
request, it is considered that there had been expression of future
connivance in case either spouse commits adultery.”
21)
If there had not been
such consent, connivance is invalid even if the married couple expressed
tentative, temporary, or conditional intention to divorce.
22)
Furthermore, in terms of condonation, the Supreme Court ruled, “[C]
ondonation of adultery can be done both explicitly and implicitly, which
has no defined form of act. In order for behaviors or expressions reflecting
emotions to be considered condonation, it requires the following. First, it
requires that the person knows that the spouse had committed adultery
and has done such investigation voluntarily. Second, regardless of knowing
that there had been adultery of the spouse, true effort to continue the
marital status has to be clear and be done in trustful ways.”
23)
However, the precedent cases by the Supreme Court involving
condonation of adultery had several problems. For example, there had been
a lack of criteria to judge whether true willingness to continue the marital
status was expressed in clear and trustful ways. The definition of knowing
the exact date, place, and number of sexual encounters in order to be
recognized as condonation was also unclear.
III. Evaluating the decision of the Constitutional Court
(“2015Decision”)
Taking into account that most of current Constitutional Court Justices
are considered to possess a ‘strong tendency to be conservative,’
24)
it
21) Supreme Court of Korea, 2006Do1759, May. 11, 2006.
22) Supreme Court of Korea, 97Do2245, Nov. 11, 1997; Supreme Court of Korea,
90Do1188, Mar. 22, 1991.
23) Supreme Court of Korea, 99Do2149, Aug. 24, 1999; Supreme Court of Korea
2000Do868, Jul. 7, 2000.
24) It has been mentioned by various authors that the judges of the Constitutional Court
of Korea are to be appointed by the President or the ruling party under the current legal and
332 | Journal of Korean Law Vol. 15: 325
seemed quite surprising that seven among nine Justices decided in favor of
unconstitutionality.
Several Justices reasoned that it is difficult to realize the common good
of protecting the social marriage system through punishing adultery as a
crime, while constitutional rights such as the right to sexual decision and
freedom of privacy are over-regulated, thus the equilibrium has been lost.
1. Evaluating the majority opinion
1) Specifying restricted constitutional rights: to sexual self-determination and to
privacy
In the “2015Decision,” the majority opinion contained rulings by five
Constitutional Court Justices: Han-Chul Park, Jin-Sung Lee, Chang-Jong
Kim, Ki-Seog Seo, and Yong Ho Cho.
25)
At the beginning, the majority opinion of the “2015Decision” had to find
which specific constitutional rights were restricted by the provision at issue.
And it pointed out that the provision at issue restricts the rights to sexual
self-determination (derived from Korean Constitution Article 10) and the
right to privacy (Article 17). In the previous four decisions related to
adultery, it had been pointed out that the adultery provision restricts
mainly these two constitutional rights. And this right to sexual self-
determination, which is derived from the constitutional right to human
dignity and the right to pursue happiness (Korean CONST. Article 10
Section 1), has already been recognized by the Constitutional Court as a
fundamental right for a long time: “Self-determination is the premise of the
factual conditions and therefore the judges with conservative tendencies often acquire
overwhelming majorities in the court. One of the authors who has consistently pointed this
out is Prof. Han. See, e.g., Sang-Hie Han, Dangerous lawyers domination: Reform the
Constitutional Court of Korea!, Jugan-Gyeonghyang vol. 1108 (2015) http://weekly.khan.co.kr/
khnm.html?mode=view&artid=201412291812241&code=113 (last visited Dec. 16, 2015). See
also, e.g., Jong-Cheol Kim, Heonbeopjaepansokuseuonge Kwanhan Gaesunbangahn [A Proposal for
Reform in the Composition of the Constitutional Court], H
EONBEOPHAK-YEONKU [STUDIES ON
C
ONSTITUTIONAL LAW], Vol. 11 No. 2 9-48, 2005 (in Korean).
25) For the English spellings of the name of the judges, see http://english.ccourt.go.kr/
cckhome/eng/decisions/majordecisions/majorDetail.do (last visited Dec. 19, 2015. I followed
the example of the English version of [
Case on Prohibition of Nighttime Access to Online Games by
Juveniles
], Constitutional Court of Korea, Apr. 24, 2014, 2011Hun-Ma659, 683 (Consolidated)).
Adultery and the Constitution | 333No. 2: 2016
personality right and the individual’s right to pursue happiness. And this
includes sexual self-determination to determine whether to have sex or not
and which sexual partner to have sex with … .”
26)
2) Regarding the majority opinion made by the Constitutional Court that
criminal adultery regulations violate the Principle of Proportionality
Any restriction on the fundamental rights and the legitimate interest
which is to be protected by such restriction shall be subjected to the
proportionality test. The principle of proportionality was first established in
German law,
27)
and today it is generally accepted by many constitutional
courts in the world,
28)
including the Korean one. In Korea, it is generally
agreed that the proportionality test as the constitutional principle is
included in the Article 37 Section 2 of the Korean Constitution.
29)
According
to the wording of Article 37 Section 2, this is a principle that can be applied
to any restriction of fundamental rights.
30)
The principle means that any
restriction on the fundamental rights and the legitimate interest which is to
be protected by such restriction shall be proportionate in the following
26) Constitutional Court of Korea, 89Hun-Ma82, Sep. 10, 1990; Constitutional Court of
Korea, 99Hun-Ba40, Oct. 31, 2002; Constitutional Court of Korea, 2008Hun-Ba58, Nov. 26,
2009.
27) In the late 19th century, the proportionality test was first developed in the High State
Administrative Courts (Oberlandesgericht) in Germany, to review actions by the police. The
German Constitutional Court(Bundesverfassungsgericht), which was established in 1951,
transferred this test into constitutional law and applied it to laws limiting fundamental rights.
The first decision that mentions the principle of proportionality concerns an election law of
the state of North Rhine Westphalia,
see Decision of the German Constitutional Court,
BVerfGE 3, 383 at 399 (1954).
28)
See e.g. Bernhard Schlink, Proportionality in Constitutional Law: Why everywhere but here,
22 Duke J. Comp. & Int’l L., 2011 at 291; Dieter Grimm,
Proportionality in Canadian and German
constitutional jurisprudence
, 57.2 U. of Toronto L. J., 2007 at 383-384.
29) About the Proportionality Test of Korean Constitutional Court,
see e.g. Chee-Youn
Hwang,
Critics on the Constitutional Complaint against the Ordinary Courts’ Judgments in Terms of
Balancing and Proportionality Test in Korean Constitutional Review
, 18(2) MIGUCKHEONBEOB-YEONKU
[S
TUDIES ON AMERICAN CONSTITUTION] 2007 at 271, 292 (especially, chapter IX: “Proportionality
Test as the Rule against Excessive Restriction“).
30) In Germany, it took until 1963 for the German Constitutional Court to recognize the
applicability of the principle in all cases where fundamental freedoms are infringed (BVerfGE
16, 194 at 201 (1963)). Another two years passed before the Court explained where it finds the
textual basis for the principle.
See Grimm, supra note 28, at 385.
334 | Journal of Korean Law Vol. 15: 325
manner: (1) The purpose should be legitimate (Legitimacy of Purpose), (2)
the means should be appropriate (Appropriateness), (3) the restriction
should be minimized (Minimal Restriction) and (4) legal interests should be
balanced (Balance of Legal Interest).
As to the ‘Legitimacy of Purpose’, the majority opinion of the
“2015Decision” ruled, “The provision at issue intends to promote the
marriage system based on good sexual morality and monogamy and to
preserve marital fidelity between spouses, and its legislative purpose is
legitimate.”
31)
And in terms of this ‘legitimate purpose examination’, there
seems no clear objection among other judges to the majority opinion of the
“2015Decision” that the legislative purpose was legitimate.
As to the other three sub-principles, the majority opinion argued quite
in detail as follows. It argued that “the recent rapid dispersal of individualism
and sexual openness has caused changes of awareness about marriage and
sex. Sex and love should not be controlled by criminal sanctions, they
should rather be the responsibility of the individuals. Although the act of
abandoning the responsibility to be virtuous is immoral, it is hardly
something to be punished by law. Furthermore, meeting and engaging in
sexual intercourse at free will pertains to individual freedom. Though
immoral, it belongs to individual life and the negative effect on the society
is not so critical. Therefore the modern trend in the Criminal Act is that
without definitive violation of the specific benefit and protection of the law,
intervention by national authorities should not occur.”
32)
The majority
opinion made a further important point: “Besides the fact that adultery
requires a complaint from the victim for prosecution, exercising the right to
accuse someone is possible only after the marriage has been dissolved or a
divorce suit has been filed. This would eventually lead to the breakdown of
the affected family.”
33)
The opinion mentioned that even if the accusation
was recanted, it is unlikely that the couple would ever recover emotionally.
Therefore, adultery does not contribute to the protection of the marital
system nor promote the concept of family. “Moreover it is unlikely that the
31) See the majority opinion (“unconstitutional”) of the five judges in the “2015Decision”
(Constitutional Court of Korea, 2009Hun-Ba 17, 205 (consolidated), Feb., 26, 2016).
32) Id.
33) Id.
Adultery and the Constitution | 335No. 2: 2016
offender would want to reunite with the spouse, and due to the worsened
spousal relationship the family bond would be shattered. There has been a
lack of research showing the preventive effect of adultery criminalization
by analyzing the realities of law enforcement, and no statistical data has
demonstrated that the countries that have abolished adultery criminalization
have more corruption of sexual morality or higher divorce rates than
before.”
34)
Thus, according to this major opinion, adultery criminalization is
unconvincing as a preventive measure to keep families together, which in
terms of criminal policy suggests that general and special prevention effects
cannot be expected with such measures. Moreover, according to this major
opinion, “Also following the accusation of a spouse for adultery, future
divorce would be assumed, meaning that women who cannot support
themselves economically would feel rather uncomfortable with the
outcome of the accusation. Therefore, nowadays adultery criminalization
itself has largely lost its function of protecting married women. It now
penalizes only a handful of those who actually commit adultery, rather
producing potential criminals as it restricts their basic rights and losing its
effectiveness in protecting the marital system and spousal fidelity.”
35)
In conclusion, this opinion argues the following: “Marriage and the
family bond should depend on the free will and love of the individuals
rather than being forced through punishment. The regulation on criminal
adultery, which punishes the act of adultery in order to protect good sexual
customs and marital monogamy and facilitate spousal fidelity, violates the
Appropriateness and Minimal Restriction Principle within the Principle of
Proportionality. Based on the criminal adultery punishment regulation,
protection of marital monogamy and spousal fidelity for the common
benefit cannot be fulfilled, while the criminal adultery punishment regulation
assumes individual privacy as punishable by law. This exceedingly limits
individual rights to sexual decision making, privacy, and freedom, and
ultimately the criminal adultery punishment regulation violates the Balance
34) Id.
35) See the majority opinion of the five judges in the “2015Decision” (Constitutional Court
of Korea, 2009Hun-Ba 17, 205 (consolidated), Feb., 26, 2016).
336 | Journal of Korean Law Vol. 15: 325
of Legal Interest principle within the Principle of Proportionality.”
36)
3) Review
(1) Regarding the legitimacy of the legislative purpose of criminal adultery
regulations
It seems that the legitimate purpose examination in balancing and
proportionality test of Korean Constitutional Court is criticized as
superficial. If one could put aside that criticism, and so far as one follow the
existing legitimate purpose examination’s logic of the court, the purpose of
adultery “… to promote the marriage system based on good sexual
morality and monogamy and to preserve marital fidelity between
spouses”
37)
might be legitimate. And one can admit that the punishment of
criminal adultery serves its own legitimate purposes.
38)
(2) Regarding other sub-principles of the Principle of Proportionality
In addition, based on the “2015Decision,” in which five Constitutional
Court Justices ruled that the criminal adultery punishment regulation
violates the Principle of Proportionality, adultery is an act of immorality.
According to a recent survey, it is no longer clear whether the majority of
Koreans support the idea that criminal adultery should be punishable by
law.
39)
Nowadays, it is clear that Koreans have become more open-minded
towards sex and that they do not consider the act of adultery to arouse
anger or repulsion, promoting the idea that adultery is no longer an evil act
to be punishable by the Criminal Act.
In addition, according to the Constitution of Korea, the limitation of
fundamental rights should comply with the conditions of Article 37 Section
36) Id.
37) Id.
38) For reference, the decision which struck down the Criminal Act Article to punish
‘obtaining sex under false promises of marriage’ denied also the legitimacy of the purpose of
the legislation. It was one of those rare cases in which the Constitutional Court denied the
legitimacy of the purpose of the act. See Constitutional Court of Korea, 2008 Hun-
Ba58·2009Hun-Ba191, Nov. 26, 2009.
39) A recent survey of Korea Women’s Development Institute (KWDI) showed 60.4% of
those questioned were in favour of maintaining the punishment of adultery, and it shows that
about 60% of adult citizens appeared to be in favour of maintaining the punishment.
Adultery and the Constitution | 337No. 2: 2016
2.
40)
It has been pointed out that, as to regulating adultery by the Criminal
Act, maintaining the order of “sexual morality” as a purpose to regulate
sexual decisions made by individuals is an invalid point based on the
Constitution Article 37 Section 2, since it arguably does not fall within the
specified categories of this constitutional provision.
41)
Furthermore, “sexual morality” can become either more conservative or
more liberal, meaning that it is flexible and changeable depending on the
times. As long as the sexual customs and culture do not go against positive
norms of human rights, members of the society should be able to freely
decide and voluntarily comply at the level of common morality and ethics.
Such customs and culture should not be regulated by law.
42)
Rather than
viewing it as punishable by criminal law, it is more appropriate to view it
as an area of moral criticism.
Besides, according to the German Federal Constitutional Court, taking
state measures to advance the morality of the citizens is irrational.
43)
Moreover, the traditional family structure and the role/position of each
family member have changed, and our country today is experiencing a
rapid growth of individualism and greater sexual openness, which in
return changes the awareness about marriage and sex. Sex and love cannot
be regulated by punishment; it has to be the responsibility of individuals.
Violating the responsibility of spousal fidelity is immoral, yet it is not
punishable by law.
In terms of the pursuit of happiness, today’s society increasingly values
the ability to freely exercise rights to sexual decision making more than it
values the maintenance of traditional sexual morality and protection of
spousal fidelity. This shows the changes in the structure of our society,
changes in the awareness of the people about marriage and sex, and the
tendency to value rights to sexual decision making. These all demonstrate
that it is hard to judge whether a married person having sexual intercourse
40) Hunbeop [Constitution of the Republic of Korea] Article 37 Section 2: “Freedoms and
rights of citizens may be restricted by the Act only when necessary for national security,
maintenance of law and order or for public welfare. Even when such restriction is imposed,
essential aspects of the freedom or right shall not be violated.”
41)
See KWang seoK cheon, heonBeoBpanlyeyeongU 226 (2000); Lee, supra note 13, at 431.
42) See Cho, supra note 12, at 92.
43) BVerfGE 22, 180.
338 | Journal of Korean Law Vol. 15: 325
with a person other than his/her spouse should be punished by criminal
law and that there has been little consensus among the people. Based on the
above reasons, it is more legitimate to treat adultery as a matter of morality
than a matter that can be regulated by criminal law, and the criminal law
imposing a penalty on the act of adultery is unsuitable.
Moreover, assuming that the purpose of criminal adultery regulations is
to “maintain spousal fidelity,” criminal punishment by the country, which
is a form of physical power, should not be used, but the free decision has to
be fundamentally given to the married couples themselves. The former
imposes exceedingly strict regulations on the rights to sexual decision
making, such as sexual intercourse and the right of decision, and thus,
criminal punishment for spousal fidelity is inappropriate.
When comparing punishing and not punishing a married person who is
involved in adultery, it is questionable whether punishment improves
spousal fidelity, prevents the act itself due to the fear of punishment,
reunites spouses and increases sexual faithfulness, and serves to protect the
marriage and family system. It is hard to prove its effectiveness, because it
relies heavily on sentimental arguments, idealism, common sense, and
intuition.
44)
Most cases of adultery are left undiscovered by the spouse, and even if
it is discovered, the rate of criminal suits is quite low. Based on recent
statistics, the number of incidents being reported or prosecuted has
decreased. The rate of imprisonment is less than 10% of the total suits filed.
During the inspection and the process of hearing, many cases are dropped,
as authorities end up refusing to prosecute. This shows how the role of
criminal punishment has been greatly weakened, and based on this, the
five constitutional Justices ruled in the “2015Decision” that the criminal
adultery punishment regulation violates the Method Appropriateness in
the Principle of Proportionality, and the case was legitimate in terms of the
Constitution.
In addition, when any spouse commits adultery, rather than punishing
the person for criminal adultery, which would only cause more damage, it
44) See Chan-hee Shinlee, gantongjoe, yeoseong-ui gwon-ig-eul bohohaneun beob-i anida
[Adultery is not the law that protects women], vol. 422 National Assembly Rev. [gughoebo] 84
(2001).
Adultery and the Constitution | 339No. 2: 2016
would be more beneficial to require them to compensate the victim for lost
property and pain and suffering and grant a divorce based on the civil law.
Such civil penalties imposed on the person who committed adultery would
encourage spousal fidelity, unlike the criminal adultery punishment
regulation that violates the Principle of Minimal Restriction.
Moreover, according to the Constitution Article 36 Section 1, the
marriage and family system needs to be established and maintained based
on individual dignity and gender equality, which is guaranteed by the
country. The criminal procedure against the person who committed
adultery would prevent the recovery of the relationship between the
married couple and cause early breakdown of the marital relationship. It
would make reunion impossible and worsen the marital relationship due to
the need to investigate the adultery in order to accuse the spouse.
45)
It
would also have detrimental effects on the lives of children,
46)
increase the
number of marriages that end in divorce, and punish those who attempt to
form new marriage relationships and do not file for divorce ahead of time
while prematurely involved in sexual intercourse. This only creates
husbands/wives or fathers/mothers with criminal records.
47)
The affected persons would not be protected by the marriage and family
system guaranteed by the Constitution Article 36 Section 1. Instead, they
would experience more obstacles and even face the dissolution of new
marital and family relationships. Therefore, criminal adultery regulations
violate the Constitution Article 36 Section 1 by failing to guarantee the
marital and family system, and they do not protect spousal fidelity. They
rather subject individuals’ private sexual lives to criminal punishment and
limit their basic rights to individual sexual decision making. In these
aspects, it is constitutionally legitimate in the “2015Decision” that the five
Justices ruled that the criminal adultery punishment regulation violates the
Principle of Minimal Restriction in the Principle of Proportionality.
In addition, the criminal adultery punishment regulation is unlikely to
effectively inhibit the act of adultery, which was thought to be the function
of the regulation, if the reason that a married person commits adultery is
45) Cheon, supra note 41, at 288; Lee, supra note 13, at 433.
46) Shinlee, supra note 44, at 83.
47) Lee, supra note 13, at 433.
340 | Journal of Korean Law Vol. 15: 325
based on love with a person other than the spouse. On the other hand,
when the reason that a married person commits adultery is based on
something other than love (e.g., engaging in prostitution to satisfy curiosity,
keep up with the entertainment routine prevailing in one’s social life, or
satisfy sexual desire),
48)
many feel that such behavior is acceptable as long
as it remains hidden.
49)
The criminal punishment of adultery when applied
to a relationship not based on love can neither be expected to prevent the
act of adultery nor be effective in terms of general and special prevention.
Due to the preceding reasons, on the “2015Decision,” one could
disagree with the claim made by Justice Yi-Su Kim that “there are three
types of adultery.” These include “those involving sexual intercourse
outside of marriage for basic sexual pleasure (type 1); those involving
individuals who met persons more attractive than their current spouse,
became skeptical about the current marriage, and fell in love with the new
person (type 2); and those involving the practical breakdown of the
marriage by living separately followed by having sexual intercourse with
someone other than the spouse (type 3). Among the three types of adultery,
the first two are different from the third, in that the third is more prone to
moral criticism and shows a greater need to keep the marital status intact.
Therefore, criminal regulations on such cases are still needed. Types 1 and 2
have proven to be preventable through the power of law enforcement, such
as imprisonment, which is the only type of court penalty, followed by the
procedural burdens coming from inspections and court trials and the fear
of losing one’s job. The adultery regulation for types 1 and 2 can be an
effective tool to bring forth the true regret and self-reflection of the person
who committed adultery, after which, in some cases, legal proceedings are
cancelled in the process. This would possibly allow the recovery of the
48) Korea’s Ministry of Gender Equality and Family (MOGEF) Korea surveyed 1,632
adults (age of 20’s~50’s and M/F) about culture and notion of sex in 2008. According to the
survey report, the motive of sex buyers is alcohol (54.4%), curiosity (33.1%), sexual desire
(21.8%), colleague’s solicitation (16.8%), entertaining custom (14.4%), stress relief (3.7%), army
enlistment (1.5%).
49) From August 1. 2006 till September 5. 2006, MOGEF surveyed 1,573 citizens about sex
purchase experience. According the survey report, 44.3% had never purchased sex, 40% had
ever purchased less than 3 times, 8.8% had ever purchased 4~6 times, 2.5% had ever
purchased 7~9 times, and 4.4% had ever purchased more than 10 times. Compared to the sex
purchase non-experienced group, sex purchase experienced group is bigger (56.7%).
Adultery and the Constitution | 341No. 2: 2016
scarred marital relationship.”
Moreover, in relation to the “2015Decision” that the criminal regulation
of adultery is unconstitutional, one could disagree with the claim made by
Justice Ilwon Kang that “the acts of adultery and incest occur due to
individual sexual decisions, which belong to the area of private life.
Nevertheless, if such behaviors have destructive effects on the marital
relationship, they do not simply belong to the ethical and moral level but
gain the rationale for regulation by law.” Actually, these two opinions are
not consistent with the logical flow of the major opinion. Thus, it seems that
each of the two Justices had to write their own separate (concurring)
opinions.
One would also disagree with the claims of the dissenting opinion made
by Justices Jung-Mi Lee and Chang-Ho Ahn that “the act of adultery
between a married person and the other party not only deviates from the
social ethical suitableness but also nearly dissolves marriage and family or
puts it at risk. Thus, it is difficult to perceive the act only at the level of
ethics and morality.” Therefore, in this regard, this dissenting opinion
claims that contrary to the majority opinion, “It is hard to completely
disagree with the function of criminal law when it comes to maintaining
good social sexual morality. Moreover, when it comes to protecting
ordinary housewives who have little social experience and are economically
and socially disadvantaged members in the family, often times due to the
concealed property of their spouses, property division law is ineffective,
and the amount of consolation money is nearly insignificant. Our society
still needs to punish adultery because the current civil law system or court
service cannot support them, and various systems to protect economically
and socially disadvantaged people are missing. In particular, issues remain
to be resolved, such as recognizing property division during marriage,
regulating one-sided residential property sellouts, ensuring the right to
rescind fraudulent acts in order to protect the right to property division
requests, guaranteeing inheritance following the divorce, and many more.”
2. Regarding concurring opinion
Despite the fact that seven Justices commonly concluded that adultery is
unconstitutional at last, two among the seven (Yi-Su Kim and Ilwon Kang)
342 | Journal of Korean Law Vol. 15: 325
had different reasons to back up the conclusion.
1) Regarding Yi-Su Kim’s opinion
Justice Yi-Su Kim claimed that “the majority of general public still feel
that punishment regulation against adultery is needed,”
50)
articulating a
different view from the other five Justices who mentioned the changes in
social awareness. He admitted that adultery punishment regulation has
preventive benefits and allows recovery of the marital relationship.
Furthermore, he believed such measures can be useful for socially
disadvantaged women when they request for alimony after the divorce.
However, in Kim’s view, it is unconstitutional because of the following.
First, it is totally unnecessary to punish various types of adulterers and the
other party in a uniform way. In particular, adultery in the case of a legally
married couple undergoing long-term separation should be considered
differently since their marriage has been already practically shattered.
51)
Second, in this case, it is also problematic when it comes to punishing
the other party for adultery. If the other party is legally single, not only
must individual rights be protected, but also no such responsibility for
spousal fidelity exists in the first place. Punishment of such person is
considered the abuse of the state’s administrative power.
52)
2) Regarding Ilwon Kang’s opinion: the point that criminal adultery
regulations violate the Void-for-Vagueness Doctrine, and if punished
solely by imprisonment it is unconstitutional
Justice Ilwon Kang backed up his conclusion of unconstitutionality with
arguing that the applicable range of adultery is ambiguous. He explained
that “during the initiation of the criminal adultery punishment regulation,
when a married person connives or condones the adultery of the spouse, a
lawsuit cannot be filed against the spouse nor can the spouse be punished.
However, the criteria with which to judge whether connivance or condona-
tion has been made are unclear. On the other hand, based on the Supreme
Court’s ruling on March 22, 1991 regarding the 90-do 1188 case, on July 10,
50) See Kim’s concurring opinion in the same 2015Decision.
51) Id. (Justice Yi-Su Kim, concurring opinion).
52) Id. (Justice Yi-Su Kim, concurring opinion).
Adultery and the Constitution | 343No. 2: 2016
2008 regarding the 2008-do 3599 case, on September 12, 1989 regarding the
89-do 501 case, on July 9, 2009 regarding the 2008-do 984 case, and on
November 20, 2014 regarding the 2011-mu 2997 case, it is difficult to judge
when unambiguous and complete consent on divorce has been made or
when tentative or conditional willingness to divorce has been expressed.”
53)
He also claimed the following: “If one argues that adultery does not
apply when cohabitation of the married couple is at an unrecoverable state,
most of the general public that have less expertise in law would have little
idea on the true degree of the unrecoverable state, nor would they be able
to estimate to what extent they would have to know about the details of
adultery. Moreover, it would be difficult to grasp to which extent the
willingness to sustain the marital relationship should be expressed.”
54)
Ultimately, in this flow of logic, it is hard for the general public to
clearly determine whether condonation has been made on adultery until
each element is reviewed based on the precedent cases. Therefore, what
constitutes criminal adultery is clear, yet the passive accusation requirement
of connivance and condonation is unclear, in which the latter violates the
Void-for-Vagueness Doctrine, according to Justice Kang.
Moreover, he argued that even with various forms of adultery, impris-
onment as a sole punishment violates the Principle of Proportionality. He had
pointed out that imposing only imprisonment on various types of criminal
adultery eliminates the balance between the degree of the crime and the
weight of the punishment, as it deviates from the practical Principle of the
Constitutional State. Once found guilty of adultery, as long as the case does
not conclude as a “stay of execution” or “suspension of sentence,” the
majority of the cases impose short-term punishments of restrictions of
physical freedom. This raises issues such as the brand effect and malignant
infection during the process of law enforcement, yet it has little reforming
effects. “For such reasons Austria now prefers a monetary penalty over a
punishment of restricting physical freedom. Likewise, England has
replaced the punishment of restricting physical freedom with a social
volunteering and probation system. In our case, requiring imprisonment
for up to two years is out of the international legislative trend while it
53) See Kang’s concurring opinion in the same 2015Decision.
54) Id. (Justice Ilwon Kang, concurring opinion).
344 | Journal of Korean Law Vol. 15: 325
violates the Principle of Proportionality between responsibility and
punishment.”
55)
3) Review
First, the constitutional “Void-for-Vagueness Doctrine” means that the
basic laws for the people are to be drafted in language such that when it is
unclear for the average person to comprehend, the law should be voided.
Due to this doctrine, the crime composition requirement subject to criminal
punishment needs to be precisely defined with a literal meaning, according
to the principle of nulla poena sine lege.
However, the crime composition requirement being clearly defined
does not imply that in the process of implementing the law, judgment of
value should be completely excluded nor does it require it to be a colorless
descriptive concept. Even if the concept would need additional interpretation
by the judge, by ordinary means of interpretation prohibiting arbitrariness,
it implies that the content can be written in a way that it is easy to com-
prehend.
In light of this Void-for-Vagueness Doctrine, regarding the
“2015Decision,” the Constitutional Court Justice Ilwon Kang ruled that the
criminal adultery punishment regulation violates the Void-for-Vagueness
Doctrine, explaining that the lexical definition of “connivance” is “to
explain thoroughly, appease and suggest,” while the lexical definition of
“condonation” is “to generously forgive” or “to express feelings of over-
looking an offense.”
The Supreme Court ruled that “if the married couple does not intend to
continue their marital relationship and has fully shown agreement on
divorce, even if they are still legally married, prior consent is implied.”
56)
Moreover, the Supreme Court ruled, “If the divorce agreement has been
made internally, such as when the married couple wants to divorce by
mutual agreement and live separately, or when the declaration of divorce
has been signed, regardless of whether the couple is legally married, they
have expressed that sexual intercourse with a third party would be
55) Id. (Justice Ilwon Kang, concurring opinion).
56) Supreme Court of Korea, 77Do2701, Oct. 11, 1977; Supreme Court of Korea,
2006Do1759, May. 11, 2006.
Adultery and the Constitution | 345No. 2: 2016
connived.”
57)
Lastly, it was ruled that “although the couple has not divorced yet, if the
communal life has practically been destroyed and become unrecoverable, if
there was a third party sexually involved with one of the spouses, it cannot
be considered infringement or interruption of communal life. Furthermore,
there is no rationale to claim that there had been infringement of the right
to communal life, upon which it can be reasoned that no illegal act has been
done.”
58)
If the marriage has reached the point where practical communal
life is nonexistent, adultery does not violate social common standards that
are generally accepted in terms of social ethics, as it is prone to being seen
as illegal. Nevertheless, in the case where there is little possibility of social
criticism, it does not violate social common standards.
59)
Thus, regarding
various types of adultery, it is possible that the judge can interpret the
concepts of connivance and condonation appropriately so that they can be
applied in order to rule the defendant innocent, or they can be alleviated so
that only a suspended sentence or probation can be imposed.
Therefore, in order to punish the adulterer by criminal punishment, it is
necessary to widen the definition of connivance and condonation. Even if
the concepts of connivance and condonation in the criminal adultery
punishment regulation requires additional interpretation by the judge, by a
general method of interpretation that excludes arbitrariness, the content of
connivance and condonation can be easily comprehended.
60)
Therefore, in
relation to the “2015Decision,” the claim made by Constitutional Court
Justice Ilwon Kang that the criminal adultery punishment regulation
violates the Void-of-Vagueness Doctrine is disagreeable.
As to whether the adultery regulations in Criminal Act Article 241
having imprisonment as its sole means of punishment violate the Principle
of Proportionality between responsibility and punishment, the upper
bound of criminal adultery punishment is up to two years of imprisonment.
57) Supreme Court of Korea, 95Do2819, Feb. 25, 1997.
58) Supreme Court of Korea, 71Do2259, Jan. 31, 1972.; 2006Do1759, May. 11, 2006;
2011Meu2997, Nov. 20, 2014.
59) In the same decision (“2015Decision”), the dissenting opinion of two judges (Jung-Mi
Lee and Chang-Ho Ahn) pointed this out, too.
60) See Lee, supra note 13 at 438.
346 | Journal of Korean Law Vol. 15: 325
It has been pointed out that this is relatively less burdensome, taking into
account that the less serious act of adultery can even be probated. In
addition, if a monetary penalty were implemented, this would still be
ineffective at general and special prevention through legal threatening,
especially if the married person committed adultery in order to avoid the
duty of support or compensation for damages.
In addition, it had been pointed out that a monetary penalty, which is
relatively less burdensome than imprisonment, has been recognized as a
form of indemnity or conscience money. Adultery is more of an unethical
crime rather than one based on profit acquisition. Therefore, a monetary
penalty is unsuitable for penalizing adultery, and it can be abused by those
who are economically well off by allowing them to indulge.
61)
By following these logical flows, one would eventually at least disagree
with the claim made by the Constitutional Court Justice Ilwon Kang that
imprisonment as the sole means of punishment violates the Principle of
Proportionality between responsibility and punishment.
3. Regarding the dissenting opinion
Although unexpectedly many Justices ruled the criminalization of
adultery as unconstitutional, Jung-Mi Lee and Chang-Ho Ahn still argued
views to the contrary. They refuted the claim that adultery violates the right
to sexual decision, by explaining that “it is hardly agreeable because
adultery is an act of violating spousal fidelity by a married person who
chose to take such responsibility to start with, and it denies the community
that protects the marriage.”
62)
According to their explanation, adultery is
beyond the act concerning one’s own domain. It is an invasion of others’
benefits.
They also reasoned that adultery can severely threaten marital
monogamy, which serves as a basis for marital system, and that it causes
various social problems. The Justices emphasized that “From Ancient
Chosun’s Eight Article Law until now adultery has been prohibited and
punished, and consequently the general public has recognized adultery as
61) Id.
62) See Lee and Ahn’s dissenting opinion in the same 2015Decision.
Adultery and the Constitution | 347No. 2: 2016
punishable. This general notion has resulted in preventive effects for
adultery.”
63)
As to the imprisonment as a sole punishment, they considered it valid
in that “the upper bound of its legal penalty is relatively low” and “less
serious acts of adultery have even possibility of suspended sentences.”
64)
We can easily find that this dissenting opinion mainly follows the
rationale of the majority opinions of the previous four decisions that had
ruled the criminalization of adultery as constitutional. The rationale had
been ‘maintaining spousal fidelity’ and ‘protecting women through
criminal adultery.’
65)
The majority opinions of the past decisions have,
however, dwindled to become the opinion of the minority(dissenting
opinion) in the 2015Decision.
We should also notice a small controversial issue that, though this
dissenting opinion of the 2015Decision mentioned that adultery had been
prohibited and punished in Ancient Chosun’s Eight Article Law, only three
of these articles have been clearly recognized by the mainstream of
historians and the adultery article is not included in this three.
66)
4. Interim Conclusion
My consequent opinion on this decision is the following. The rationale
underlying the criminal adultery punishment regulation that it protects
good sexual customs and marital monogamy and moreover facilitates
spousal fidelity is agreeable. However, our country today has witnessed an
expansion of individualism and sexual openness, believing that sex and
love should not be regulated by the state but be left within the responsibility
of the individual. Although adultery is immoral, ultimately it belongs
within the realm of individual privacy. Therefore, the country should not
be prosecuting criminal adultery in order to secure spousal fidelity, but
63) Id.
64) Id.
65) See the majority opinion of 1990Decision, the 1993Decision, 2001Decision and the
2008Decision.
66) The other five can be only found in “Hwandangogi,” which has been regarded as a
forgery by mainstream of historians.
348 | Journal of Korean Law Vol. 15: 325
rather, based on individual freedom, leave the issue to the free will of the
married couple. In this respect, criminal adultery regulation exceedingly
invades freedom of privacy and therefore is unconstitutional.
Furthermore, when either spouse commits adultery, according to the
divorce conditions based on the Civil Act Article 840 Section 1, the
adulterer has to compensate for the resulting property and mental loss
based on the Civil Act Article 843 and Article 804, and the court would
restrict child custody and visitation rights in order to protect the welfare of
the child so that these civil disadvantages would be given to the adulterer
who would then feel more responsible for spousal fidelity based on the
Civil Act Article 843, Article 837 Section 3 and 4, Article 837 Section 2.
Despite the common benefit of protecting spousal fidelity, the majority
of people believe that adultery barely harms society, and thus rather than
the state’s power of imposing criminal punishment in order to inhibit or
prevent adultery, it is more reasonable to let the free will and love of the
married couple decide whether to maintain the marriage and family. Such
benefit and protection of the law has to be considered at the level of
morality.
According to the report by Korean Women’s Policy Research Organi-
zation, a survey was taken in June 2014 targeting 2000 adults from both
genders regarding adultery, in which the analysis revealed that 36.9% of
the male respondents had experienced adultery during marriage, while
65.6% of female respondents had experienced adultery during marriage. Of
the total, 23.6% of the respondents had experienced adultery that can be
punished by law, which corresponded to 32.2% of male respondents and
14.4% of female respondents. In sum, the organization concluded that
based on the survey results adultery is no longer a rare phenomenon. Such
recent survey data and reports reveal that in fact adultery is prevalent in
our society while a very low percentage had been penalized, thus leading
to the conclusion that criminal punishment of the act of adultery and incest
generates little general or special preventive effect.
Thus the regulation no longer fulfills its intended function of protecting
marriage and family and facilitating spousal fidelity, while conversely the
punishment tears apart marital relationships, leading to divorce and the
breakdown of the family, and unnecessarily increases the number of
criminals, which violates the Constitution Article 36 Section 1, the
Adultery and the Constitution | 349No. 2: 2016
protection of marriage and family system. In addition, since divorce
constitutes a precondition for accusing one’s spouse of adultery, criminal
punishment in fact fosters the dissolution of families, and therefore
arguably violates the constitutional protection of marriage and the family
system. Criminal adultery regulation violates the principle of proportionality
and the individual right to sexual decision-making and invades the right to
privacy. Therefore it is unconstitutional.
For the preceding reasons, the ‘2015Decision’ that adultery regulation is
unconstitutional is thus constitutionally legitimate.
5. Consequences of the Decision and Retroactivity
1) Consequences
The decision of the case has brought enormous impact to Korean
society, and currently, the arguments for and against the decision are being
debated. If one wants to know the opinions of persons who may represent
different positions by way of example, they are as follows. Park, a civil
activist and president of the cooperative office in the People’s Solidarity for
Participatory Democracy, claimed that the state should not intervene in the
problems of couples by means of penalty.
67)
Moreover, the United Women’s
Association provided the following opinion through reviews: “[T]he
decision from the Constitutional Court to rule the criminal regulation of
adultery as unconstitutional should be respected since it lacked actual effect
until now.”
68)
Professor Young-Su Chang of the Korea University law
school also advised that “in the long-term, it is right to deem the criminal
regulation of adultery unconstitutional” and that “setting the case study of
developed countries as a model for solving the adultery problem through
67) He stated that it is rather more righteous for the state to ask for civil liability, and he
commented, “[I]t is justified from the viewpoint of the judicial perspective and the flow of the
times.”
See Sejun Park et al., (gantongjoe wiheon) “sidae byeonhwa injeonghaeya” “gajeong
haecheㆍgigang bung goe
[(Adultery is Unconstitutional) “Era’s change to admit” “Demolition of
family and collapse of discipline”
], World Daily [segyeilbo], Feb. 26, 2015, http://www.segye.
com/content/html/2015/02/26/20150226004864.html (last visited Aug. 16, 2015).
68)
Id. (United Women’s Association, in its comment) The association also stated, “[E]ven
though the adultery law is abolished, the moral and ethical responsibility agreed to by the
couple does not necessarily disappear, and there should be an amendment requiring the
partner to bear the civil liability from imputation.”
350 | Journal of Korean Law Vol. 15: 325
civil law would be a desirable way toward a solution.”
69)
However,
Sungkyunkwan University’s Confucian scholar Seo-Chan Ryu responded
differently, arguing, “[I]t is desirable that the state should be the arbitrator
for penalizing the adultery crime.”
70)
Conversely, Dr. Ha from the Christian
Association (Korea Association of Christian Family Counseling) mentioned
that “abolishing the adultery crime has a considerable relationship with
social and domestic problems, and therefore, there is a higher possibility
that abolishment of the criminal regulation of adultery may lead to negative
results, such as less attention for dysfunctional family problems.”
71)
On the other hand, in order to analyze the changes in the perceptions of
the general public based on gender after the decision on the case, one recent
poll
72)
conducted a comparison of male and female respondents after the
abolishment of the criminal regulation of adultery.
73)
At the executive level,
the National Assembly or the Ministry of Justice did not show any tangible
movement or discussion on any measures related to the gap created from
the abolished space. In addition, if it was abandoned, the consequence of
weakening marriage ties had been worried, and the retrial case from the
decision triggered debate on human rights issues as private information of
the involved person and the related people leaked out during the process.
Finally, issues had been raised from the decision of the case regarding the
wider scope for the Korean court to select the breakdown principle, but
recently, the Supreme Court maintained the principle of liability with a
unanimous vote.
74)
In addition, a study argued
75)
that we should move
69) Id. (Young-Su Chang, in his comment)
70) Id. (Seo-Chan Ryu, in his comment)
71) He further added, “[R]ather than complete dissolution of the adultery law, an
alternative method of amendment should be employed according to the times.” Id. (Hyeon-
Cheol Ha, in his comment)
72) Jinho Shin, [2015 Adultery Report], Seoul News [seoulsinmun], Sep. 16, 2015, http://
www.seoul.co.kr/news/newsView.php?id=20150916500037 (last visited Dec. 16, 2015).
73) Id. The results showed that 24.2% of married people had experienced extramarital
affairs, which was 2.8% higher than when the Korean Women’s Development Institute
researched the same topic eight months before the abolishment of the criminal regulation of
adultery. http://www.fnnews.com/news/201502261520510963 (last visited Aug. 16, 2015).
74) Supreme Court of Korea, 2013Meu568, Sep. 15, 2015.
75) Do-Jin Og, wiheongyeoljeong hu gantong-e daehan minsa chaeg-im [Civil liability after
decision of constitutional violation on adultery punishment
], Vol. 450 INGWONGWA JEONG-UI
Adultery and the Constitution | 351No. 2: 2016
henceforth the discussion centered on not ‘criminal characteristic’ of
adultery but illegal breach of marriage contract. In other words, adultery is
just one type of breach, as he pointed out. This argument seems proper and
reasonable.
2) Retroactive Effect Issue
As the decision concluded, the crime of adultery (Criminal Act Article
241) is now unconstitutional. The criminal law clause lost its effect
retroactively. But the past judgments of the criminal court based on the
clause, which were decided until October 30, 2008, remain valid. In other
words, only the defendants who were convicted by the criminal courts after
October 30, 2008 (the day when the clause was last held by the Constitutional
Court as constitutional) could be found innocent through retrial. This is
because the proviso of Article 47 Section 3, which limits the retroactive
effect of decisions on unconstitutionality to a certain time, stipulating the
cut-off point as the latest date when the Constitutional Court last upheld
the same challenged statue as constitutional. The proviso was newly
enacted on May 20, 2014.
The aim to legislate the proviso was to avoid an excessive burden on
legal stability and on the judicial branch. Criminal courts had experienced
overwhelming numbers of retrial cases as a result of unconstitutionality
before. That experience was caused by the decision of the Constitutional
Court which struck down Criminal Act Article to punish ‘obtaining sex
under false promises of marriage’. After November 2009, the day the
relevant provision was declared as unconstitutional, all persons who had
been convicted by the criminal clause until that time had made appeals to
have a retrial, and criminal indemnity was to be given to each one of them,
too. To avoid such congestion and burden on the judiciary, the proviso was
legislated to limit the scope of the retroactive effect. In virtue of the proviso
the Constitutional Court no longer has to worry much about the burden of
unlimited retrials and indemnities whenever some criminal law clause is
struck down. In other words, thanks to the proviso the Constitutional Court
has been able to focus on the constitutionality issue without any consider-
[Human Rights and Justice] 19 (2015).
352 | Journal of Korean Law Vol. 15: 325
ation of the potential social burden which might be caused by its decision.
IV. Conclusion
(1) In Korea, the legislature and executive are often criticized for their
lack of contribution to decriminalization. They are in fact responsible for an
increase in the criminal law. Therefore, ‘decriminalizing’ decisions by the
Constitutional Court are of particular importance. The decisions include
that of 2009, holding that punishing sex under false promises of marriage
was unconstitutional, as well as this “2015Decision,” also holding that
punishing adultery was unconstitutional. Thanks to these preceding
decisions, problems with strong decriminalization claims of several types of
crimes have been resolved to a certain extent. However, one must admit
that there remain many obstacles to overcome.
In Korea, punishment for homosexual acts in the military and
punishment for the act of prostitution are still under debate. Moreover, in
terms of administrative law, numerous cases involve disproportionate
levels of punishment. In order to estimate the possibility of resolving such
issues, it is important to recognize the current subject and criteria that
would make it practically feasible. In the process of examining such
subjects and criteria, the preceding cases, especially the adultery case of
2015, involved the KCC as an organization that makes constitutional
decisions based on general constitutional rights and values, and enjoys the
relative trust of the people. Its contributions towards decriminalization are
thus to be encouraged.
Understanding these cases by putting emphasis on the criteria and
subjects more deeply and in more detail is highly important. Because this
understanding is essential since it could be used for predicting and
realizing the future of the decriminalization movement in South Korea or
other countries, which have similar social issues. In this article, I tried to
explain and emphasize such criteria and subjects, especially related to the
“2015Decision”.
(2) The decision on unconstitutionality reflects the trend in other parts
of the world, where many countries are banning the criminal regulation of
adultery and thus casting some doubt over whether criminal regulation is
Adultery and the Constitution | 353No. 2: 2016
helpful for maintaining household integrity and marriage purity. The
decision also reflects the criticism that the criminal law intervenes in the
privacy of the individual and represents an abuse of the state’s punishment
power. It also reflects a weakening of the justification in the recent era for
protecting women as a socially vulnerable class. There are now various
opinions regarding the appropriateness of abolishing the criminal
regulation of adultery, but the most important fact is that it has now been
abolished in Korea by this landmark decision of the KCC.
