[26-2(A) KCCR 226, 2013Hun-Ma423·426 (consolidated), July 24, 2014]

In this case, the Constitutional Court rejected the constitutional complaint on the ground that Article 32 Section 1 of the former ‘Act on Special Cases concerning the Punishment, etc. of Sex Crimes,’ which stipulates that any person who is finally declared guilty of indecent act by compulsion as a person subject to registration of personal information, does not infringe upon complainants’ right to informational self-determination, etc., in violation of the rule against excessive restriction.

Background of the Case

The complainants were finally declared guilty of committing indecent act by compulsion and their personal information thereby became subject to registration for public disclosure pursuant to Article 32 Section 1 of the former ‘Act on Special Cases concerning the Punishment, etc. of Sex Crimes.’ The complainants, arguing that the aforementioned provision as a ground for registration of personal information infringes upon their fundamental rights, filed this constitutional complaint.

Provision at Issue

The subject matter of this case is whether the part providing that ‘any person who is convicted of committing the crime stipulated in Article 298 of the Criminal Code (indecent act by compulsion) among those referred to in Article 2 Section 1 Item 3 is subject to registration of personal information’ in Article 32 Section 1(hereinafter the ‘Instant Provision’) of the former ‘Act on Special Cases concerning the Punishment, etc. of Sex Crimes’(enacted by Act No. 10258 on April 15, 2010 and before fully amended by Act No. 11556 on December 18,

2012, hereinafter ‘the Sex Crimes Special Act’) infringes on the fundamental rights of the complainants. The provision at issue in this case is as follows:

Former Act on Special Cases concerning the Punishment, etc. of Sex Crimes (enacted by Act No. 10258 on April 15, 2010 and before fully amended by Act No. 11556 on December 18, 2012)

Article 32 (Persons Subject to Registration of Personal Information) (1) Any person who is finally declared guilty of committing a crime referred to in any of Articles 2 Section 1 Item 3 and Item 4 and Section 2 (limited to Section 1 Item 3 and 4 of the same Article), Article 3 through Article 10 and Article 14 or who is conclusively declared to be subject to a disclosure order pursuant to Article 37 Section 1 Item 2 shall be subject to registration of personal information (excluding those subject to registration of personal information under Article 33 of the Act on the Protection of Children and Juveniles from Sexual Abuse).

Summary of the Decision

1. Whether the Instant Provision violates the right of informational self-determination

The Instant Provision serves as a ground for collecting and storing personal information of people who are found guilty of committing specific sexual crimes including an indecent act by compulsion. This is a proper means to achieve the legitimate purposes to protect society by curbing the recurrence of sexual crimes and to prevent social confusion through effective investigation. The criminal record or investigation materials administrated and managed pursuant to the Act on the Lapse of Criminal Sentence contain narrower scope of personal information than those collected and stored pursuant to the Instant Provision and do not reflect changes in such information, thereby being unable to provide

same effect as the information collected under the Instant Provision. Also, the series of security measures taken for sexual crimes are applicable to narrower scope of people compared to the Instant Provision. Although the Instant Provision does not consider various types of conduct constituting the crime of indecent act by compulsion or difference in the graveness of illegality, it cannot be considered as imposing unnecessary restriction to achieve the legislative purposes as the comprehensiveness is based on the characters of sexual crimes which include adultery or indecent act by compulsion as the elements of crime. Therefore, the Instant Provision satisfies the least restrictive means requirement. Further, while the restriction imposed on the private interests by the registration of personal information is relatively minor and within acceptable scope, the public interests achieved by the Instant Provision are very important, and therefore, the Instant Provision strikes the balance between legal interests. As such, the Instant Provision does not infringe upon the right of informational self determination.

2. Whether the Instant Provision violates the right to equality

The Instant Provision stipulates specific sexual crimes as subject matters to registration of personal information. Considering the types of crime, the characteristics of legal interests to be protected, social situation, prevailing public sentiment on law, trends of crime, etc., the sexual crimes prescribed under the Instant Provision and other crimes with different legal interests to protect cannot be considered as fundamentally identical groups for comparison in conducting equality review. Therefore the Instant Provision does not violate the right to equality as it is neither arbitrary nor unreasonable.

3. Recommendation to the Legislature

As reviewed before, the Instant Provision does not violate the Constitution. However, given the possibility of a certain exception to the

registration requirement in which personal information is not required to be registered, it is desirable for the legislature to come up with legislative measures that can compensate insufficient process such as appeal procedure.

Summary of Dissenting Opinion by Two Justices

Although one of the important legislative purposes of the Instant Provision is to prevent the recurrence of sexual crimes, the danger of ‘recurrence of crime’ has not been considered in choosing criminals subject to the registration of personal information, thereby imposing unnecessary restriction to achieve the legislative purposes and as a result, violating the least restrictive means requirement. Also, the Instant Provision fails to satisfy the least restrictive means requirement as it could have minimized the scope of crimes subject to the registrationrequirement by considering the characteristics of types of conductconstituting the crime or weighing the relative seriousness of culpability;subdivided categories of criminals subject to registration or periods of registration pursuant to statutory penalty or sentence by court; or provided separate appeal proceedings. Accordingly, the Instant Provisionfails to strike balance between legal interests as it can result in imbalance between the private interests to be infringed and the public interests to be achieved. Therefore, the Instant Provision, in violation of the rule against excessive restriction, runs afoul of the Constitution,infringing upon the complainants’ right of informational self determination.

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