[영문판례]
Disclosure of Personal Information
[25-2(B) KCCR 156, 2011Hun-Ba106·107(consolidated), October 24, 2013]
In this case, the Court upheld the constitutionality of Article 38 Section 1 Item 1 of the former Act on the Protection of Children and Juveniles from Sexual Abuse that mandate the court to order the disclosure of personal information in case a person commits sexual assault against a child or juvenile.
Background of the Case
Following prosecution on charges including adultery with a minor less than 13 years old, the complainants were convicted and ordered to disclose their personal information. Thus, they filed for motion to request constitutional review of Article 38 Section 1 Item 1 of the Act on the Protection of Children and Juveniles from Sexual Abuse, which requires the court to order offenders of sexual assault against a child or juvenile to disclose their personal information. When this request was denied, the complainants filed this constitutional complaint.
Provision at Issue
The subject of review is the constitutionality of Article 38 Section 1 Item 1 of the former Act on the Protection of Children and Juveniles from Sexual Abuse (amended as Act No. 10260, Apr. 15, 2010 but before revised as Act No. 11572, Dec.18, 2012)(hereinafter referred to as the “Provision”), which is set out below:
Act on the Protection of Children and Juveniles from Sexual Abuse (Amended as Act No.10260, Apr. 15, 2010 but before revised as Act No. 11572, Dec. 18, 2012)
Article 49 (Disclosure of Registered Information)
(1) With respect to any of the following persons, the court shall
pronounce an order to disclose information prescribed in paragraph(3) through an information and communications network during the registration period prescribed in Article 45(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (hereinafter referred to as “order to disclose information”) in concurrence with a judgment on a sex offense case against a child or juvenile: Provided, That the same shall not apply where the accused is a child or juvenile, or any other special circumstance against disclosure of personal information exists.:
1. A person who commits sexual assault against a child or juvenile;
Summary of the Decision
1. Review on Rule against Excessive Restriction
The Provision aims to protect children and juveniles from sexual abuse and to defend society, which indicates that it serves legitimate purpose and appropriate means. Meanwhile, the scope of those affected and the period of personal data disclosure under the provision is limited. The judge decides whether to order disclosure considering “particular circumstances.” There are mechanisms to minimize the damage from disclosure. All of the above indicate that the least restrictive means have been used. Moreover, the purpose of “protecting children and juveniles from sexual abuse” is a very significant public interest compared to the private interest infringed by the provision, which strikes a balance of interests as well. For this reason, the Provision does not violate the least restrictive means requirement or infringe on the complainants' right to personal liberty and self-determination over personal information.
2. Review on Principle of Equal Protection before the Law
Unlike those who commit sexual violence offense against children and juveniles, those who commit regular crimes against children and
juveniles are not obligated to disclose their personal information. But the two cannot be seen as identical comparison groups as regular crimes against children or juveniles, unlike sexual crimes, is criminalized in order to protect life, physical integrity, or property rights of juveniles. Meanwhile, those who commit sexual offenses other than sexual assault against children and juveniles are not subject to disclosure of personal information either, but this distinction is based on an overall consideration of the extent of illegality, social circumstances at time of legislation, public legal sentiment, etc. This means it cannot be seen as arbitrary and unreasonable discrimination. Therefore, the Provision is not in violation of the principle of equal protection before the law.
3. Review of Other Claims by Complainants
The complainants contest that the Provision violates due process and their right to trial, but it is only when the defendant is convicted that thejudge can order disclosure of personal information after full considerationof various circumstances. In this sense, the Provision cannot be deemed to violate due process or infringe on the complainants' right to trial.
The complainants also allege that the Provision breaches the double jeopardy principle. However, this doctrine is designed to bar multiple convictions for the same offense. Imposing penalty and ordering personal information disclosure at the same time in a single trial addressing the same criminal act is irrelevant to double jeopardy.
Dissenting Opinion of Two Justices
The Provision serves legitimate purpose, but studies about sexual violence crimes against children and juveniles do not confirm the deterrence effect of disclosing personal information, which indicates that the Provision fails to provide an appropriate means. The personal information disclosure under the Provision is executed through
information and communication networks, which resembles the badge of shame as the modern version of the “scarlet letter.” This is not just a matter of stigma or exclusion against ex-offenders of sexual abuse. The disclosure is highly likely to foreclose the possibility of the offenders' normal return to society; may cause mental pain even to innocent family members and deprive them of their foundation for livelihood; and the scope of those affected by disclosure is too broad as there is no detailed standard for review, for instance risk of recidivism, while the judge is obliged in principle to order disclosure of personal information. Thus, the Provision hardly satisfies the least restrictive means requirement. Also, the crime deterrence effect is too uncertain while the offenders' fundamental rights are seriously undermined, which even fails to achieve the balance of interests. Therefore, the Provision is in breach of the Constitution as it violates the rule against excessive restriction and infringes on the complainants' right to personal liberty and self- determination over personal data.