Case on the Restriction on Employment of Medical Personnel that Have Committed a Sex Offense against an Adult

[2013Hun-Ma585ㆍ786, 2013Hun-Ba394, 2015Hun-Ma199ㆍ1034ㆍ1107 (consolidated), March 31, 2016]

In this case, the Constitutional Court held that the provision concerning “person sentenced to a penalty for committing a sex offense against an adult and for whom such sentence is made final and conclusive” in Article 44 Section 1 Item 3 of the former ‘Act on the Protection of Children and Juveniles against Sexual Abuse,’ which restricts persons sentenced to a penalty for committing a sex offense and for whom such sentence is made final and conclusive from establishing or working for medical institutions for ten years from the date on which the execution of the penalty is terminated, and the provision concerning “one sentenced to a penalty for committing a sex offense against an adult and for whom such sentence is made final and conclusive” in Article 56 Section 1 Item 12 of the ‘Act on the Protection of Children and Juveniles against Sexual Abuse’ infringe on the freedom to choose one’s occupation. However, the Constitutional Court held that Article 3 of the Addenda to the former Act on the Protection of Children and Juveniles against Sexual Abuse, which prescribes that the above restrictions on employment are applied from the first person in whose case a sentence of punishment becomes final and conclusive after the aforesaid provision of the same Act enters into force, does not violate the Constitution.

Background of the Case

* The six consolidated cases differ in that the Instant Provisions involve the former and current laws, but the outlines of these cases are all similar, which is why one “leading case”, or earliest-filed case, each from the former and current laws, are listed.

[2013Hun-Ma585] (Former law is the subject matter of review)

On August 20, 2012, complainant 1 was notified of a summary order for a fine of three million won on a charge of quasi-indecent act by compulsion, and the sentence was finalized on October 23, 2012. Around April 2013, when the complainant was working at Baengnyeong Hospital in Jinchol-ri, Baengnyeong-myeon, Ongjin-gun, Incheon as a public health doctor, the Superintendent of Incheon Nambu Police Station notified the complainant of being subject to restriction on employment by a medical institution under Article 44 of the former ‘Act on the Protection of Children and Juveniles against Sexual Abuse,’ after which, on May 22, 2013, the Mayor of Incheon ordered that the complainant be transferred to the Incheon Fire & Safety Management Department, a non-medical institution. Thereupon, the above complainant filed a constitutional complaint on August 19, 2013, on the grounds that Article 44 Section 1 Item 13 of the above Act and Article 3 of the Addenda to the same Act infringe on the complainant’s freedom of occupation and right to equality, and that they violate the principle against retroactivity referred to in Article 13 Section 2 of the Constitution.

[2015Hun-Ma199] (Current law is the subject matter of review)

On December 11, 2013, complainant 4, a hospital director that had established and was operating an internal medicine clinic, was sentenced to imprisonment with labor for eight months on a charge of indecent act by compulsion, and then appealed to the High Court and was sentenced, on September 4, 2014, to a fine of five million won, and this sentence was made final and conclusive following the dismissal of the complainant’s appeal to the Supreme Court on November 27, 2014. Subsequently, the above complainant reported business closure in adherence to the guidelines on the voluntary reporting of business closure provided by the Mayor of Seongnam, and closed his medical institution on January 27, 2015. The complainant then filed a constitutional complaint on February 26, 2015, on the grounds that Article 56 Section 1 of the ‘Act on the Protection of Children and Juveniles against Sexual Abuse’ and Article 7 of the Addenda to the

same Act infringe on the complainant’s freedom of occupation and right to equality.

Subject Matter of Review

The subject matters of this case are whether: ① the provision concerning “person sentenced to a penalty for committing a sex offense against an adult and for whom such sentence is made final and conclusive” in Article 44 (1) 13 of the former ‘Act on the Protection of Children and Juveniles against Sexual Abuse’ (amended by Act No. 11287 on February 1, 2012, but prior to amendment by Act No. 11572 on December 18, 2012) (hereinafter referred to as the “Instant Provision of the Former Act”) and the provision concerning “one sentenced to a penalty for committing a sex offense against an adult and for whom such sentence is made final and conclusive” in Article 56 Section 1 Item 12 of the ‘Act on the Protection of Children and Juveniles against Sexual Abuse’ (wholly amended by Act No. 11572 on December 18, 2012; hereinafter the ‘Act on the Protection of Children and Juveniles against Sexual Abuse’ and the former equivalent, the ‘Act on the Protection of Juveniles against Sexual Abuse,’ are collectively referred to as the “Acts”) (hereinafter referred to as the “Instant Provision of the Current Act”; hereinafter the former provision and new provision are collectively referred to as the “Instant Provisions”); and ② Article 3 of the Addenda to the ‘Act on the Protection of Children and Juveniles against Sexual Abuse’ (amended by Act No. 11287 on February 1, 2012) (hereinafter referred to as the “Instant Addendum”) violate the Constitution or the basic rights of the complainants.

Provisions at Issue

Former Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act No. 11287 on February 1, 2012, but prior to amendment by Act No. 11572 on December 18, 2012)

Article 44 (Restriction, etc. on Employment by Child or Juvenile- Related Educational Institutions, etc.)

(1) No person sentenced to a penalty or medical treatment and custody for committing a sex offense against a child, juvenile, or adult (hereinafter referred to as “sex offense”) and for whom such sentence is made final and conclusive shall engage in the business providing educational services directly to children and juveniles by visiting their homes, nor operate any of the following facilities or institutions (hereinafter referred to as “child or juvenile-related educational institution, etc.”), nor work for or provide actual labor to a child or juvenile-related educational institution, etc. for ten years from the date on which the execution of such penalty or medical treatment and custody is terminated, or wholly or partially suspended or exempted:Provided, That for the purposes of Item 11, the same shall apply only to those engaging in security guard business, and for the purposes of Item 13, the same shall apply only to medical personnel defined in Article 2 of the Medical Service Act.

13. Medical institutions defined in Article 3 of the Medical Service Act.

Act on the Protection of Children and Juveniles against Sexual Abuse (wholly amended by Act No. 11572 on December 18, 2012)

Article 56 (Restrictions, etc. on Employment at Child or Juvenile- Related Educational Institutions, etc.)

(1) No one sentenced to a penalty or medical treatment and custodyfor committing a sex offense against a child, juvenile, or adult (hereinafter referred to as “sex offense”) and for whom such sentence is made final and conclusive (excluding persons sentenced to punishment of a fine under Article 11 Section 5) shall provide educational services directly to children and juveniles by visiting their homes, or operate any of the following facilities or institutions (hereinafter referred to as “child or juvenile-related institution, etc.”), or work for or provide actual labor to a child or juvenile-related institution, etc. for ten years from the date

on which the execution of such penalty or medical treatment and custody is wholly or partially terminated, or suspended or exempted:Provided, That for the purposes of Items 10 and 14, the same shall apply only to those performing security guard duties, and for the purposes of Item 12, the same shall apply only to medical personnel defined in Article 2 of the Medical Service Act.

12. Medical institutions defined in Article 3 of the Medical Service Act.

Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (Act. No. 11287, February 1, 2012)

Article 3 (Applicability to Restrictions, etc. on Employment by Child or Juvenile-Related Educational Institutions, etc.)

The amended provisions of Articles 44 and 45 shall apply from the first person in whose case a sentence of punishment or medical treatment and custody concerning a sex offense against a child or juvenile or an adult becomes final and conclusive after this Act enters into force.

Summary of the Decision

1. Whether the Phrase “Sex Offense against an Adult” Violates the Rule of Clarity

Judging by its wording, the phrase “sex offense against an adult” can be interpreted as a sex-related crime against an adult victim, in the form of a crime that infringes on another person’s right to sexual self-determination, or a crime that involves an adult and infringes on the sound sexual culture of a society; and judging by the legislative purposes of the Instant Provisions, a crime which also requires restriction on employment by medical institutions. In addition, by examining the content related to “sex offense against a child or juvenile” stipulated in the Acts, it can be presupposed that a “sex offense against an adult” will be subject to regulation similar to the regulation for a “sex offense

against a child or juvenile,” and the content of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, which has a close legal connection with the Acts in that it prevents sex offenses and protects victims, is also helpful in understanding what constitutes a “sex offense against an adult.” The above shows that the phrase “sex offense against an adult” cannot be considered unclear, and therefore does not violate the rule of clarity under the Constitution.

2.Whether the Instant Provisions Infringe on the Freedom ofOccupation

The Instant Provisions have the legislative purposes of protecting children and juveniles from potential sex offenses, and enhancing the ethics and credibility of medical institutions to allow for children and juveniles and their guardians to trust, use and rely on these institutions, by guaranteeing the quality of the operator or employee of a medical institution to a certain extent, and the legislative purposes are therefore found to be legitimate, and the restriction on the employment of former sex offenders by medical institutions for a certain period can be considered an appropriate means. However, the Instant Provisions take it for granted that a person with a sex offense record will commit the same type of crime in the future, deem that the risk of recidivism will not be eliminated until ten years from the date the execution of the penalty is terminated, and overlook the necessity for different penalties based upon the nature of the crime, thus violating the principle of the least restrictive means by imposing a uniform ten-year employment restriction on persons with a sex offense record but who do not hold the risk of recidivism; persons who have a sex offense record but for whom the risk of recidivism is likely to be resolved within the ten-year period; and persons whose offense is trivial and whose risk of recidivism is not comparatively high. Further, such restrictions violate the balance of interests for they extend beyond the level of endurance that our society should demand of the complainants. Therefore, the Instant Provisions

infringe on the freedom of occupation of the complainants.

3.Whether the Instant Addendum Violates the Principle AgainstRetroactivity, etc.

The Instant Addendum prescribes that the restriction on employment by medical institutions shall apply from the first person in whose case a sentence of punishment becomes final and conclusive after the Act on the Protection of Children and Juveniles against Sexual Abuse (amended by Act. No. 11287, February 1, 2012) enters into force, but since the restriction on employment is not a punishment, the principle against retroactivity prescribed in the former part of Article 13 Section 1 of the Constitution does not apply.

To the end of effectively handling the risk of recidivism of a sex offender, it is deemed necessary, given the potential risks, to impose restrictions on the employment of persons whose sentencing to punishment became final and conclusive after this Act entered into force, even if the relevant crime was committed before this Act entered into force, and the Instant Addendum does not impose the employment restriction retroactively on all persons who have committed a sex offense, but limits the restriction to those whose sentencing to punishment has been made final and conclusive after the Act entered into force. Moreover, the determination as to whether a person is subject to restriction on employment should be made on the basis of when the restriction on employment would begin, to ensure the effectiveness of the employment restriction measure; and additional measures can be adopted if it is decided that the measures currently being implemented are insufficient for securing public interest. Thus, it is difficult to say that the Instant Addendum excessively restricts basic rights.