1.Case on Prohibition of Filing a Complaint against Lineal Ascendants

[23-1(A) KCCR 12, 2008Hun-Ba56, February 24, 2011]

Questions Presented

Whether Article 224 of the Criminal Procedure Act (enacted by Act No. 341 on September 23, 1954; hereinafter, the 'Instant Provision'), which does not allow a person to file a complaint against his/her lineal ascendant(s), violates the principle of equality (negative)

Summary of Decisions

A victim's right to make a complaint against an alleged criminal offender is merely a legal right stipulated in the criminal procedural laws, over which the legislature should exercise extensive policy- making power considering the nation's traditional judicial culture, morality and cultural traditions as well as the purpose pursued. With regard to family matters, traditional morality plays a more important role, and such traditional morality is inherently affected by the nation's distinct cultural and moral traditions, which have been chosen and accumulated by the people of the nation and society, as well as universal values and ethics. Parts of the Confucian tradition, which our country adopted and made part of our tradition over a long period of time, still remain as an innate part of our morality. In this respect, the Instant Provision appears to be reasonable in its differential treatment in restraining a descendant of the would-be accused, from exercising the right to file complaints when that prohibition is for the purpose of deterring the unethical nature of such complaint and maintaining our tradition of 'Hyo,' the filial duty of children to take care of their parents. Therefore, the Instant Provision does not violate the principle of equality set by Article 11 Section 1 of the Constitution.

Opinion of Unconstitutionality by Justice Lee Kong-Hyun, Justice Kim Hee-Ok, Justice Kim Jong-Dae, Justice Lee Dong-Heub,

Justice Mok Young-Joon

The Instant Provision aims to maintain the basic order in the family system founded upon the Confucian tradition and this legislative goal is legitimate. However, its way of restricting the basic right, in other words, depriving certain victims of their right to file complaints in criminal proceedings, appears to be problematic in terms of proportionality between the purpose and the extent of such differential treatment. While an ascendant-descendant relationship can be a factor to be considered in determining the gravity of a crime in terms of the nature of the crime and the responsibility of the perpetrator, it shall not be a reason to deny the State's exercise of its power to punish criminals. We cannot see a reasonable balance between the aim and means in differential treatment among victims of criminal offences, especially when the government renounces its power to criminally punish ascendants that do not deserve protection of the law, while neglecting its duty to protect descendants as criminal victims. Moreover, the deprivation of the victim's right to file complaints cannot be regarded to be the only and absolutely necessary measure to be taken in maintaining the basic order of the family system.

Hence, the Instant Provision does not provide a proportionate means to achieve the objective of the differential treatment, in violation of the principle of equality.

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Parties

PetitionerSuh, ○-HyeonRepresentative: Jung, Bo-Keun

Underlying caseSeoul High Court 2008ChoJae687 Petition for Adjudication

Holding

Article 224 of the Criminal Procedure Act (enacted by Act No. 341 on September 23, 1954) does not violate the Constitution.

Reasoning

I. Introduction of the Case and Subject Matter of Review

A. Introduction of the Case

1.Petitioner, after being found not guilty of several charges including injury to lineal ascendant, etc., for which his mother named Oh, X Rae had filed a complaint against, in turn filed a complaint against his mother alleging false accusation and malicious perjury. But, on December 26, 2007, the prosecutor dismissed the complaint, thereby not instituting an indictment, on the ground that the complaint, filed against his lineal ascendant, violates Article 224 of the Criminal Procedure Act (Suwon District Prosecutors' Office, 2007HyungJae90858).

2.The petitioner appealed against the prosecutor's non-charge decision and filed a petition for adjudication by the court pursuant to the Prosecutors' Office Act (Seoul High Court, 2008ChoJae687).

While pending the suit, the petitioner moved the court to file a request for a constitutional review of Article 244 and Article 235 of the Criminal Procedure Act, but upon dismissal, the complainant filed this constitutional complaint on June 12, 2008.

B. Subject Matters of Review

The petitioner requests constitutional review over Article 224 (limitation of complaint) and Article 235 (limitation of accusation), but the underlying case pertains to filing a petition for adjudication by the court after the complaint against his own lineal ascendant was

dismissed by the prosecutor who rendered a non-charge decision, and the one who can file a petition for adjudication by the court refers to the one who has filed a complaint. In this regard, the issue in the underlying case is limited to the constitutionality of the statutory provision limiting the filing of a complaint, which is Article 224 of the Criminal Procedure Act. Therefore, the question presented for the Court's review is whether Article 224 of the Criminal Procedure Act (enacted by Act No. 341 on September 23, 1954) is in violation of the Constitution. The provision subject to review is as follows.

[Provisions at Issue]

The Criminal Procedure Act (enacted by Act No. 341 on September 23, 1954)

Article 224 (Prohibition on Filing a Complaint Requesting Initiation of Prosecution) A complaint shall not be lodged against a lineal ascendant of the principal himself/herself or his/her spouse.

[Related Provision]

(Intentionally omitted)

II. Arguments of Complainants and Related Bodies

(Intentionally omitted)

III. Review on Justiciability

Constitutional complaints filed pursuant to Article 68 Section 2 of the Constitutional Court Act must meet the following requirement: relevance of precondition of the challenged statute for the underlying case. And the relevance of precondition here means the requirement that constitutionality of a challenged statute be a precondition for disposition of the underlying case and therefore, the decision to be rendered by the Constitutional Court concerning whether the provision at issue is constitutional or not may alter the conclusion on the holding of the underlying case or change the legal significance with

respect to the contents and effect of the underlying case (see 19-1 KCCR 482, 498-499, 2006Hun-Ba10, April 26, 2007).

In this case, when the petitioner filed a motion to request for a constitutional review of the Instant Provision, the underlying case, or the petition for adjudication by the court, was pending. The Instant Provision, serving as the statutory basis for the prosecutor's non-charge decision against which the petitioner filed a petition for adjudication by the court, applies to the underlying case. And, since the decisionregarding constitutionality of the Instant Provision may alter the holding of the underlying case or change the legal significance with respect to the contents and effect of the underlying case, the constitutional complaint fulfils the requirement that the Instant Provision be a precondition for the adjudication of the underlying case.

Meanwhile, although the underlying case, or the petition for adjudication by the court, was concluded as the decision to dismiss was finalized, it cannot be said that the constitutional complaint in this case ceases to meet the requirement that the Instant Provision be a precondition for the adjudication of the underlying case, as Article 75 Section 7 of the Constitutional Court Act stipulates that the party may request a retrial of the case before the court when a constitutional complaint prescribed in Article 68 Section 2 of the Constitutional Court Act is upheld and when the underlying case has already been decided by a final judgment.

IV. Review on Merits

A. Review on the Legislative History and Purposes of the Instant Provision

The Instant Provision is based on our historical ideology of "Hyo," or the Confucian tradition of the filial duty imposed on children to take care of their parents or grandparents. According to this tradition, it is regarded as a fine custom for a child to endure any harm that may be caused by their parents or grandparents and to file a criminal complaint against one's parents or grandparents has been regarded as

an action against morality.

While the Criminal Procedure Act during the time of Japanese Occupation, which was identically modeled after Japanese Criminal Procedure Act, prohibited complaints or accusations only against one's parents or grandparents (Article 259 and Article 270), the Instant Provision prohibits complaints or accusations even against a lineal ascendant of the principal's spouse. This ideological basis of the prohibition placed on complaints against lineal ascendants dates from the criminal justice system in the Josun Dynasty.

"Gyongguk Daejeon," or the Great Code of National Governance in the Joseon Dynasty, in its "Hyeongjeon," the criminal law part of the Great Code, clearly stipulated that "in case when a descendant, a wife, a concubine or a slave accuses one's parents or a head of household for their wrongdoings, he/she shall be executed by hanging except when a case is related to a rebellion or treason; and when a spouse of a slave accuses a head of household in the master's family for his wrongdoing, he/she shall be sentenced to get 40 lashes and is to besent into exile to a 3000ri-off place." "Sok Daejeon," the Supplement to the Create Code, also stipulates in its "Hyeongjeon (criminal law)," that "if a descendant accuses his/her parents or grandparents of their wrongdoings, he/she shall be punished by law, thereby reinforcing ethics and morals by bringing people to justice without looking into the merits," which was inherited by "Daejeon Tongpyeon," the UnifiedCreate Code and "Daejeon Hoetong," the Compendium of the Great Code.

B.Guarantee of the right of complaint and protection of complainant' rights

1. Meaning of complaint

A "complaint" is when a victim of a crime or anyone who has a certain relationship with the victim reports the crime to an investigation agency and expresses intention seeking punishment of the alleged criminal offender. In case of a crime requiring victim's complaint, filing a complaint is a prerequisite condition for bringing

the claims, whereas in case of a crime not subject to a complaint, filing a complaint is a cause for initiating an investigation.

2.Guarantee of the right of complaint and relatedness to basic rights

Article 246 of the Criminal Procedure Act, by stipulating that a public prosecution shall be instituted and executed by public prosecution, prohibits a prosecution by a private party and adopts the principle of state prosecution and the principle of prosecution exclusively by a public prosecutor. But it exceptionally allows quasi-prosecution procedures.

The constitutional guarantee of the crime victim's right to he heard at the proceedings of a trial under Article 27 Section 5 of the Constitution which prescribes that "a victim of a crime shall be entitled to make a statement during the proceedings of the trial of the case involved as under the conditions prescribed by law" is also based on the principle of state prosecution.

As such, under the legal system where the state agency exclusively holds the right to prosecute, it is required that the exercise of victim's right to make a complaint should be guaranteed and the complainant's rights should be extensively and broadly acknowledged, so that they may be sufficiently protected (see 11-1 KCCR 73, 79, 98Hun-Ma85, January 28, 1999).

Victim's right to make a criminal complaint for a crime that infringes upon his/her legal rights is the most basic right as a member of our society. Although such a right is not a basic right guaranteed by the Constitution, the right is regarded as a direct premise of the right to be heard at the trial proceedings. Therefore, a discussion as to whether the right of complaint is infringed should lead to a discussion as to whether the right to be heard at the trial proceedings, one of the basic rights guaranteed by the Constitution, is infringed.

C. Review of constitutionality of the Instant Provision

Article 11 Section 1 of the Constitution stipulates that "[a]ll citizens shall be equal before the law and there shall be no discrimination in political, economic, social or cultural life on account of sex, religion or social status."

The Instant Provision prohibits a person, who has a special relationship called "Bi-Sok," i.e. descendant, with the accused, from exercising the right to file complaints against a lineal ascendant of the person himself/herself or his/her spouse and the issue here is whether the Instant Provision which limits the right to file complaints due to the difference in status violates the principle of equality guaranteed by Article 11 Section 1 of the Constitution.

In general, for purposes of ascertaining violation of equality, the principle against arbitrariness is employed, but in those cases where the Constitution specially demands equality or where differential treatment causes a significant burden on the related fundamental rights of other individuals, the constitutional review shall be conducted using a strict standard of the principle of proportionality (11-2 KCCR 771, 787-789, 98Hun-Ma363, December 23, 1999; 11-2 KCCR 732, 749, 98Hun-Ba33, December 23, 1999; 12-2 KCCR, 167, 181, 97Hun-Ka12, August 31, 2000).

As the principle against arbitrariness as a standard of review only examines the existence of any reasonable ground that would legitimize discrimination, it is enough to find and confirm the actual difference between the subjects to be compared or legislative purposes (purposes to discriminate). Whereas strict scrutiny based on the principle of proportionality reviews the relationship between the discrimination and any reasons that legitimize such discrimination beyond the mere existence of legitimate reasons, in other words, the nature of difference and relative importance between the subjects to be compared or the appropriate balance between the gravity of legislative purposes (purposes to discriminate) and the degree of discrimination (KCCR 13-1, 386, 403, 2000Hun-Ma25, February 22, 2001).

D. Opinion of Constitutionality by Justice Lee, Kang-Kook, JusticeCho, Dae-Hyun and Justice Min, Hyeong-Ki, Justice Song, Doo-Hwan

1. Issue of the case and standard of review

(A)The victim's right of complaint is not a fundamental right under the Constitution but a mere legal right guaranteed by the Criminal Procedure Act. On the other hand, it becomes the prerequisite for citizen's exercising the right to be heard at the criminal proceedingsunder Article 27 Section 5 of the Constitution. In this regard, therefore,it is required to review whether the Instant Provision causes serious limitation in the exercise of the victim's right to be heard at the criminal proceedings.

(B)The victim's right to be heard at the criminal proceedings depends on initiation of prosecution (see 149 KCCG 451, 458, 2005Hun-Ma764, February 26, 2009).In the case of a crime not subject to victim's complaint, as prosecution can be commenced regardless of filing of a complaint by the victim, the Instant Provision only causes indirect or actual restriction on the exercise of the victim's right to be heard at the criminal proceedings and therefore, it does not pertain to a case where the right to be heard at criminal proceedings is severely restrained.

On the other hand, in the case of crimes subject to victim's complaint, it is undeniable that due to the Instant Provision, a victim who is a descendent of a criminal cannot exercise his/her right to be heard at the criminal proceedings in principle, with only a few exceptions, and therefore, his/her right to be heard at the criminal proceedings is severely restrained.

However, even for some crimes among crimes subject to victim's complaint, certain special Acts {including Article 18 of the Act on Punishment of Sexual Assault and Protection of Victims (enacted asAct No.4702 on January 5, 1994; the provision is transferred to Article19 of the Special Act on Punishment, etc. of Sex Crimes enacted as Act No. 10258 on April 15, 2010) and Article 6 Section 2 of the Special Act on Punishment, etc. of Domestic Violence Crimes (enacted

as Act No. 5436 on December 13, 1997)}allow a person to press charges against his/her lineal ascendant. Therefore, the Instant Provisionprohibiting an alleged victim from filing a complaint against his/her lineal ascendant can be applied to only a small number of crimes such as 'Violation of Private Secrecy' (the Article 316 of Criminal Act) or 'Occupational Disclosure of Client or Patient(the Article 317 of Criminal Act).

Also, when a perpetrator who is a lineal ascendant of the victimisalsothe victim's legalrepresentative, although the victim as a descendantof the perpetrator cannot directly file a complaint, victim's relatives may file a complaint on behalf of the victim (see Article 26 of the Criminal Procedure Act), and in most cases involving financial crime by lineal ascendants committed against their descendants, as the practice allowing special exception to crimes among relatives applies, actual benefits for filing a complaint become marginal.

Considering all these facts, the Instant Provision does not appear to severely restrict the victim's right to be heard at criminal proceedings regardless of whether a crime is subject to a victim's complaint or not.Therefore, it is enough for the Court to apply the principle against arbitrariness, which is a relaxed standard of review, and examine whether there are any reasonable grounds for such discrimination,in determining whether the principle of equality is violated by the Instant Provision.

2.Whether the discrimination is based upon reasonable grounds

As reviewed above, the victim's right of complaint is only a legal right under the criminal procedure, not a basic right guaranteed by theConstitution. Therefore, the legislature enjoys extensive legislative powerto make related statutes, considering the nation's traditional judicial culture, morality and cultural tradition as well as the purpose to be pursued.

Also, systemically considering the related statutory provisions as a whole, the Instant Provision prohibiting an alleged victim from filing a

complaint against his/her lineal ascendant is applied to only a few limited crimes whose seriousness in damages are relatively low because victims of domestic violence or sex crimes are excluded bystipulation of Special Acts as reviewed. Therefore, it is highly probable that legislation of a statutory provision prohibiting a descendant (Bi-Sok) from filing a complaint against his/her lineal ascendant fallsina category where the legislature has a wider range of legislative-formative power to pursue specific ethical or social purposes.

A lineal ascendant subject to the Instant Provision is a first-hand relationship formed by blood relationship and marriage, different from any other relationships formed by contracts, and is maintained by spiritual and moral values like understanding, love and commitment, not by interests or profits represented by efficiency and rationality. Within this area, the role of traditional morality and ethics, rather than that of law, as buttress of society can only be more emphasized and valued.

Law inevitably shares a certain common ground with morality, and at the bottom of our legal mindset, individualism affected by modern western ideals and Confusion tradition centered on community and blood relationship coexist.

Lineal ascendants exert themselves to provide for the emotional and physical upbringing of their descendants and also give protection, while descendants have the duty to share responsibility as family members, and to appreciate and respect ascendants. The essence of the relationship between lineal ascendants and descendants seems to be common in any society, but the discipline of such relationship is strongly affected by the nation's distinct cultural and moral traditions, which have been chosen and accumulated by the people of the nation and society, as well as universal values and ethics. In our society, parts of the Confucian tradition, which our country adopted and made part of our tradition over a long period of time, still remain as an innate part of our morality, despite adoption of modern western ideals. In regulating relationships among blood relatives where realization of self-regulating ethics is emphasized, abstract and open-ended Confucian

norms have played a more important role than detailed and specific statutory provisions, among which, respect for one's parents has been considered as the highest moral virtue above anything else. Thus, it is natural that a statute regulating relationship between lineal ascendant and descendant in our society accepts this 'Hyo' tradition, or the filial duty of children to take care of and respect one's parents.

In this regard, prohibiting a descendant from filing a complaint against his/her linear ascendant to deter such unethical behavior and toprotect our traditional norms appears to be reasonable in its differentialtreatment.

Despite the prohibition, as other relatives still may file a complaint against the relevant lineal ascendant who is an alleged perpetrator on behalf of the victim, the lineal ascendant who commits a crime cannot absolutely evade punishment.

Also, the Instant Provision's purpose is to deter the unethical act of descendant by placing limitation on filing a complaint directly against his/her ascendant, not to discriminately protect lineal ascendants. Thus, though lineal ascendants including those who are not worthy of protection receive benefit as a result, it is not a special treatment provided by the statute but an incidental benefit that goes with constraining the descendant's unethical practice.

3.Sub-conclusion

For the foregoing reasons, the Instant Provision which prohibits a descendant from filing a complaint against his/her lineal ascendant is reasonable in its differential treatment, and therefore, it does not violate the principle of equality under Article 11 Section 1 of the Constitution.

E. Opinion of Unconstitutionality by Justice Lee, Kong-Hyun, Justice Kim, Hee-Ok, Justice Kim, Jong-Dae, Justice Lee, Dong-Heub

and Justice Mok, Young-Joon

As we think that the Instant Provision which prohibits a descendant from filing a complaint against his/her lineal ascendant runs counter to the Constitution, in violation of the principle of equality, we hereby unfold our opinion.

1. Standard of review

The Instant Provision does not simply exclude or deprive a descendant who is a victim of crime of the mere legal right of filing a complaint, but causes serious restraint on the exercise of the right to be heard at criminal proceedings guaranteed by the Constitution as a basic right.

This serious restraint is clearly visible in crimes requiring victim's complaint for initiation of prosecution. It is true that among those crimes, the number of crimes subject to the Instant Provision has dramatically decreased since some special Acts, such as Article 18 of the Act on Punishment of Sexual Assault and Protection of Victimsand Article 6 Section 2 of the Special Act on Punishment, etc. of Domestic Violence Crimes, have been enacted.But, if we simply decidethat the problem of serious infringement on the basic right is resolved due to the enactment of the special Acts, it is nothing but acknowledging the premise that without the special Acts, general restriction on the right of complaint may become a serious infringement of basic rights. And the degree of seriousness in limitation on the right to be heard at criminal proceedings caused by a statutory provision that limits the right of complaint cannotbe decided based on the broadness or narrowness of scope of crimes subject to the statutory provision or the severity of statutorypunishment.Absolute deprivation of the right to file a complaint itself directly leads to a serious restriction on the right to be heard at criminal proceedings regardless of the scope and seriousness of crimes applicable.

Likewise, in cases of crimes not requiring victim's filing of charges for initiation of prosecution, a serious constraint on the victim's right

to be heard can be incurred. Depending on other people such as relatives, rather than the victim himself/herself, to exercise the power to fight against the impairment of one's legal interest, does not conform to the contemporary legal philosophy where the individual has attained the status to exercise one's own rights, and brings about a serious restriction on the right to be heard.

Therefore, the Court should review this case applying a strict scrutiny standard.

2. Whether the principle of equality is violated

The Instant Provision aims to maintain the basic order in the family system founded upon the Confucian tradition and this legislative goal is legitimate. It is widely accepted that when a state takes the protection of culture or morality as a legislative purpose, it can encourage such protection to the fullest by providing material and systemic support. However, its way of restricting the basic right, or in other words, depriving certain victims of their right to file complaints in criminal proceedings to promote traditional morals, appears to be problematic in its proportionality between the purpose and the extent of such differential treatment.

While an ascendant-descendant relationship can be a factor to be considered in determining the gravity of a crime in terms of the nature of the crime and responsibility of the perpetrator, it shall not be a reason to deny the State's exercise of its power to punish criminals. Under the Criminal Procedure Act, filing a complaint can be either a prerequisite condition for bringing the claims or a cause for initiating an investigation, depending on the type of crimes andfor those who file a complaint, many procedural protections are guaranteed.Therefore, regarding the Instant Provision's prohibiting a victim from filing a complaint against lineal ascendants of himself/herself or his/her spouse only because the victim is a Bi-Sok (descendant), we cannot see a reasonable balance between the aim and means in having the

differential treatment among victims of criminal offences, especially when the government renounces its power to criminally punish ascendants who do not deserve protection of the law, while neglecting its duty to protect descendants as criminal victims, going beyond its legislative purpose to maintain the basic order of family. It is more so in modern society because family nowadays is not considered as an authoritative institution centered on the head of family with other family members obeying him, but as a democratic relationship in which every member of the family is respected and esteemed as an individual with personality.

Even when a descendant is allowed to file a complaint against lineal ascendants, existence of facts constituting a crime does not necessarily lead to formal prosecution and trial. Since there are many other proceedings before the formal prosecution stage such as non-prosecution,suspension of prosecution or summary prosecution, a proper and case specific measure can be applied in consideration of detailed facts of the case, special relationship between lineal ascendant and descendant and the existence and degree of malice of the relevant ascendant, etc. The absolute deprivation of the victim's right to file a complaint without providing any possible measure even before formal prosecution simply because the victim is a descendant and the perpetrator is a lineal ascendant cannot be regarded to be the only and absolutely necessary measure to be taken to maintain the basic order of family system in dealing with a criminal case that may occur between lineal ascendant and descendant.

3. Sub-conclusion

Hence, the Instant Provision does not provide a proportionate means to achieve the objective of the differential treatment, in violation of the principle of equality.

V. Conclusion

Regarding the Instant Provision, four Justices issue the opinion ofconstitutionality and five Justices issue the opinion of unconstitutionality. Despite the opinion of unconstitutionality is a majority, it falls short of the quorum of six or more votes required for the decision of unconstitutionality. Therefore, we find that the Instant Provision does not violate the Constitution and hereby decide as the holding of the Court.

Justice Lee, Kang-Kook (Presiding Justice), Lee, Kong-Hyun,Cho, Dae-Hyun,Kim, Hee-Ok (unable to sign and seal due toretirement), Kim, Jong-Dae,Min, Hyeong-Ki, Lee, Dong-Heub,Mok, Young-Joon, Song, Doo-Hwan