28.The Scope of National Police Officials Subject to the Property Registration

[22-2(B) KCCR 285, 2009Hun-Ma544, October 28, 2010]

In this case, the Constitutional Court decided the Enforcement Decree of the Public Service Ethics Act which prescribes that assistant inspectors of national police officials shall register property does not violate the right to privacy and right to equality.

Background of the Case

Article 3 Section 1 Item 13 of the Public Service Ethics Act and Article 3 Section 4 Item 6 of the Enforcement Decree of the Public Service Ethics Act stipulate that assistant inspectors or higher officials of national police officials shall register their property. The complainant is a national police official, being promoted to an assistant inspector from a senior police officer on 2009. 6. 9. and working for a police station. Arguing the above provisions violate the right to privacy, right to equality and right to pursue happiness, the complainant filed this constitutional complaint.

Provisions at Issue

The provisions at issue are the part of 'public officials in specified fields as prescribed by Presidential Decree' of Article 3 Section 1 Item 13 of the Public Service Ethics Act (revised by Act No. 9402 on Feb. 3, 2009) (hereinafter, referred to as the "Instant Statute") and the part of 'assistant inspectors' of Article 3 Section 4 Item 6 of the Enforcement Decree of the Public Service Ethics Act (revised by Presidential Decree No. 21289 on Feb. 3, 2009) (hereinafter, referred to as the "Instant Decree"). It would be reviewed whether the instant statute and instant decree infringe on the basic rights of the complainant.

Public Service Ethics Act (revised by Act No. 9402 on Feb. 3,

2009)

Article 3 (Persons Liable for Registration)

(1)Any public official who falls under any of the following subparagraphs (hereinafter referred to as "person liable for registration") shall register property as prescribed in this Act:

13.Other public officials in specified fieldsand personnel of public service-related organizationsas prescribed bythe National Assembly Regulations, the Supreme Court Regulations, andPresidential Decree.

Enforcement Decree of the Public Service Ethics Act (revised by Presidential Decree No. 21289 on Feb. 3, 2009)

Article 3 (Persons Liable for Registration)

(4)The term "public officials in specified fields and personnel of public service-related organizations prescribed by Presidential Decree" in Article 3(1) 13 of the Act shall be as follows:

6.Superintendents, senior inspectors, inspectors andassistant inspectorsfrom among the national police officials, and autonomous superintendents, autonomous senior inspectors, autonomous inspectors and autonomous assistant inspectors from among the autonomous police officials

Summary of the Decision

In a unanimous opinion, the Constitutional Court dismissed the part of 'public officials in specified fields as prescribed by Presidential Decree' of the instant statute and declared 'assistant inspectors' part of the instant decree constitutional with the following reasons:

1.The infringement on the basic rights of the complainant would occur by prescribing the instant decree, which stipulated assistant inspector shall register property, according to the delegation of the instant statute. Because the instant statute does not infringe directly on the basic rights of the complainant, merely providing the ground of the instant decree, the instant statute lacks in the requirement of directness.

2.The instant decree intends to secure the integrity of police officials by imposing the obligation of property registration of police officials, thus fulfilling the legitimacy of purpose and appropriateness of means. Considering that property of assistant inspectors is merely registered, not disclosed, the scope of property registration is limited, lineal ascendants or descendants may refuse to notice the property, criminal sanctions prevent the disclosure of the registered property, the right to privacy would be infringed at the least degree by the instant decree. In addition, the privacy restricted by the instant decree is limited to the property and the property is limitedly disclosed, implying the disadvantages that are caused by the restriction on privacy related to property are not significant; whereas, the public interests of the instant decree contribute to the prevention of corruption of police officials and guarantee of transparency of execution of public affairs, securing the responsibility of police officials as servants of the Citizens in the end. Therefore, the restriction of the instant decree meets the balance of legal interests, not violating the right to privacy of the complainant.

3.Considering that the scope and authority of the duty of police officials are broad, and especially assistant inspectors that are core manpower of field inspections and are engaged to the duties for the people would show high possibility of corruption, such as interrupting to civil disputes or bribery, it would be reasonable to impose the registration obligation on assistant inspectors whose duties are distinct from education public officials or military personnel that are not related to the service for the public. Therefore, the instant decree does not infringe the right to equality of the complainant.