2. Capital Punishment

[22-1(A) KCCR 36, 2008Hun-Ka23, February 25, 2010]

In this case, the Constitutional Court held that the provisions of Criminal Act and related Act that stipulate death penalty or life sentence are constitutional.

Background of the Case

Movant of underlying case was sentenced to death penalty by the court of first instance for murdering four people including three women sexually abused by himself, and then appealed to Gwangju High Court. Gwangju High Court requested the constitutional review of Article 41 Item 1 of Criminal Act prescribing death penalty as a type of punishment and other relate statutory provisions (when these provisions and aforementioned Item are combined, hereinafter 'Instant Provisions') stipulating death penalty as a statutory sentence, granting the aforementioned movant's motion to request to the constitutional review on the Instant Provisions.

Provisions at Issue

The contested provisions are Criminal Act (enacted on Sep. 18. 1953 by Act No.293), Article 41 Item1, each part of 'life imprisonment' of Article 41 Item2 and Article 42, the part of 'life imprisonment' of Article 72 Section1, the part stating "shall be punished by death, or imprisonment for life" of Article 250 Section1, and Former Act on the Punishment of Sexual Crimes and Protection of Victims Thereof (revised on August 22, 1997 by Act No. 5343, before revised on June 13, 2008 by Act No. 9110), the part stating "shall be punished by death, or imprisonment for life" of Article 10 Section1. The text of these provisions are as follows;

Criminal Act (enacted on Sep. 18. 1953 by Act No.293)

Article 41(Kinds of Punishment)

1. Death penalty;

2. Imprisonment;

Article 42(Term of Penal Servitude and Imprisonment without Prison Labor)

Imprisonment or imprisonment without prison labor shall be either for life or for a limited term, and the limited term shall be from one month to fifteen years. Provided, that it may be extended twenty-five years in case of the aggravation of punishment.

Article 72(Requisites for Parole)

(1)A person under execution of imprisonment or imprisonment without prison labor who has behaved himself well and has shown sincere repentance may be provisionally released by an act of the administrative authorities when ten years of a life sentence or one-third of a limited term of punishment has been served.

Article 250(Murder, Killing Ascendant)

(1)A person who kills another shall be punished by death, or imprisonment for life or for not less than five years.

Former Act on the Punishment of Sexual Crimes and Protection of Victims Thereof (revised on August 22, 1997 by Act No. 5343, before revised on June 13, 2008 by Act No. 9110, hereinafter "SCPVA")

Article 10(Murder, by Rape)

(1)If a person who has committed the crime as prescribed in Article 5 through8, 8-2 and 12 (limited to attempted crimes listed in Article 5 through 8 and 8-2) or Articles 297 through 300 of the Criminal Act, kills a person, he shall be punished by death or imprisonment for life.

Summary of the Decision

In a 5(constitutional): 3(unconstitutional): 1(partially unconstitutional) decision, the Constitutional Court held the Instant Provisions constitutional.

1. Court Opinion of Five Justices

A.Article 110 Section 4 of the Constitution that prohibits

single-trial system even in the declaration of a military trial. This Article 110 Section 4 that is based upon a premise that a death sentence as a criminal punishment can be enacted by the legislature and imposed by the court. In this regard, it can be acknowledged that the Constitution seems to indirectly allow capital punishment in its interpretation.

B.The Constitution does not textually recognize absolute basic rights and Article 37 Section 2 of the Constitution prescribes that all of the people's freedom and rights may be restricted only when necessary for national security, the maintenance of law and order or the public welfare. Therefore, even a person's life in an ideal sense is deemed to have an absolute value, legal assessment on a person's life can be permissible and the right to life may be subject to the general statutory reservation in accordance with Article 37 Section 2 of the Constitution.

(1)Capital punishment is aimed to prevent further crimes by making a psychological warning to the people, to realize a justice through a fair retribution against the perpetrator committing heinous crime, and to protect society through permanent blocking recidivism of a perpetrator. These legislative purposes are legitimate and death penalty, the heaviest punishment, is an appropriate means to achieve such purposes.

(2)Capital punishment is not in violation of the principle of least restrictive means. Capital punishment deprives the offender of his or her legal interest more than any other penalty such as life imprisonment or life sentence without parole. Therefore, death penalty can be regarded as a punishment having the strongest efficacy of deterrence on crimes, considering people's instinct for survival and fear of death. In the case of the most atrocious crime, just imposing life sentence is not proportionate to the responsibility of such offender. Likely, imposing such life sentence may not accord with the sense of justice of the victim's family or the public. In this regard, it cannot be ascertained that there, rather than death sentence, exists any other penalty which has the same efficacy in its accomplishing such

legislative purpose as capital punishment has.

On the other hand, courts' wrong decision on death sentence should not be considered to be a problem inherent in capital punishment itself, but only one of the possible problems which can come out of the process of adjudication and be alleviated through the judicial tier system or appealing process. Accordingly, the possibility of courts' misjudgment in capital punishment cases should not be the basis on the contention that imposing of death penalty itself is totally impermissible under the Constitution.

(3)Capital punishment, also, is not in violation of the principle of balancing between legal interests concerned. The important public interests in protecting innocent ordinary people's lives through preventing crimes, accomplishing social justice, and maintaining social security are to be valued not less than the perpetrator's individual interest in preserving life. The sentence of death in its practice has been limitedly imposed only for the most serious crimes such as vicious killings of many people so that such sentence of death could not be excessive compared to the cruelty of crime.

C.Article 10 of the Constitution, a provision on human dignity and value, is not to be automatically violated only because a criminal penalty is to take a penetrator's life, taking into account that capital punishment is implicitly recognized by the Constitution and is not considered to be beyond the constitutional restraint set out in Article 37 Section 2 of the Constitution in restricting right to life. Further, death penalty is sentenced to the offender who ignored warning posed by a criminal penalty and committed a cruel and heinous crime, in a way that reflects the gravity of illegality of the crime and the offender's proper responsibility, and the result of such offender's committing of heinous crime according to his or her own decision. It can not be acknowledged that a sentence of death infringes offender's human dignity and value by treating the offender as only an instrument for social security of public interest. Meanwhile, it can not be found that capital punishment is unconstitutional by infringing the human dignity and worth of a judge or a prison officer just because judges or prison officers can feel guilty when they impose or execute

such penalty respectively.

D.Enacting of 'absolute life sentence', life sentence without parole, may raise another debate on its unconstitutionality and that the purposes of 'absolute life sentence' such as permanent isolation of the offender from society and those of 'nonabsolute life sentence', life sentence with mitigating or parole, can be attained from operating of parole system under the current criminal acts. In this regard, it is difficult to conclude that the current criminal acts not having 'absolute life sentence' fails to be legitimate and proportionate to be valid and is in violation of the principle of equality prescribed by Article 11 of the Constitution or the principle of proportionate responsibility which requires penalties to be correspondent to the nature of crime.

E.Murder crime, defined by Article 250 Section 1 of the Criminal Act, is a typical criminal act of denying human life and can include heinous and atrocious killing of person as an offence against humanity in terms of its nature or the severity of its consequence. Therefore, statutes, setting out death penalty or life imprisonment as well as imprisonment for more than 5 years for such crime should be regarded a means to protect a person's life or people's lives, are not violating the principle of proportionality or the principle of equality.

F.SCPVA, Article 10 Section 1 prescribes the elements of consolidated crime of murder and sexual assault and sets out the death penalty or life sentence for such consolidated crime. Article 10 Section 1 mentioned above can be found a necessary means to protect a person's life or the people's lives and their freedom of self determination in matters of sexuality. Such Article 10 in its removing imprisonment for more than 5 years from the sentence options for murder crime can not be found violating the principle of proportionality or the principle of equality.

2. Concurring Opinions of Three Justices

A. Concurring Opinion of Justice Lee, Kang-kook

Although, death penalty is a type of criminal sanctions recognized by the Constitution itself, its scope of application must be considerably limited or reduced since it conflicts with the right to life which is highly respected in our society. Therefore, it is appropriate to interpret that a sentence of death should be imposed in inevitable circumstances considering justice and equity and follow the principle of proportionality and the principle of least restrictive means. Unlike this interpretation, denying capital punishment by regarding the death penalty set forth in the Constitution as unconstitutional through insisting on the right to life as the highest basic right can result in revision or changing the Constitution substantially beyond the scope of interpretation of the Constitution.

B. Concurring Opinion of Justice Min, Hyeong-ki

I believe that the sentence of death, under current constitutional order, seems to be necessary and has the reason to exist. In using capital punishment, however, it is necessary to minimize the scope and the types of crimes to be applied to remove potential misuse or abuse of death penalty and its bad consequences and overcome criticism that sentence of death is cruel and irrational or excessive punishment. Crimes that can result to capital punishment should be confined to particular crimes such as intentional taking of life, crime with highly probable cause of depriving any person of life, cruel crime causing fatal killing, and crime directly involved in the outcome of war or national security.

C. Concurring Opinion of Justice Song, Doo-hwan

Since problems which have been a great concern with the issue of capital punishment are basically not about the existence of capital punishment itself, but the abuse or misuse of sentence of death. Therefore, it will be necessary to limit crimes which can be punishable by the death sentence into only cruel and heinous crimes against humanity, and to remove death penalty as statutory sentence from the crimes only involved in social or national legal interests, and to administer every judicial procedure strictly and considerately in

accordance with due process, and to prevent 'cruel or suspicious punishments' or punishments ignoring or invading human dignity, and to devise and implement all processes in the course of prosecutorial investigation, trial and execution of criminal penalty carefully on the basis of thorough reviewing the provisions of statutes describing criminal punishment as a whole.

2. Dissenting Opinions of Three Justices

A. Unconstitutionality Dissenting Opinion of Justice Kim, Hee-ok

(1)Considering its background of introduction and language itself, Article 110 Section 4 of the Constitution was drafted to suppress the sentence of death set forth by statutes to respect the minimum of human rights. Therefore, aforementioned Section should not be interpreted that it can be a ground for constitutional recognition of capital punishment even in indirect way.

(2)I can not find capital punishment constitutional in that our Constitution is drafted to reiterate human dignity and worth and to protect the right to life so that death penalty should not recognize as the most appropriate means to achieve the legislative goal. Likewise, capital punishment violates the principle of least restrictive means because there exists life sentence without parole which can replace the efficacy of capital punishment. In regard to the principle of balance between legal interests concerned, capital punishment is in violation of the principle of balance of interest because other's right to life and other important legal interests, at the time of capital punishment execution, already come to an end to be taken without any necessity or emergency for depriving the offender of life and the penetrator's individual right to life weighs more than public interest which can be accomplished through capital punishment. Capital punishment is based on the premise of taking the life of a person, who was arrested after passage of considerable time from the completion of serious crime and has been imprisoned in jail, according to particularly regulated process. For this reason, I can not find capital punishment to be one of the exceptional instances required for legal evaluation on life, so I

conclude that capital punishment infringes the essential aspect of the right to life or even the bodily freedom.

(3)Capital punishment contradicts human dignity and worth prescribed in Article 10 of the Constitution and, by coercing judges and jail officers, who have to be involved in running death penalty system due to their occupations, to participate in the planned process of depriving any person of life, degrades such judges and jail officers to be just instruments for government interest regardless of their own conscience as humans. In this regard, capital punishment infringes their rights to human dignity and value.

B. Unconstitutionality Opinion of Justice Kim, Jong-dae

(1)The latter part of Article 37 Section 2 of the Constitution is a provision for restriction on fundamental rights and composed of a layered structure with essential and nonessential parts. However, it can not be applicable to the right to life because the right to life in its nature does not have those two separate parts. Thus, in restricting the right to life, the former part of Article 37 Section 2 of the Constitution should be applied and in reviewing whether the restriction can be justified the principle of proportionality should be observed.

(2)At the time of court's imposing a death penalty, the circumstances where the interest of national security or victim's life is in contrast to offender's life do not exist any more. As far as government keeps the perpetrator incarcerated in jail, the aim of protecting an individual and the society can be attained in the same way as the execution of death row inmates could achieve such aim. The sentence of death deprives a person of life against the human dignity for implementing one of criminal policies, i.e., the crime deterrence, and we have not been convinced that capital punishment can accomplish the goal of crime deterrence in general. Thus, capital punishment should be abolished in condition of introducing the most restrictive imprisonment that diminishes any possibility of parole or pardon because life sentence under the current criminal acts would not be able to replace the efficacy of capital punishment.

C.Unconstitutionality Opinion of Justice Mok, Young-joon (also unconstitutionality opinion on current life sentence system)

(1) Capital punishment

The right to life is to be a kind of absolute, fundamental right which can not be constitutionally restricted because the right to life, conceptually or actually, could not be divided into its essential and nonessential part. Since a deprivation of life includes a deprivation of a person's body, capital punishment infringes the essential aspects of the right to life and bodily freedom. Furthermore, capital punishment is in violation of Article 37 Section2 of the Constitution articulating the rule of prohibition of excessive restriction of basic rights and in violation of Article 10 of the Constitution by infringing the human dignity and worth of people who are to participate in imposing or executing such death penalty and death-row convict.

(2) Life Sentence System

Although capital punishment should be abolished due to its unconstitutionality, there, to replace such death penalty, is a need to devise a practical penalty of making the offender permanently isolated from society such as absolute life sentence without parole, to revise current provisions setting out the standard of the concomitant crimes consolidation should be revised, and to extend maximum years of imprisonment. It should be found unconstitutional Article 41 Section 1 of the Criminal Code, which enumerates death penalty as a type of punishment, at the same time, incompatible with the Constitution current statutory provisions prescribing life imprisonment, aggravating factors for concurrent or concomitant crimes, maximum years of imprisonment, and parole.

4. Partial Unconstitutionality Opinion by Justice Cho, Dae-hyen

Since capital punishment does not satisfy the requirements of Article 37 Section 2 of the Constitution, which prescribes the elements for depriving any person of life, capital punishment should be considered to violate essential aspect of right to life. However, we have no

choice but to accept that the Constitution itself recognize an exceptional instance of permitting the sentence of death of a military trial under the emergency military law because Proviso of Article 110 Section 4 of the Constitution allows for the military court to impose the sentence of death in a particular situation of emergency martial law. Therefore, while capital punishment would not be unconstitutional if it applies to the case falling into the situation described by Proviso of Article 110 Section 4 of the Constitution, otherwise a sentence of death is in violation of Article 37 Section2 of the Constitution by infringing the essential aspect of the right to life without any justifiable cause.