So-called Brothel Building Provider Case

[18-1(B) KCCR 498, 2005Hun-Ma1167, June 29, 2006]

Held, Article 2 Paragraph 1 Subparagraph 2 Item 3(hereinafter referred to as the "the Instant Provision") of the Act on the Punishment of Arranging Sexual Traffic(hereinafter referred to as the "the Act"), which prohibits and punishes "providing buildings or land with the knowledge that it will be used for sexual traffic", on the basis that it belongs to acts of arranging sexual traffic, is not unconstitutional, thus the complainant's complaint is dismissed.

Background of the Case

The complainants either own or have the management rights to buildings located in the so-called brothel area. They filed a constitutional complaint arguing that as their buildings cannot be leased out for any purpose other than sexual traffic, regulating and punishing the leasing out as thus, excessively infringes upon their right to property.

Summary of the Decision

The Constitutional Court, in 8 : 1 decision, dismissed the complainant's complaint. The summary of the decision is as follows:

1. Majority Opinion of Eight Justices

The purpose of this Act, which is to root out sexual traffic, the acts of arranging sexual traffic, and to protect the human rights of the victims of sexual traffic, may be deemed legitimate. The legislative purpose of the instant provision which is to contribute to the purpose of this Act, may be deemed legitimate as well. Providing buildings or land with the knowledge that it will be used for sexual traffic, facilitates sexual traffic or the act of arranging sexual traffic, and reaps the profits of coercing or arranging sexual traffic. So in order to achieve the goal of eradicating sexual traffic and the acts of arranging sexual traffic, such indirect acts of arranging sexual traffic as in this provision needs to be restricted. Thus the restrictions imposed by the instant provision are the appropriate means to achieve the legislative purpose.

The so-called brothel area is in fact an unlicensed prostitution district, where most of the saloons run by the tenants have long provided sexual traffic, under the toleration of the authorities. It is realistically difficult to use such buildings for any other purposes, such as residence. But sexual traffic in these areas are so-called traditional sexual traffic and such full time sexual traffic starkly and intensively exposes all the problems sexual traffic can cause. It is necessary for the state to protect women driven to such sexual traffic, and to regulate middlemen of sexual traffic. In order to root out coercing and arranging of sexual traffic, restricting the act of providing buildings or land to middlemen with the knowledge that it will be used for sexual traffic, is an inevitable means to achieve

such legislative purpose. In addition, the public good that may be achieved by preventing the deep-seated abuse and infringement of human rights of sexual traffic in the brothel area, and ultimately closing down the brothel area itself, is deemed greater than the short term private losses suffered by the complainants.

In sum, the restriction the instant provision imposes upon the complainants in exercising their right to property does not, in violation of Article 37 Paragraph 2 of the Constitution, excessively infringe upon the basic rights of the complainants.

2. Dissenting Opinion of One Justice

Although it may be true that providing buildings or land with the knowledge that it will be used for sexual traffic, facilitates sexual traffic or the act of arranging sexual traffic, it is troublesome that the state uniformly regulate sexual traffic or the act of arranging sexual traffic, and the prosecution of such providing of buildings is much more so. It is an exhibition of the extreme ideal of realizing moral purity, and disregards the imperfect character of mankind and reality, also reckoning upon the omnipotence of law. Such restriction lacks the justification in restricting the right to property, and undermines the public trust in law. In conclusion, "providing buildings" in Article 2 Paragraph 1 Subparagraph 2 Item 3 of the Act, and Article 19 Paragraph 1 Subparagraph 1 pertaining to the above Article, is unconstitutional.