Coercion of Publication of Violation Case

(14-1 KCCR 49, 2001Hun-Ba43, January 31, 2002)

In this case, the Constitutional Court declared that the provision of the Monopoly Regulation and Fair trade Act (hereinafter referredto as "Fair Trade Act") forcing the violator of the Fair Trade Act topublish the fact that violation occurred violated the Constitution.

A. Background of the Case

The complainant is the Korean Hospital Association, an businessoperators association under the Fair Trade Act. The complainant organized two large demonstrations of doctors in opposition to anadministrative disposition issued by the Minister of Health andWelfare.The Fair Trade Commission reported to the investigative agencyandissued an administrative disposition ordering the complainant topublishthe fact that the complainant violated the Fair Trade Act in fourcentral daily newspapers when it reached the conclusion thatactivityby the complainant encouraging suspension of medical service constituted unreasonable restriction of business or activities of member business operators.

The complainant then petitioned the Court to request the constitutional review of Article 27 of the Fair Trade Act allowing theFair Trade Commission to issue an order to publish the violation of the law. The Court did not grant the request, and the complainant filed the instant constitutional complaint.

B. Summary of the Decision

The Constitutional Court unanimously concluded that theprovisionallowing the order to publish the violation of the law is unconstitutional because it infringes on the general freedom of action excessively and the right to dignity excessively and is against the principle of the presumption of innocence. Summary of the decision isas follows:

(1) The legislative purpose of the provision allowing the FairTrade Commission to issue an order to publish the violation of thelaw is legitimate since it is necessary to put an end to publicdamageand prevent the recurrence of such violation by widely cautioningthe general public or related businesses operators through such meansas disclosure of important information related to the violation of theFair Trade Act. Diverse means could be considered as suchprotective ordering the violator to "acknowledge and publish the fact that heviolated the Fair Trade Act," the Fair Trade Commission could optto take a lighter

punitive measure such as "publish the fact that anadministrative disposition ordering corrective measures was issuedagainst his action in violation of the Act."

Even if the legislators had chosen the alternative and ordered the violator to "publish the fact that an administrative dispositionordering corrective measures was issued against his action inviolationof the Act," it would still be possible to achieve the legislativeobjective while reducing the degree of infringement of basic rightsof the violator and minimizing such negative effect as chaosresulting from judgment of not-guilty by the Court. To order the perpetrator of the Fair Trade Act to "acknowledge and publish the fact that heviolated the Fair Trade Act" would be to jump to the conclusionthatthere was a violation of the law and to force publication of facts ofa suspected crime based on an administrative disposition of the Fair Trade Commission before the criminal procedure even begins. Thismay not be the most appropriate means to achieve the legislativeobjective, and it excessively infringes on general freedom of actionand right to reputation.

(2) The violator of the Fair Trade Act would be required tomake statements in the criminal procedure reports him to the investigativeagency. To force him to publish that he violated the Fair TradeActbefore initiation of the criminal procedure would put him in anawkward position as he would want to deny violation of the Act in the criminal procedure, and would be (psychologically detrimental to his trial preparation. Moreover, it would lead the Court to reach an unreasonable conclusion about the trustworthiness of the results of investigations by the Fair Trade Commission, and this may in turninfluence the forthcoming criminal procedure. In conclusion, theorderto publish the violation of the Fair Trade Act leads to apresumption of guilt before the final adjudication on the violation by the Court atan initial stage of investigation when the suspect has only been reported to the investigative agency and there has ant yet been aninstitution of prosecution. The order is an administrativedisposition based on the presumption of guilt, and therefore, is against the presumption of innocence.