Materials Harmful to JuvenilesCase

(12-1 KCCR 767, 99Hun-Ka16, June 29, 2000)

In this case, the Constitutional Court upheld related provisions inthe Juvenile Protection Act that punished sale to juveniles of materials harmful to them and granted the Juvenile Protection Committeethe power to determine the harmfulness of materials.

A. Background of the Case

The Juvenile Protection Act bans the sale, rent, or distribution tojuveniles of materials harmful to juveniles and the offering of the materials for viewing or use by juveniles. It punishes those whoengage in the banned conduct for profit. Then, the Act grants theCommission on Youth Protection and other agencies capable of reviewing materials on their ethical value and soundness the power to determine what should be banned as materials harmful to juveniles.

Therefore, the Korean Performance Arts Promotion Council foundthe CD-ROM titled 'Starcraft' to be a material harmful to juvenilesfor highly violent content. The defendant in this case allowed juveniles to play Starcraft in his PC game room operated for profit.He was indicted for the offering of use of materials harmful to juveniles for profit, and the Courtsua sponterequested constitutionalreview of the said statutory provisions.

B. Summary of the Decision

The Constitutional Court upheld the grant of the power to determine whether a certain material is materials harmful to juveniles to the Commission on Youth Protection in the following unanimous decision:

Punitive laws and rules must be in principle legislated in theform of statutes. The making of punitive law and rules can be delegated to administrative rule-making only in exceptional situationswhere there is urgent need for such delegation or the circumstancesdo not allow detailed definitions in statutes. Even when so delegated, the statutes must define concretely the elements of the crimesso that the punished conduct can be predicted, and state clearly thetypes, limit and scope of punishment.

Any attempt to ban sale and rent to juveniles of materials harmful to juveniles will necessarily involve case-by-case review of eachmaterial on its harmfulness. It is practically impossible to make lawsor lower laws

to condemn each of the materials, and the efficacy ofthe regulation will be lost. It seems unavoidable that whether amaterial falls under materials harmful to juveniles, although it is anelement of the crime, is not defined in the statute itself but delegated to the administrative body such as the Commission on YouthProtection. The Juvenile Protection Act and its enforcement rulespermit a rough prediction of which materials will be materials harmful to juveniles. They require the determinations by the administrative bodies to be published in the Official Gazette and to be entered into the List of Materials Harmful to Juveniles. Through theseprocedures, the scope of the punished conduct becomes clearer.

Therefore, the Juvenile Protection Act provision does not exceedthe limit of delegation of punitive rule-making, and it is not vagueenough to violate the principle of statutory punishment.

Furthermore, as long as the findings of the Commission on YouthProtection are made within the scope delegated by the Juvenile Protection Act, they only reinforce the contents of the definitions under this statute. When a trial proceeds on the basis of the findings, thejudge's authorities in fact-finding or interpretation and applicationof laws are not deprived. Judges can make independent findings asto the legitimacy of the determinations of the Juvenile Protection Act,and conduct the proceeding on the basis thereof. Delegation ofdetermining whether a material falls under materials harmful to juveniles to the Commission on Youth Protection does not infringe one's right to receive a trial by a judge.