Family Ritual Standards Actcase

(10-2 KCCR 586, 98Hun-Ma168, October 15, 1998)

A. Background of the case

In this case, the Constitutional Court invalidated the limitation onservice of meals under the Family Ritual Standards Act on the groundthat it violated the requirement of clarity1)under the principle ofnulla poena sine lege, infringing on people's general freedom of action.

The Family Ritual standards Act2)was passed by an emergencycabinet when the legislature was disbanded. The Act had suppressedexcessive wastes and vanities in family rituals, but had also beencriticized for subjecting to criminal punishment an area otherwise re-served for ethics and custom and also for being ineffective.

Article 4 of the Act, titled 'prohibition of wasteful etiquette andvain rituals', bans in Item 1 various family ritual activities exceptthose specified by presidential decrees. Then, Sub-item 7 of Item 1bans serving of alcoholic beverage and meals during festivities andfunerals. The regulation of the Act permitted only 'modest servingsof alcoholic beverage and meals at home or ordinary restaurants(hotels excluded).'

The complainant was a groom about to wed on October 17, 1998,and filed a constitutional complaint on May 29, 1998, on the groundthat the ban on serving of meals to the guests at wedding ceremoniesunder the above provision violated the right to pursuit of happiness.

B.Summary of the decision

The Court narrowed the scope of adjudication as applied onlyto festivities but also broadened it to include Article 15 (1) (ⅰ).

The Court unanimously ruled that the provision restricted thecomplainant's general freedom of action and violated the requirementof clarity under the principle ofnulla poena sine legeas follows:

The practice of serving alcoholic beverage and meals to one'sguests at his or her wedding ceremony has long been common partof the social life of the mankind and belongs to the domain of anindividual's general freedom of action and it should be protected by the Article 10 right to pursuit of happiness.

The provision, while generally banning serving of alcoholic bev-erage and meals, enables presidential decrees to provide for exceptions.Then, the statute must be sufficiently clear so that ordinary peoplecan easily predict what the enjoined conduct is.

The elements of crime under this statute are determined inverse-ly by the presidential decrees that specify the permitted conduct, the scope of which must be 'reasonable in light of the true meaning of family etiquette and rituals' according to the statute. Therefore, therule of clarity is satisfied by whether the statutory phrase allowssufficient inference on the overall extent of the presidential decree.The concept of 'the true meaning of family etiquette and rituals'does not allow people to predict how one can treat the guests at the wedding ceremonies and the sixtieth birthday parties3)in accordanceto that 'true meaning.' In our tradition, a wedding is a

very gen-erous festivity. It is such an important event for one that he orshe is expected to make it extravagant even if it requires exceedinghis or her budget. The records show diverse understandings whichpeople have of the provision. 'The true meaning of family etiquette and rituals' is not easily discernible to people.

Also, the overall meaning of 'reasonable scope', when applied tofamily etiquette and rituals, is not easy to predict. The subject mat-ter also belongs to the realm of custom and localities and can notbe easily reconcilable with the Western concept of 'reasonableness.'Alcoholic beverage and food items vary widely in quantity, quality,and price and are therefore not conducive to setting of any scope.The regulatory history around past presidential decrees also does notmake the prediction any easier.

In the end, the concept of 'reasonable scope in light of the truemeaning of family etiquette and rituals' is not sufficiently predictablein overall content to be used as a guide for one's action. It is dan-gerously conducive to arbitrary action of those administering the law.The provision violates the requirement of clarity under the principle ofnulla poena sine lege, and violates people's general freedom of action.

C.Aftermath of the case

The major media noted the statute to be unrealistic and thereforefossilized and found total revision necessary. They interpreted thedecision as a resolution that service of meals during festivities shouldbe determined by people on their own, rather than regulated by law.Although the decision, striking down the provision, brought about the effect of meals being served at high class hotels, the side effect also mentioned by the media, they valued the decision as a shift from the 'law-as-panacea' approach whereby even daily lives are regulated bylaw to people's autonomy.

The decision was aimed at review of one provision under theclarity requirement but resulted in repeal of the entire statute. Thesucceeding Act on Family Rite Establishment and Related Assistance4)does not provide for any criminal punishment and instead provides forthe establishment of 'Family Etiquette and Rituals Review Committee',the role of which is to promote sound family etiquette and rituals by recommending appropriate guidelines. Accordingly, the Sound FamilyEtiquette and Rituals Guidelines (Presidential Decree No. 16544) pro-vide for the basic procedures for adulthood ceremonies, weddings, fu-nerals, and commemoratives.