In a case where a prosecutor indicted a defendant as a violation of the former Act on the Punishment of Sexual Crimes and Protection of Victims Thereof (a minor, rape, etc. under thirteen years of age), and requests a medical treatment and custody order along with a sexual impulse medication order, the case holding that the prosecutor requested ex officio a trial on the constitutionality of a law on the ground that Article 4(1) and Article 8(1) of the Act on the Pharmacologic Treatment of Sexual Offenders, which provides for the compulsory imposition of sexual impulse medication without consent of the party concerned, violates the principle of excessive

In a case where a prosecutor indicted a criminal defendant who committed each indecent act against a child victim as a violation of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims (amended by Act on the Protection, etc. of Sexual Crimes (amended by Act No. 10258, Apr. 15, 2010) (a minor rape, etc.) (hereinafter “medical treatment order”) and requests a medical treatment order along with a medical treatment and custody for the reason that the criminal defendant is likely to repeat a sexual crime as a sexually ill patient, the case holding that Article 4(1) and Article 8(1) of the Act on Pharmacologic Treatment of Sexual Offenders (amended by Act No. 1156, Dec. 18, 2012) are justifiable to prevent recidivism of a sexual crime and promote rehabilitation of a sexual offender, but it is doubtful whether the sexual impulse treatment system has the effect of preventing sexual impulse treatment, and thus, the above provision should be deemed as having been executed in a situation where the right to self-determination of sexual impulse treatment is unreasonable or unreasonable for reasons to minimize any harm.

Articles 10, 12(1), and 37(2) of the Constitution of the Republic of Korea; Articles 4(1) and 8(1) of the Act on the Pharmacologic Treatment of Sexual Offenders (Amended by Act No. 11556, Dec. 18, 2012); Article 298 of the Criminal Act; Article 298 of the former Act; Article 8-2(3) of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims thereof (Amended by Act No. 10258, Apr. 15, 2010) (see current Article 7(3) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes)

Defendant

Attorney Park Jong-soo

As to the foregoing case, a judgment on the unconstitutionality of Articles 4(1) and 8(1) of the Act on Pharmacologic Treatment of Sexual Offenders (Amended by Act No. 11556, Dec. 18, 2012) is presented.

1. Case overview and subject matter of the proposal;

A. Case summary

On September 18, 2012, the prosecutor tried to report the victim non-indicted 1 (age 5) who was playing in the ○○ Hospital parking lot located in Daejeon-gu ( Address 1 omitted) on June 7, 2009 and to commit an indecent act against the defendant and the respondent for a medical treatment and custody order (hereinafter referred to as "defendant") on September 18, 2012. The prosecutor attempted to take the victim's hand and prevent the victim from resisting the fourth floor of the above building from committing an indecent act against the victim's sexual intercourse with the victim's sexual organ, and committed an indecent act on the victim's sexual intercourse with the victim's sexual organ on July 15, 200, and returned home at the △△-dong facility located in the Daejeon-gu ( Address 2 omitted) Dongdong-gu (hereinafter referred to as "the defendant"), and ordered the victim to have his sexual intercourse with the victim's sexual impulse treatment and custody at the same place as the victim's sexual impulse treatment and treatment method."

(b) legal provisions and relevant regulations subject to proposal;

Article 4(1) and Article 8(1) of the Act on Pharmacologic Treatment of Sex Offenders (amended by Act No. 11556, Dec. 18, 2012; hereinafter “Pharmacologic Treatment Act”), which is the subject of a request for judicial review on the constitutionality of the instant case (hereinafter “instant provision”), is Article 4(1) and Article 8(1) of the same Act. The relevant provisions are as follows.

(1) The purpose of this Act is to prevent recidivism of sexual crimes and promote rehabilitation into society by performing sexual impulse medication treatment on a sexually ill person who has committed a sexual crime against a person under the age of 16 and who is deemed likely to recommit a sexual crime. The definitions of the terms used in this Act are as follows: 1. The term "sexual outpatient patient" means a person who falls under Article 2 (1) 3 of the Medical Treatment and Custody Act and a person who is confirmed to be unable to control one's own act due to sexual disorder by an appraisal of a mental health professional; 3. The term "pharmacologic treatment of sexual impulse" (hereinafter referred to as "pharmacologic treatment") means a treatment order which is measures to restrain abnormal sexual impulse or desire, and whose sexual function at the same time is aggravated or normalized for a certain period. (1) A prosecutor may request a court to order treatment of a sexual crime under the age of 16 to determine again the period of a sexual crime and to order treatment of a person under the age of 16 years or more within the scope of one's judgment:

2. Presumption of the judgment;

The provision on the subject of the proposal of this case applies to the claim for medical treatment order due to the crime of violation of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims (Rape, etc. under thirteen years of age) which falls under the pertinent case in the request for adjudication on the unconstitutionality of the Act. Thus, the provision on the subject of the proposal of this case constitutes a case where the court makes another judgment depending on whether the provision on the subject of the

3. Whether Article 4 (1) and Article 8 (1) of the Pharmacologic Treatment Act are in violation of the Constitution.

(a) The opening of sexual impulse medication systems;

1) Legislative background, legislative history, and foreign legislation cases

A) Legislative background

The public opinion was raised that sexual crimes, particularly sexual crimes against children have occurred as a series of sexual crimes, and sexual crimes against children have been committed, and that strong countermeasures are needed to cope with sexual crimes due to the transfer of shock and damage situations, and the National Assembly has prepared countermeasures against sexual crimes through the enactment and amendment of the relevant Acts. The main contents of the measures were to raise the statutory punishment by amending the Criminal Act, such as enhancing the maximum punishment by enhancing the maximum punishment, and to expand the system of disclosure of personal information already implemented, and to introduce the electronic monitoring system through the location tracking device called the so-called "electronic shock", which is called the so-called "chemical disorder", and to introduce the "sexual impulse medication treatment system."

B) Legislative history

(1) On September 8, 2008, 31 National Assembly members, etc. proposed "the legislative bill on the prevention and treatment of habitual sexual assault offenders". The main contents are to prevent recidivism and promote rehabilitation of children under 13 years of age by preparing a chemical therapy and psychological therapy program for those who are identified as patients with sexual impulses who have difficulty in suppressing abnormal sexual impulses or desire among habitually sex offenders who are under 13 years of age (Article 1 of the Bill). The purpose was to habitually sexual assault offenders against children under 13 years of age by requiring a prosecutor's consent, and by the court's decision, for a certain period of time according to the method of medical treatment and psychological treatment known in the form of a medical treatment and custody (Articles 2 through 5 and 9 of the Bill).

(2) Since then, the above bill was presented at the 19th plenary session of the National Assembly at the 278th plenary session, and was referred to the subcommittee for the examination of the bill. After the discussion of the first year, the bill amended the current bill under the law by the chairman at the 6th plenary session of the National Assembly at the 291th plenary session. The above amendment passed the amendment and became the current sexual impulse Pharmacologic Act. In the above amendment, the term “chemical dues” was modified to “sexual impulse Pharmacologic treatment” on the ground that the term “chemical dues” may cause sense of shame and rejection, etc., was deleted from the definition of the person subject to pharmacologic treatment, and the term was deleted from the definition of the person subject to pharmacologic treatment to children under 16 years of age, and expanded the scope of the application of the medical treatment order by eliminating the requirements for consent of the person subject to pharmacologic treatment. The sexual impulse Pharmacologic treatment Act was promulgated on July 23, 2010 and came into force from July 23, 2011.

(3) Subsequent to the end, sexual assault violent crime against a female, on November 22, 2012, the Special Chairperson of the Countermeasures against Sexual Violence against Children and Women did not impose any limit on the victim's age), on the 11-person amendment proposal (the extension of the victim's age from less than 16 to less than 19 years old), such as Gidong Council members (the extension of the victim's age from less than 16 to less than 19 years old), and then proposed an alternative to revise "a person under the age of 16 years" as "a person under the age of 16 years" under Articles 1, 4(1), and 22(1) of the Sexual Pharmacologic Treatment Act so that a sexual offender can issue a medical treatment order, regardless of whether he/she is a person under the age of 16, and the above alternative was implemented on November 2, 2012 through the plenary session of the National Assembly, and was scheduled to be promulgated on December 31, 2012.

(4) Meanwhile, on January 14, 2013, 12 National Assembly members, etc.: “A member of the National Assembly, etc. of the 12th National Assembly is deemed to temporarily impossibility of part of the physical function and have no treatment effect. It is known that there is no voluntary treatment will of the parties. Therefore, the consent based on free will accompanying accurate understanding of the content, effect, side effects, etc. of the pharmacologic, and the judgment in the case of the request for the pharmacologic order is rendered simultaneously with the judgment of the defendant case, while the judgment in the case of the request for the pharmacologic order is sentenced to the judgment of the defendant case, the execution of the pharmacologic order is made at the time when the period of punishment expires. As there is a gap between the time and the time of execution of the pharmacologic order in the case of a long-term sentenced person, it is necessary to make the judgment on whether and to what extent the sex symptoms had been shown at the time of the issuance of the pharmacologic order in the prolonged execution of punishment,” on the ground that “The consent of the parties or legal representative was added to the above amendment proposal.

2) Contents of the pharmacologic system

A) Summary of the Pharmacologic Treatment Act

The current system of sexual impulse medication pursuant to the Pharmacologic Treatment Act is a system that aims to prevent recidivism of sexual impulse medication and facilitate rehabilitation into society for a person who is acknowledged to have a risk of repeating a sexual crime as a sexual per se who has committed a sexual crime against a person under the age of 16 (Article 1). The term “pharmacologic treatment” refers to a treatment that minimizes or normalizes sexual function of arrival through medication, psychological treatment, etc. for a certain period (Article 2 subparag. 3). The medical treatment order pursuant to the Pharmacologic Treatment Act is ① a medical treatment order (Articles 4 through 12), ② a punishment heavier than imprisonment has become final for a sexual crime against a person under the age of 16, but has not been sentenced to a medical treatment order (Articles 22 through 24, and Article 29 through 29 of the Medical Treatment and Custody Act) by the court’s decision on the sentenced person under Article 8(1) of the Medical Treatment and Custody Act.

B) The procedure and contents of “medical treatment order by a court ruling against the defendant”

A person subject to a medical treatment order refers to a sexual intercourse patient who has committed a sexual crime against a person under 16 years of age and is deemed likely to recommit a sexual crime. Here, “sexual outpatient patient” refers to a person who falls under Article 2 (1) 3 of the Medical Treatment and Custody Act and a person who is confirmed to be unable to control his/her own act due to sexual disorder by means of an appraisal by a mental health specialist (Articles 1 and 2 subparagraph 1 of Article 1). A prosecutor may request a medical treatment order to the court until the closing of argument in the appellate trial of a sexual crime case (defendant case) against which the above person is prosecuted or the medical treatment and custody is claimed independently (Article 4 (1) and (4)).

The jurisdiction of a case of request for a medical treatment order shall be governed by the jurisdiction of a prosecuted case which is examined simultaneously with the case of request for a medical treatment order (Article 6 (1)), and the judgment on the case of request for a medical treatment order shall be sentenced simultaneously with the judgment of the accused case (Article 8 (4)), and when the court deems that the request for a medical treatment order is well-grounded, it shall issue a medical treatment order by judgment by fixing a treatment period not exceeding 15 years (Article 8 (1)). The court shall dismiss the request for a medical treatment order by judgment when the request for a medical treatment order is groundless or when the court declares a judgment of not guilty (excluding cases where medical treatment and custody is pronounced on the grounds of

A medical treatment order shall be executed within two months before the execution of punishment is terminated, exempted or provisionally terminated, or entrusted with medical treatment under the direction of a public prosecutor (Article 14(3)). A recipient of a medical treatment order shall not have the effect of medical treatment by means of medication, etc. during the period of treatment (Article 15(1)), and shall be punished by imprisonment with prison labor for not more than seven years when such violation is committed, or by a fine not exceeding 20 million won (Article 35(1)). The head of a probation office or the recipient of a medical treatment order and his/her legal representative may file an application for provisional rescission of the medical treatment order with the Probation Examination Committee having the jurisdiction over the relevant probation office. The application shall be filed six months after the date the execution of the medical treatment order begins, and where such application is rejected, he/she may again file an application after the lapse of the period from the date of dismissal (Article 17(1) and (2)). The remaining period of probation order of the recipient of a medical treatment order shall be considered when the person loses his/her character and the period of treatment order.

C)Operation of pharmacologic treatment systems according to medical treatment orders;

A medical treatment order is executed by means of the diagnosis and prescription of a doctor pursuant to the Medical Service Act, the implementation of psychological treatment programs, such as mental health specialists under the Mental Health Act, etc. by mental health specialists, etc. (Article 14(1)). When a probation officer executes a medical treatment order by medication, he/she shall perform a sexmon test along with medication (Article 7(3) of the Enforcement Decree of the Act on the Pharmacologic Treatment of Sex Offenders (hereinafter “Enforcement Decree”). A psychological treatment program shall include matters necessary for the prevention of recidivism of sexual crimes, such as “a person who has distorted and distorted sexual signs, the improvement of treatment motive, the enhancement of ability of victims to adapt to society, the enhancement of ability to adapt to society, and the prevention of recurrence of viral personality and behavior”, and shall include matters necessary for the prevention of recidivism of sexual crimes, and shall be implemented at least once a month during the period of pharmacologic treatment (Article 5(1) and (2) of the Enforcement Decree).

The drugs to be administered to a person under medical treatment are determined and publicly notified by the Minister of Justice among “drugs that suppress and reduce the generation of sexual hemons” and “drugs that obstruct the combination of receptors (Article 8(1) of the Enforcement Decree). The Minister of Justice designated and publicly notified the drugs to be administered to a person under medical treatment as follows on July 29, 201 by the Ministry of Justice No. 201-343 of the Ministry of Justice’s notification. Of this, the drugs that are actively considered to be administered by the Ministry of Justice are known to be a kind of dysloid in the form of injection, a kind of dysloid (name of products), a kind of hysloid (name of products):

Drugs (Article 8 (1) 1 of the Enforcement Decree) which restrain and reduce the generation of cryptics contained in the main text of this Article (Article 8 (1) 1 of the Enforcement Decree) Medisophaprophatha Lythathatha (MPA, Medroxythastrethathathathate) hythathathathathatha, Leuprophathathathathathatha, which are part of a hythathathacquecquerel, which interfered with the combination of cryprrrinathathathn (Article 8 (1) 2 of the Enforcement Decree) hythathathathathatha (CP)

(iii) the legal nature of the medical treatment order;

A) Penalties and security measures

According to the previous general theory on criminal sanctions, a punishment refers to a punishment imposed on the premise of the responsibility for past illegal acts committed by an offender in essence, while a security measure refers to a disposition, such as deprivation of or restriction on freedom imposed on behalf of a punishment or by supplementing a punishment, in order to prevent a crime through the improvement of a criminal offender’s future risk and to protect society by preventing future danger, which differs from the grounds and purposes of the punishment. In historically, a security measure is a criminal sanction that differs from a punishment, because it is a punishment that is created according to the criminal policy needs for protecting society from the danger of such an offender. In other words, a punishment and a security measure fall under a criminal sanction, such as multiple criminal sanctions, but a punishment is a punishment mainly aimed at responding to past illegal acts within the limit of liability, and a security measure is a sanction to prevent future recidivism on the premise of the risk of recidivism.

(b)the purpose and requirements, etc. of the medical treatment order system

The purpose of a medical treatment order is to prevent recidivism of sexual crimes and promote their rehabilitation into society (Article 1).

A public prosecutor may request a sexual intercourse patient who has committed a sexual crime against a minor under 16 years of age and is deemed likely to recommit a sexual crime (Article 4(1)). A public prosecutor may request the head of a probation office to investigate necessary matters concerning the recipient of a medical treatment order, such as risk of recidivism, if necessary when he/she requests a medical treatment order (Article 5(1)). A public prosecutor shall request the head of a probation office to investigate necessary matters concerning the recipient of the medical treatment order, such as risk of recidivism (Article 4(2)). As such, the Pharmacologic Treatment Act provides that “risk of recidivism” as an important requirement for the medical treatment order, and refers to the scientific determination of facts by experts.

In addition, Article 8(6) provides that the sentence of a medical treatment order shall not be considered favorably in the sentencing of the accused case (Article 8(6) provides that since the medical treatment order differs from punishment and its purpose or examination object, etc., punishment shall not be mitigated without permission by treating it as a substitute means of imprisonment (see Supreme Court Decision 2009Do1947, 2009Do5, May 14, 2009).

As such, since the medical treatment order is distinguishable from the punishment in light of the contents of the relevant regulations, such as the purpose and requirements of the system, it should be viewed as a security measure that differs from the punishment.

(b) Whether the order for pharmacologic treatment of sexual impulses is against the principle of excessive prohibition.

(i)the principle of prohibition of excess with the medical treatment order;

The medical treatment order is a kind of anti-human security measure as a measure to suppress abnormal sexual impulses or desire, which is a treatment that weakenings or normalizes sexual function for a certain period of time by medication, psychological treatment, etc. to sexual persuasion patients.

Even if the security measure is useful and necessary to overcome or supplement the limit of punishment, the security measure, which is a criminal sanction that restricts the fundamental rights of the people, cannot be imposed arbitrarily without any principle, and it should be imposed within the limit of the principle corresponding to the ideology of the rule of law in order to secure its legitimacy. In the case of the security measure, the principle of excessive prohibition is emphasized as the guiding principle that justify and limits the security measure. While the punishment is restricted by the principle of responsibility, it is the principle of excessive prohibition that plays the same role as the principle of responsibility for punishment in the security measure. Even if the treatment order pursuant to the provision subject to the proposal of this case is recognized as the public interest purpose of preventing recidivism of sexual crimes and protecting the people from sexual crimes, it is problematic whether the degree of violation of fundamental rights, such as the freedom of body of the victim is excessive or not.

2) Whether the principle of excessive prohibition is violated

A) Limited fundamental rights

The execution of a medical treatment order pursuant to Article 12 (1) of the Constitution limits the freedom of not being damaged by the body guaranteed by the main sentence of Article 12 (1) of the Constitution, i.e., the completeness of the body from the outside of the body, inasmuch as the execution of a medical treatment order may reduce the reproductive ability of the recipient by injecting the body into the body of the person in the form of light, eggs or injection, and cause various side effects.

In addition, the provision on the subject of request of this case limits the right to self-determination guaranteed by Article 10 of the Constitution in that it is possible to enforce medication without the consent of the recipient, that is, the right to freely determine and act in accordance with the decision on important matters concerning his/her life. In other words, treatment by the medical treatment order may interfere with the sexual function through the remon change and may be accompanied by side effects, so the recipient may be able to review the necessity of treatment or the risk of treatment and choose whether to receive the treatment. The medical treatment order that orders compulsory treatment limits the right to self-determination as above.

In addition, the personality rights guaranteed by Article 10 of the Constitution are restricted in that the process of the execution of the medical treatment order itself could cause insult and shame.

B) Justifiable of legislative purpose

However, simply strengthening punishment as a measure against sexual crimes is difficult to be regarded as effective measures in that sexual crimes are likely to have a substantial effect on the suppression of punishment due to a large number of recidivisms or military register, and the excessive strengthening of punishment is not desirable from a general criminal policy perspective. Furthermore, even though a large number of sexual offenders have psychological and mental problems that make it difficult to restrain the impulses of crimes, the existing correction programs alone cannot become an effective means to prevent the recidivism of sexual crimes, and thus, separate sanctions are needed to cope with them other than punishment.

On the other hand, the need to strongly protect people from sexual crimes has become more serious than any time due to the frequent occurrence of sexual crimes that are extremely poor in the nature of the crime and that of serious damage. In such a situation, the instant provision on the proposal of this case aims to prevent additional crimes by taking pharmacologic treatment and psychological treatment in a case where it is acknowledged that a sexual harass who committed the sexual crime is in danger of recidivism, and therefore, it is justifiable to establish the legislative purpose of preventing recidivism of sexual crimes and promoting the rehabilitation of sexual offenders.

C) Appropriateness of the means

The introduction of the medical treatment order system is expected to have a significant effect in lowering the recidivism rate of sexual assault offenders whose sexual intercourse is sexually proved. Since thememe test is an important factor for sexual humiliation, sexual aggression, and sexual behavior, it is to prevent recidivism by inducing sexual humiliation, sexual humiliation, sexual behavior, sexual behavior by reducing brain exposure to thememe test, and inducing sexually incompetence and preventing recidivism. In particular, in the case of the victim who is difficult to expect complementary effects of psychological treatment such as cognitive behavioral therapy (see, e.g., evidence record 311) due to intellectual disorder as the defendant in this case, it is legitimate to obtain the medical treatment order that should further prove the effect of medical treatment.

However, there is no outcome of the scientific verification in Korea on the treatment effect that the therapy can be prevented from aggressive sexual behavior by the control and control of sexual therapy by drugs.

If it is proved that the effect of the drug treatment in a foreign country, which implements a similar system, has been proved, it can be seen that the effect of the medical treatment is recognized in the Republic of Korea. In this regard, the Ministry of Justice, as a result of analysis of recidivism rate of sexual offenders released for five years from 2000 to 2004, shows that 10 out of 55 sex offenders who failed to comply with the medical treatment were reoffending rate of 18.2% and do not repeat one out of 79 sex offenders who were released against the rate of recidivism rate of 18.2%, so that the recidivism rate of 0% is recognized as a basis for recognizing the effect of the treatment. However, as the above reference is reserved, it can be deemed that the voluntary response to the drug treatment is a solid expression of the intent not to prevent recidivism, and supporting the effect of the compulsory drug treatment in Korea on the basis of the low recidivism rate of the group subject to the medical treatment under the above consent, is inappropriate to exclude the risk of attack by attack and other risk.

In addition, sexual impulse medication is aimed at weakening sexual function of a sex offender by chemical method, and there is still the possibility of recidivism in that the sexual function of the recipient can be recovered in the case of suspension of pharmacologic treatment. In other words, the effect is limited compared to the cost of injection.

As such, it is difficult to view that the provision subject to the proposal of this case satisfies the adequacy of the means as long as there is no scientific empirical research that proves that the compulsory medication has the effect of preventing recidivism, and there is no reasonable doubt as to this point.

(d) the minimum extent of damage;

(1) The major issues of the sexual impulse medication system by judgment are to be determined at the time of the judgment of the accused case as to whether the recipient has a risk of sexual intercourse and recidivism. Considering the quality of the crime committed by the recipient, there is a high possibility of severe punishment to be sentenced. As such, there is considerable interval between the time of judgment and the actual time of execution of the medical treatment order (within 2 months prior to the completion of punishment, exemption and release, termination and provisional termination of medical treatment and custody, and release by entrustment of treatment). Since considerable uncertainty exists to determine the necessity of treatment and the risk of recidivism after the execution of punishment, it is true that the necessity of treatment and the need of recidivism are high, and it is possible to mislead the recipient who has no risk of recidivism, for instance, due to changes in circumstances, and for instance, high age of age, the possibility that sexual desire will be naturally reduced, and the possibility that the recipient may not be subject to punishment even if it is no more than 6 months prior to the first time of punishment or danger of recidivism, it is possible that the person subject to medical treatment will be subject to more than 6 months.

(2) Another problem of the pharmacologic treatment system by judgment is that there is no sufficient research on the side effects of the drugs scheduled to be used for treatment. The position of the Ministry of Justice is that the drugs publicly notified as treatment substances such as dypd, scquerelin, etc. have been used for long time at hospital due to pre-climatic cancer treatment, and that research results on side effects have been sufficiently verified. However, in the case of dyploid, scquerelin, it is hard to conclude that there is a significant side effects such as dypological disorder, salphism, heart pressure, cardiopulmonary pressure, dypopical pressure, dypology, dyposis, dyposis, etc. It is also difficult for the Ministry of Justice to consider the side effects of the dypological therapy in which it is impossible to treat the dypological therapy in a foreign country, even if it is based on the results of self-service of the Ministry of Justice, and it is also difficult to consider the risk of dypine treatment.

Furthermore, the possibility that other side effects than the time used for the original treatment may occur if the treatment chemicals are administered compulsorily for the purpose of removing sexual impulses, not for the original treatment purpose.

In addition, since the effect of the above medical treatment is merely a provisional effect for a period of up to 1 month, so long as the risk of sexual intercourse and recidivism is recognized as continuing, it is doubtful whether it has been sufficiently studied about the side effects of the above medical treatment for a prolonged period of up to 15 years.

If such side effects cannot be sufficiently predicted in advance, measures should be taken to minimize damage to the body by suspending medication at least when the side effects occur. In such purport, the Enforcement Decree of the Sexual Pharmacologic Treatment Act provides that if a probation officer executes a medical treatment order, he/she shall require a doctor of a treatment institution to conduct an examination and treatment of side effects together, and if there is a doctor's opinion that it may cause damage to the body of the person who has been issued a medical treatment order, or there is a significant side effect on medication, he/she may temporarily suspend medication (Article 11(1) and (2)). However, among the aforementioned side effects of the blrawld and Gochicrel, it may be difficult to determine whether the effect may gradually and flexibly occur depending on the long-term medication, and thus, it may be difficult for a doctor to determine whether there is a stage in which it is difficult for him/her to recover from damage. Therefore, it is doubtful whether there is any influence on the side effects of medication in accordance with the provision on medication only by the discontinuance of medication.

E) a balance of legal interests

(1) A sexual crime may lead to a physical or mental address that can not be recovered to the victim as much as “human murder.” In particular, when a sexual crime is experienced at the young age, it is also necessary to lead a normal life and live a happy life due to psychological wound and aftermathy. Also, sexual assault damage may lead to a huge mental pain and suffering to a family member living together with the victim or any other person having a close relationship with the victim without being confined to the victim’s individual. Furthermore, sexual assault damage is not limited to an individual’s problem but also causes damage to the society as a whole. A sexual crime may result in the decline of women’s activities and increase the social expenses necessary for the safe care of children and their attending school. As can be seen, the public interest to protect the people from a sexual crime is very high.

(2) However, as seen earlier, the treatment system of sexual impulses is a system that causes direct invasion on the body of the victim by forcibly administering the treatment drug according to a court’s judgment even if the victim does not consent. As such, the treatment system of sexual impulses itself not only damages the patient’s self-esteem and sense of shame, but also directly affect the reproductive capacity, but also may cause risks to health by exposing the victim to various side effects, and continuously cause apprehensions about such side effects. As such, the importance of the fundamental rights restricting sexual impulses treatment system and the degree of restricting fundamental rights is significantly larger than that of the personal disclosure system (limited to private secrets) or the electronic device attachment order system (restricted to freedom of action) introduced for similar purposes. Thus, in determining whether it conforms to the Constitution of the above system, more careful consideration should be given to other security measures.

(3) Therefore, as seen earlier, there is a reasonable doubt as to whether the sexual impulse medication system has the effect of preventing recidivism, and where it cannot be deemed that all measures have been taken to minimize damage by complying with the point of time of execution, or by providing measures to minimize side effects, etc., it shall not be deemed that measures have been taken to minimize damage. Thus, even though the sexual impulse medication system has the interest to protect, it may not be easily presented that the recipient of the medical treatment order has any disadvantage, etc.

(4) Ultimately, it is difficult to view that the principle of balance of legal interests has been observed in a situation where: (a) treatment of sexual impulses is not guaranteed when medical treatment is essential through scientific classification of a sexual offender; and (b) measures that can minimize the side effects that may arise to sexual offenders have been taken; (c) it is difficult to view that the principle of balance of legal interests has been observed.

F) The need for consent to pharmacologic treatment

In order to increase the effectiveness of recidivism of sexual impulse medication as a security measure, voluntary consent of sex offenders on sexual impulse medication and their mental and psychological treatment are required. Unlike the location tracking device that does not directly infringe on a sex offender's body and mind, sexual impulse medication is required to have an accurate understanding of the purpose, effect, and side effects of the treatment.

The Act on the Pharmacologic Treatment of Sexual Impulses requires "the consent of the parties concerned" with regard to a claim for sexual impulse medication against a prisoner who has not been sentenced to a medical treatment order or a person under medical treatment or a person under medical treatment and custody who is released from a protective custody during the execution of the treatment order (Articles 22(1) and 29(1) of the Pharmacologic Treatment Act). In the case of a medical treatment order by a court decision, it is stipulated that a person subject to sexual impulse medication may be subject to compulsory sexual impulse medication without the consent of the parties concerned. Article 9(1) of the first legislative bill provides that where a person subject to sexual impulse medication medication intends to obtain consent to the Pharmacologic Treatment Act without the consent of the parties concerned, the grounds, importance, and side effects of the Pharmacologic Treatment Act must be sufficiently explained in advance. Paragraph (2) provides that where the person subject to sexual impulse medication treatment lacks understanding and ability of judgment on the grounds, importance, side effects, etc. of the Pharmacologic Treatment, it is deleted by the current law.

The fact that countries that introduce the pharmacologic system are enforced only in extremely limited areas, such as Portd and part states of the United States, including California, among countries that introduce it, and that most countries, such as Germany and Sweden, have the real consent of the parties as essential requirements, is based on the recognition that the parties' genuine voluntary consent can be offset to some extent.

In the case of slrawls and scquerels designated by the Minister of Justice as drugs to be administered to the patients, it is difficult to expect the treatment effect to the patients who do not consent to the treatment. It is necessary to cooperate based on the voluntary consent of the parties in order to maximize the prevention effect of recidivism of sexual impulse medication. Nevertheless, it is difficult to see that compulsory enforcement without the consent of the parties is in accord with the principle of balance of legal interests in that it is difficult to expect the effect of sexual impulse medication.

3) Sub-determination

Ultimately, there is a reasonable doubt that the provision on the subject of the request of this case does not infringe on the completeness of the recipient of the medical treatment order by violating the principle of excessive prohibition under the Constitution.

4. Conclusion

For the above reasons, since there is a considerable reason to suspect that the provision subject to the proposal of this case is in violation of Articles 10, 12(1), and 37(2) of the Constitution, it is so decided as per Disposition.

Judges Ansan-Appellee (Presiding Judge)

Note 1) Of reference materials submitted by the Prosecutor on January 31, 2013, research on the best acquisition, “the selection of drugs for sexual impulse medication, drug medication, and examination process standardization”, see 3 pages.

Note 2) Of reference materials submitted by the Prosecutor on January 16, 2013, referring to the Sculpharmacologic A of sexual impulse medication system.

Note 3) Park Jin-Jin, “The constitutional and criminal policy review of the law on the treatment of sexual impulses of sexual assault offenders”, see the Constitutional and criminal policy review of the law, 47 collection, 185 pages.

Note 4) Maximum Doctrine, Doctrines, 14 pages.

Note 5) From among reference materials submitted by the Prosecutor on January 31, 2013, “The Bill on the Prevention and Treatment of Sexual Violence against Habitual Children” was reviewed and reported, see Section 11.

Note 6) At least 6), “The constitutional reordination of sexual impulse medication measures against sexual assault offenders” and “The Constitutional Court Research 11.”

Note 7) Maximum Acquisition, Bameoo, 15 pages