2016 Global Review of Constitutional Law

the welfare and rights of women secured by
Article 34 (3), and violates the protection
of mothers secured by Article 36 (2). The
Constitutional Court explained that it takes a
long time to prepare for the Bar Exam compared
to other national exams. Therefore,
limiting the number of attempts can prevent
talented people from wasting time and thus,
the Article can be interpreted as rational and
constitutional. On the other hand, the Constitutional
Court did not decide if Article 7
(2) is constitutional because the Court mentioned
that it is too late for the plaintiff to
initiate a constitutional complaint.
Unconstitutionality of Registration of Personal
Information of Ex-Sexual Offenders
(2016. 3. 31. – 2015 Hun-Ma 688)
The Constitutional Court decided the following
cases as unconstitutional. On March 31,
the Constitutional Court decided that Article
42 (1) of the “Act on Special Cases Concerning
the Punishment, etc. of Sexual Crimes”
is unconstitutional. According to the Article,
the person finally declared guilty of crimes
such as obscene acts by using means of communication
shall be subject to registration
of personal information. The plaintiff was
prosecuted for allegedly sending an e-mail
that caused a sense of sexual shame in a
14-year-old girl. He was declared guilty and
sentenced to pay a fine of one million Korean
Won and ordered to take a 40-hour sexual
violence prevention program. The plaintiff
initiated a constitutional complaint that Article
42 (1) of the Act violated his right of
self-determination on personal information.
The Constitutional Court decided that the
Article exceeded the minimality of the violation
because the Article decrees that all
persons who are declared guilty are subject
to registrations regardless of the gravity and
characteristics of their crimes. The Constitutional
Court deemed that plaintiff’s violated
benefit, and the obtained social interests by
the Article, are not balanced and decided that
it was unconstitutional. In this case, however,
three Justices expressed opposition.
Unconstitutionality of Limiting Ex-Sexual
Offender’s Right to Work at Child or Juvenile
Related Institutions and Facilities with
Disabled Persons (2016. 3. 31. – 2013 Hun-
Ma 585 • 786, 2013 Hun-Ba 394, 2015 Hun-
Ma 199 • 1034 • 1107 (combined), 2016. 7.
28. – 2015 Hun-Ma 915)
On March 31, the Constitutional Court gave
a decision of unconstitutional in some other
cases regarding the rights of ex-convicts of
sexual crimes. According to Article 44 (1) of
the “Act on the Protection of Children and
Juveniles against Sexual Abuse,” ex-convicts
who had committed sexual crimes and
sexual offenses against children or juveniles
are prohibited from working at a child or juvenile-related
institution for 10 years. The
plaintiffs insisted that the Article violates
their freedom of occupation. The Constitutional
Court recognized “correctness of purpose”
and “appropriateness of procedure,”
and ruled the Article as unconstitutional
because banning ex-convicts to work for
10 years based on the assumption that they
will repeat their offences is a violation of
the “minimality of damage” and “balance of
benefit and protection of law.”
On July 28, the Constitutional Court decided
that Article 59-3 (1) of the “Act on Welfare
of Persons with Disabilities,” which prohibited
ex-convicts who had committed sexual
crimes and sexual offenses against children
and juveniles from working at facilities for
persons with disabilities for 10 years, was
unconstitutional.
Unconstitutionality of the Term “Job Detrimental
to Public Health or Public Order” in
the Act on the Protection, etc. of Temporary
Agency Workers (2016. 11. 24. – 2015 Hun-
Ga 23)
The cases discussed above seem to indicate
that the Korean Constitutional Court is relatively
generous to ex-convicts of sexual
offenses. The Court, however, did not take
kindly to foreign, female, temporary workers
being involved in the sex industry. On
November 24, the Constitutional Court ruled
Article 42 (1) of the “Act on the Protection,
etc. of Temporary Agency Workers” as unconstitutional.
The plaintiff was sentenced to
eight months’ imprisonment at the first trial
for sending a foreign, female, temporary
agency worker to a nightclub to engage in
prostitution. Article 42 (1) of the Act decrees
that “each person, who assigns a worker to
place him/her in a job detrimental to public
health or public order, shall be punished by
imprisonment for not more than five years
or by a fine not exceeding 50 million won.”
The plaintiff insisted that the term “job detrimental
to the public health of public order”
is vague. The Constitutional Court ruled the
Article unconstitutional due to the “Principle
of Clarity.”
Recognizing Traffic Accidents during Commute
as “Accident on Duty” (2016. 9. 29. –
2014 Hun-Ba 254)
Decisions of unconformity made by the
Constitutional Court were observed in 2016.
On September 29, the Constitutional Court
decided unconformity to the Constitution
on Article 37 (1) of the “Industrial Accident
Compensation Insurance Act.” The plaintiff
broke his fingers in a car crash while on his
way home by bicycle. Although he applied
to the Korea Workers’ Compensation and
Welfare Service for medical care benefits,
he was rejected because the accident during
the commute was not considered an accident
while on duty. On the other hand, Article 29
of the “Enforcement Decree of the Industrial
Accident Compensation Insurance Act” decrees
that accidents that occur while using
transportations provided by the employer
are deemed accidents on duty. The plaintiff,
therefore, insisted that Article 37 of the Act
violates the principle of equality secured by
the Constitution. The Constitutional Court
decided that the Act is unconstitutional because
there is no relevant reason to separate
commuters into those taking transportation
provided by employers and others.
Foreign, International, and Multilateral Relations
Constitutional Complaint on GSOMIA with
Japan (2016. 12. 6. – 2016 Hun-Ma 1007)
On December 6, the Constitutional Court dismissed
the Constitutional complaint on the
“Agreement Between the Government of Japan
and the Government of the Republic of
Korea on the Protection of Classified Military
Information (GSOMIA).” The Court pointed
out that it is necessary that the violated plaintiff’s
fundamental rights be violated for the
plaintiff to initiate a Constitutional complaint.
Although the plaintiff insisted that some sec-
194 | I•CONnect-Clough Center