S-Space College of Law/Law School (법과대학/대학원) The Law Research Institute (법학연구소) Journal of Korean Law Journal of Korean Law Volume 15 Number 1/2 (2015/2016)
Adultery and the Constitution: A Review on the Recent Decision of the Korean Constitutional Court on ‘Criminal Adultery’
- Lee, Seokmin
- Issue Date
- School of Law, Seoul National University
- Journal of Korean Law, Vol.15 No.2, pp. 325-353
- Adultery; Constitutional Court of Korea; right to privacy; sexual selfdetermination; proportionality; 2009HunBa17; Protection of Marriage and Family System
- The Korean Constitutional Court (KCC) recently ruled in 27-1(A) KCCR 20, 2009Hun-Ba17· 205 (Consolidated), February 26, 2015 (hereinafter the “2015Decision”), that Article 241 of the Criminal Act related to adultery is unconstitutional due to its abuse of sexual autonomy and the freedom and privacy of personal life. It was a change of stance from the previous constitutional interpretations upheld in over four judicial rulings. In Korea, the legislature and executive are often criticized for their lack of contribution to decriminalization. They are in fact responsible for an increase in the criminal law. Therefore, the significance of this recent additional ‘decriminalizing’ decision by the Constitutional Court must be highlighted, providing a crucial step towards decriminalization. This 2015Decision on unconstitutionality reflects the trend of the rest of the world where many countries are banning the criminal regulation of adultery and the fact that some doubts are cast on whether the regulation is helpful for maintaining household integrity and marriage purity. The decision also reflects the criticism that the criminal law intervenes in the privacy of the individual and represents an abuse of the state’s punishment power. It also reflects a weakening of the justification in the recent era for protecting women as a socially vulnerable class. There are still various opinions regarding the appropriateness of abolishing the criminal regulation of adultery, but the most important fact is that it has been abolished in Korea by this landmark decision of the KCC.