Right to Privacy: U.S. v. Korea ~ The Korean Law Blog

Wednesday, November 28, 2007

Right to Privacy: U.S. v. Korea

Brendon Carr has mentioned on his blog that:

"The Korean Constitution recognizes a right to privacy. The US Constitution does not—we come from the proverbial “open society”. While both countries subscribe to the idea that the courts do the people’s business', Korea is much more conservative about balancing the people’s ownership of the judiciary against the individual’s right to privacy."

The U.S. does "recognize the right to privacy." Roe v. Wade is the most noteworthy case concerning the "right to privacy."

The issue is not simply that the U.S. doesn't have a right to privacy. The U.S. does. Also, Korea does not have an "absolute" right to privacy - A "Megan Law" was held constitutional by the Constitutional Court.

The issue is fundamentally the balancing of the right, the conception of state action, and the heightened level of protection offered through law, not the constitution, for the protection of privacy.

_____
SeanHayes@ipglegal.com

2 comments:

Brendon Carr (Korea Law Blog)Nov 27, 2007 07:27 PM
You're the Constitutional specialist, so I must defer to your greater scope of research and experience. Give me the benefit of the doubt, though: It's tough to boil down comparative-law concepts to a single sentence or couple of sentences.

The "Megan's Law" reference you make is interesting.; I'd noticed that reported in the news. For the rest of the readers, Sean points out that Korea has recently adopted a statute authorizing the disclosure of identities of persons convicted of sexual offenses against minors, and, I believe (correct me if I'm wrong), notice to the neighborhood.

This is a very welcome development. I work with employers who sometimes bring people into contact with children through their work (think kiddy television), and previously the complete unavailability of information on criminal history has frightened these employers to death.
ReplyDelete
Sean HayesNov 27, 2007 11:03 PM
Thanks Brendon it is always great to hear rom you. The Megan's law case is below. Very interesting issue and also interesting for its use of foreign law.

Some employers are requesting, before employment, for the employee to give the employer a their criminal records. I believe the government has been doing this for a long time.

Sean

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3. Disclosure of the Identity of Sex Offenders Convicted of Acquiring Sexual Favors from Minors in exchange for Monetary Compensation

(15-1 KCCR 624, 2002Hun-Ka14, June 26, 2003)

Contents of the Decision

1. Whether Subdivision 1 of Article 20(2) of the Juvenile Sex Protection Act (hereinafter referred to as the "Act"), which mandates the disclosure of identity of sex offenders convicted for acquiring sexual favors from minors in exchange for monetary compensation,

(i)violates the principle of double jeopardy (negative);

(ii)lacks proportionality and violates the principle against excessive

restriction (negative);

(iii)violates the principle of equality (negative);

(iv)infringes upon the right to trial by judge (negative); or

(v)violates the principle of due process (negative).

2. Whether Article 20(5) of the Act, which delegates matters concerning the time, duration, and procedure of disclosure to be regulated by presidential decree, violates the principle against blanket delegation (negative).

Summary of the Decision

1. With respect to Subdivision 1 of Article 20(2) of

the Act,

Opinion of Justices Yun Young-chul, Ha Kyung-chull, Kim

Hyo-jong, and Kim Kyung-il that Subdivision 1 of Article 20(2)

of the Act is constitutional

A. Whether the provision on review violates the principle of

double jeopardy

The 'punishment' within the meaning of Article 13(1) of the Constitution is, in principle, the imposition of punishment as the exercise of the state's authority to punish crime, and not all of the sanctions or prejudicial dispositions imposed by the state are included within the above definition of "punishment."

As Article 20(1) of the Act expressly states that the legislative purpose of the disclosure of the identity of convicted offenders under the Act is to "guide the public not to commit such crimes as acquiring sexual favors from minors in exchange for monetary payment," possible shame and dishonor may be followed on the part of the person whose identity is disclosed, but such shame and dishonor is merely incidental to the above legislative purpose and not a primary purpose. In addition, the identity and the underlying criminal conduct disclosed under the Act are part of conviction from a public trial and are therefore not new elements concerning the identity or privacy of the convicted defendant. Although disclosure for the sake of the public interest may incidentally incur shame, this cannot be deemed as a separate punishment in the nature of punishment of disgrace or indignity. Therefore, the disclosure of identity under the Act does not violate the principle of double jeopardy in Article 13 of the Constitution.

B. Whether the provision on review lacks proportionality and

violates the principle against excessive restriction

The disclosure of identity under the Act is not to punish the convicted offender. Instead, it is adopted to increase awareness in order to protect the community against the existing danger of sexual offenses and for the self-control of the general public against the criminal impulse to sexually take advantage of minors. The objective of the 'protection of the sexual integrity of the minors' is one of the most important public interests in our community.

Considering, in comparison, the degree of the restriction upon the general right to personality and the right to privacy of sex offenders convicted for acquiring sexual favor in exchange for monetary payment, as Article 20(2) of the Act provides the "identity such as name, age, and vocation and the summary of the criminal conduct" to be disclosed, the disclosure here means that the state discloses, for the public's interest, certain parts of the public record of the decision of conviction rendered in a criminal proceeding that was a public procedure. Therefore, the public's knowledge of the identity and the criminal history of the convicted offenders, which was readily obtainable information in a public trial, does not manifestly infringe upon the right to personality or privacy of such convicted offenders.

In addition, a further restriction upon the basic rights of the convicted criminals compared with whose identity and criminal conduct are disclosed unlike the general public is readily tolerable by the state's exercise of the authority to punish crimes. Even if the offenders convicted for acquiring sexual favors from minors in exchange for monetary compensation feel ashamed and are defamed by the disclosure of their identity and criminal conducts, the degree of protection therefor is duly different from that of the general public, therefore there is room for a further restriction upon such convicted offenders' right to personality and privacy as long as the restriction is not upon the essential part of such rights.

Therefore, as the degree of restriction upon the right to personality and privacy of the offenders convicted for acquiring sexual favors from minors in exchange for monetary compensation, is not greater than the request of public interest to protect the sexual integrity of minors, the disclosure of identity under Subdivision 1 of Article 20(2) does not infringe upon the right to personality and privacy of the convicted offenders concerned in violation of the principle of proportionality or the prohibition against excessive restriction.

C. Whether the provision on review violates the principle

of equality

The meaning and the purpose of the legal provision setting forth the sexual offenses against minors subject to the disclosure of identity of the offender is to protect the minors against the harm caused by such conduct as acquiring sexual favors from minors in exchange for monetary compensation. In light of the above meaning and purpose, such sexual offenses against minors and other crimes in general cannot be manifestly deemed as 'essentially identical' to be compared. Further, there are no factors to conclude that the above standard for distinction is especially arbitrary.

Also, where certain offenders having committed other sexual crimes against minors are excluded from the disclosure under the Act, it seems that the difference in the degree of illegality of conduct is taken into account as such exclusion applies to the act of aiding and abetting, in nature, in terms of the object or the type of the act. Therefore, the law excluding certain offenders having committed other sexual crimes against minors from the disclosure of identity is not manifestly arbitrary or unreasonable.

Although the disclosure of identity accompanies a different treatment in the degree of restriction upon basic rights, such different treatment is not deemed to be discriminatory in terms of the proportionality between the legislative purpose and the means to achieve such purpose, and does not otherwise violate the right to equality.

D. Whether the provision on review infringes upon the right

to a trial by court and judge

Although the requesting court avers that the disclosure of identity infringes upon the right to a trial by court and judge as the decision to disclosure identity is subject to the Commission on Youth Protection, the disclosure of identity is not, as discussed above, included in the definition of 'punishment.' Therefore, the disclosure of identity does not infringe upon the right to a trial by judge.

E. Whether the provision on review violates the principle

of due process

Article 20(3) of the Act provides that the Commission on Youth Protection should, in determining the disclosure of identity, take into account the motive of the crime, the circumstances subsequent to the crime, and other factors. Article 20(5) of the Act provides that necessary matters concerning specific procedures of disclosure be determined and regulated by presidential decree. The inferior provisions, pursuant to the above legal provisions, provide convicted sex offenders whose identity is determined to be disclosed with an opportunity to state an opinion in writing by designating a time period of ten(10) days or longer, subject to an irrebuttable presumption that such person does not hold an opinion should no opinion be stated within such period, while the disclosure of identity is determined upon review should an opinion be stated.

The Commission on Youth Protection is an institution with some extent of independence and neutrality (See Articles 29 and 32, and other relevant provisions of the Youth Protection Act). There is a guaranteed opportunity to dispute the legality of the Commission on Youth Protection's decision to disclose identity by way of an administrative litigation. Also, any decision to disclose identity is made subsequent to sentencing upon conviction of a crime through a trial by judge.

Therefore, as the disclosure of identity under Subdivision 1 of Article 20(2) of the Act is performed pursuant to the formal procedure provided by the law and as the content of such procedure is also reasonable and justifiable, the above provision does not violate the principle of procedural due process.

Opinion of Justices Han Dae-hyun, Kim Young-il, Kwon Seong, Song In-jun, and Choo Sun-hoe that Subdivision 1 of Article 20(2) of the Act is unconstitutional

(1) Infringement upon the right to personality

(A) For an unhindered manifestation and realization of personality of an individual through societal activities, the right to self-determination upon such individual's social personality factors, that is, the right to determine for himself or herself upon various informative materials that can be crucial in defining his or her image in the eyes of others. The disclosure of identity under the Act in this case considerably infringes upon the right to personality of the convicted offenders by grossly restricting the right to self-determination upon such social personality factors.

(B) The disclosure of identity has a remarkably similar characteristic to that of a punishment of shame and indignity, to the extent that it may be compared to a 'Scarlet Letter of the modern times.' That is, the current identity disclosure mechanism insinuates a strong impression that those subject to the identity disclosure are treated as a means to prevent the crime through a public display rather than being respected as the holders of unique personality. This is in outright violation of the constitutional principle declaring that it is the obligation of the state to protect fundamental dignity and the value of every individual, even for a convicted criminal.

(C) In order to cure the evil practice of acquiring sexual favors from minors in exchange for monetary compensation, it is readily possible to utilize synthetically such various mechanisms as treating and effectively watching over the sex offenders, guiding the minors and implementing policies to improve the environment harmful to the minors, rather than monolithic punishment of criminal sentencing or identity disclosure. Rather, in light of the reality where the ratio of discovered incidents of acquiring sex from minors in exchange for monetary compensation against such incidents overall is extremely low, it seems that it is more desirable to focus on the above fundamental preventive measures. The state's employment of an abnormal means of identity disclosure that might significantly infringe upon the individuals' right to personality even before making an exhaustive effort of prevention is problematic also in terms of the principle of the least intrusive means.

(D) A criminal punishment is understood to be the very last means (the 'ultima ratio') of the state sanction as it causes significant restriction upon the individual's freedom and safety. It is an excessive abuse of the state's power to impose the disclosure of identity that may be even severer than a punishment, where a punishment is already imposed and the disclosure of identity does not serve any purpose or assume any function distinct from that of a punishment. Furthermore, while the infringement upon the basic rights of the individual whose identity is disclosed is egregious, the effect on crime prevention from such disclosure of identity is minimal or uncertain. The identity disclosure under the Act, also in this respect, seriously lacks balance between the legal interests concerned.

(E) In summary, the disclosure of identity of offenders convicted of acquiring sex from minors in exchange for monetary compensation excessively infringes upon the right to personality of such individuals.

(2) Violation of the principle of equality

Subdivision 1 of Article 20(2) of the Act restricts the right to self-determination upon social personality factors of the offenders convicted of acquiring sex from minors in exchange for monetary compensation, on the ground of the prevention of crime. However, although the Act does not permit such restriction through identity disclosure upon other criminals in general or even certain groups of sex offenders against the minor (hereinafter referred to as the 'other convicted criminals in general'), the crime prevention rationale should be equally applicable to the case of other convicted criminals in general. Therefore, whether or not the distinction between the above two groups can be justified requires a constitutional explanation. Here, the disclosure of the identity of criminals convicted for purchasing sex from minors is not due to a more egregious nature of the crime, a severer minimum sentence, or a higher likelihood of recidivism. Furthermore, the special nature of the legal interest of the 'protection of the sexual integrity of minors' does not function as a crucial standard in determining the disclosure of identity, as shown by the fact that the identity of those criminals convicted of inducing or soliciting minors to offer sexual favors in exchange for money (See Article 6(4) of the Act), who are criminals inciting and promoting the sale and purchase of sex from minors, is not disclosed, despite a severer minimum sentence.

In summary, no reasonable ground for treating the other criminals in general and the purchaser of the sex of the minors differently can be found, with the exception of the legislative intent to convey a strong warning to adult males against the conduct of purchasing sex from minors, which may serve as the sole ground for distinction.

However, the above legislative purpose is not of the nature or of the significance sufficient to justify the disclosure of the identity of the offenders convicted of purchasing sex from minors, as previously reviewed in the context of discussing the possible infringement upon the right to personality.

Therefore, the disclosure of the identity of the offenders convicted of purchasing sex from minors and not of the other criminals in general is against the principle of equality, as it lacks any proper balance between the ground for the distinction and the content of the distinction.

2. With respect to Article 20(5) of the Act,

Opinion of Justices Yun Young-chul, Ha Kyung-chull, Kim Hyo-jong, and Kim Kyung-il that Article 20(5) of the Act is constitutional

The "specific time, duration, and procedure and other matters" delegated by Article 20(5) of the Act are merely incidental to the disclosure of identity, and does not constitute an essential part thereof. Furthermore, the "time" of disclosure to be provided by the presidential decree is anticipated to be a point closer from the date of the conviction and final decision of the court to a certain time at the interval of twice or more per year considering Article 20(1) (requiring that a "statement of guidance be prepared more than twice per year"), the "duration" of disclosure is anticipated to be normally for a period of six(6) months or shorter as a reasonable time period for the achievement of the legislative purpose considering that the above provision sets forth the frequency of "more than twice per year," the general content of the "procedure" is predictable considering various relevant provisions of the Act such as Article 20(3) of the Act, and "other matters" are to a certain degree anticipated to be such other matters necessary to the disclosure of the identity to be regulated by presidential decree similar to the time, duration and procedure of the disclosure. Therefore, the general content delegated to be provided and regulated by presidential decree under the Act is reasonably predictable.

Therefore, Article 20(5) of the Act is not against the principle of the prohibition against blanket delegation.

Opinion of Justices Han Dae-hyun, Kim Young-il, Kwon Seong, Song In-jun, and Choo Sun-hoe that Article 20(5) of the Act is unconstitutional

The time, duration, and procedure of the disclosure are not merely incidental matters, but very essential elements of the identity disclosure mechanism that determine the overall nature and operative direction of such mechanism, and are also important factors that directly affect the basic rights of the individuals whose identity is disclosed. Article 20(5) of the Act, however, does not specifically provide for the basic content or the scope of the time, duration, or procedure of disclosure and, instead, delegates such matters all together to the presidential decree. Therefore, it is impossible to understand the overall content of the specific time, duration, and procedure of the identity disclosure based on the Act alone without further referring to the inferior provisions and orders.

Therefore, the provision on review is a statutory provision of blanket delegation, and, as such, is beyond the legitimate scope of legislative delegation permissible under the Constitution.

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Parties

Requesting Court

Seoul Administrative Court

Petitioner

Doo, ○ Gyoon

Counsel of record: Choi, Jong-baek and 2 others

Original Case

Seoul Administrative Court, 2001Gu28240,

Seeking Revocation of Disposition Disclosing Identity

Holding

1. Neither Subdivision 1 of Article 20(2) nor Article 20(5) of the Juvenile Sex Protection Act (Enacted by Act No. 6261 on February 3, 2000) is unconstitutional.

2. The remainder of the request for constitutional review of the statute is dismissed.

Reasoning

1. Overview of the Case and the Subject Matter of Review

A. Overview of the Case

(1) The petitioner was sentenced to a fine in the amount of ￦5,000,000 by the Jeon-Joo District Court on August 18, 2000 for the violation of Article 5 of the Juvenile Sex Protection Act, upon conviction of a sexual intercourse with a minor on July 1, 2000 in exchange for the payment to the minor in the amount of ￦60,000. This judgment was entered and became final on August 26, 2000.

(2) The Commission on Youth Protection, pursuant to Article 20 of the Act, determined on May 3, 2001 to disclose the name, age, birthdate, vocation, and address of the petitioner and the summary of the crime in the official gazette, and to disclose the same on the Internet homepage of the Commission on Youth Protection for six(6) months and also on the bulletin board of the main office of the Central Government Complex, the city halls of Seoul and the metropolitan cities, and the main office of each province for one(1) month.

(3) The petitioner thereupon filed a lawsuit on July 16, 2001 with the Seoul Administrative Court against the Commission on Youth Protection (2001Gu28240) seeking revocation of the above disposition to disclose the petitioner's identity and, while the above lawsuit was pending, moved the court to request for a constitutional review of Article 20 of the Act (2002A15). The Seoul Administrative Court dismissed the motion for the request for constitutional review with respect to Subdivisions 2 through 7 of Article 20(2) of the Act, and rejected the motion on the merit with respect to Article 20(1) of the Act. With respect to Subdivision 1 of Article 20(2) of the Act and Articles 20(3), 20(4), and 20(5) of the Act, the Seoul Administrative Court granted petitioner's motion and filed a request on July 26, 2002 for constitutional review of the above provisions of the Act with the Constitutional Court.

B. Subject Matter of Review

The subject matter of review in this case is whether Subdivision 1 of Article 20(2) or Article 20(3), 20(4) or 20(5) of the Juvenile Sex Protection Act (Enacted by Act No. 6261 on February 3, 2000) is unconstitutional. The content of the provisions on review and other relevant provisions is as follows:

Article 20 (Guidance for Crime Prevention)

(1) The Commission on Youth Protection shall post or distribute instructions for preventing offenses including the purchasing of sex with Juveniles at least twice a year by ways set forth in the Presidential Decree including posting in the official gazette.

(2) The instructions in Section 1 may disclose personal information such as name, age, or occupation and the gist of the offense of offenders of any of the following, after sentence is determined, except when the offender is a Juvenile.

(i) Any person who violates Article 5

(ii)-(vii) [omitted]

(3) In determining the disclosure of personal information pursuant to Section 2, the Commission on Youth Protection shall ensure that there is no improper infringement of human rights against the subject and his/her family taking into account the age of the victimized Juvenile and the offender, the motivation, the method, the result and the nature of the offense, the criminal history of the offender, the relationship of the offender with family and the subject Juvenile or other circumstances after the offense.

(4) In the disclosure of personal information pursuant to Section 2, the subject or victimized Juveniles of Article 5 to Article 10 may not be disclosed.

(5) Specific timing, period or process of posting the instructions pursuant to Sections 1 and 2 shall be provided by Presidential Decree.

Article 5 (Conduct of Acquiring Sexual Favors from Minors in exchange for Monetary Compensation)

Any person who purchases sex with Juveniles shall be sentenced

to imprisonment up to 3 years or fined up to 20 million won.

The Juvenile Sex Protection Act (Enacted by Act No. 6261 on February 3, 2000, Prior to Amendment by Act No. 6479 on May 24, 2001)

Article 2 (Definitions)

The following terms have the following meanings:

(1) The term "Minor" herein shall mean any person below nineteen(19) years old.

(2) The term "Purchasing sex from minors" herein shall mean to purchase sex from minors by offering or expressing the intention to offer money and goods or interests of a proprietary nature, or compensation of service, convenience, etc. to the minors him/herself, with the person pandering to minors or the person virtually protecting/supervising the minors to do any of the following:

(i) Sexual intercourse with minors

(ii) Quasi-sexual intercourse by means of a part of the body including the oral cavity or the anus, or with sexual apparatus

(3) [omitted]

2. Opinions of the Requesting Court and the Related Parties

A. Grounds for Requesting Constitutional Review

(1) Disclosure of the identity of a person convicted of acquiring sexual favors from a minor in exchange for monetary compensation (hereinafter referred to as the 'offender convicted for purchasing sex from a minor') intends to effect both special and general crime prevention and, as such, practically has the nature of punishing such conduct. Furthermore, the criminal punishment against the offender convicted for purchasing sex from a minor and the disclosure of the identity of such individual following the final sentencing decision share the identical conduct as the object and intend to protect the same legal interest. Therefore, the disclosure of the identity of the offender convicted for purchasing sex from a minor meets the definition of double jeopardy prohibited under Article 13(1) of the Constitution.

(2) As long as the identity disclosure has the nature of criminal punishment, the determination upon disclosure by the Commission on Youth Protection, which is an administrative institution, infringes upon the right to trial by court and judge and violates the principle of due process.

B. Argument of the Petitioner

(1) The name, age, birthdate, vocation, and address of the offender convicted for purchasing sex from a minor and the summary of the criminal conduct belong to the privacy of the individual concerned, and the public disclosure of the above information incurs a severe insult on the personality of the offender convicted for purchasing sex from a minor. Therefore, even as a means to achieve the legislative purpose of protection of minors, in order to minimize the infringement upon basic rights, a better utilization of the existing mechanism of criminal punishment and preventive security measures is more desirable than a new system of identity disclosure. Even in adopting an identity disclosure system in addition to criminal punishment, an incremental disclosure according to the nature of the crime or the likelihood of recidivism should be employed as a method thereof. However, the current identity disclosure system allows a nationwide public disclosure of the identity of even a first-time offender or someone imposed of a relatively light sentence such as a fine. Therefore, the currently identity disclosure system is unconstitutional as it excessively infringes upon the right to personality or privacy of the offender convicted for purchasing sex from a minor.

(2) Whereas Article 20(2) provides for the disclosure of the identity of the offender convicted for purchasing sex from a minor, there is no such comparable provision for disclosure of the identity of the convicted criminal applicable to the crime of murdering a minor, kidnapping and false imprisonment of a minor, burglary against a minor, or taking a minor hostage. There is no essential difference between the conduct of purchasing sex from a minor and the above crimes in the sense that the above crimes all infringe upon the legal interest of the protection of the minors. Singling out and disclosing the identity of sex offenders only violates the principle of equality.

Furthermore, Article 20(2) provides the identity of the criminals convicted of only part of sexual offenses against minors to be disclosed, whereas the sexual offenses the committers of which are subject to the disclosure of identity and the sexual offenses that do not cause disclosure of identity of the offenders intend to protect the same legal interest of the protection of minors. However, the standard distinguishing these two groups is vague and unclear, which causes a problem of the violation of the principle of equality.

(3) Other than the above, the petitioner shares generally the same opinion with that of the requesting court.

C. Opinion of Chairman of the Commission on Youth Protection

(1) The current identity disclosure system was adopted under a legislative policy for the achievement of the protection of the sexual integrity of minors. As such, it is a new crime prevention device distinct from such typical criminal sanctions as criminal punishment or preventive security measures and also has a different meaning and significance from that of punishment in terms of the essential nature, the purpose, and the function. Therefore, disclosing the identity of sex offenders having committed sexual crimes against minors separately from the imposition of punishment does not violate the prohibition against double jeopardy.

(2) Although fortifying criminal punishment and preventive security measures may be considered as one of many possible means to achieve the goal of the 'protection of the sexual integrity of minors,' such means may not discernibly be something less restrictive upon the basic rights. In addition, it may be possible for certain administrative authorities to register and retain a list of sexual offenders having committed sexual crimes against minors and to disclose the information concerning such offenders merely to those who reside in the same district as the residence of such sexual offenders as an alternative to the nationwide disclosure toward the general public, this may not necessarily be less intrusive than the current identity disclosure system, as this means will require disclosure of much more detailed and concrete information than the currently required information in order to secure effectiveness. Therefore, adopting the current identity disclosure system and not the above alternatives is not against the requirement of least intrusiveness.

Furthermore, the current identity disclosure system intends to 'protect the sexual integrity of minors' which is the most important public interest of our society, and the information subject to disclosure, which includes the name, age, birthdate, vocation, address (based on the statement thereof in the final judgment of the court as less detailed than the unit of Shi/Ku/Kun) and the summary of the criminal conduct, does not exceed the scope of items disclosed in any final judgment of the court. In addition, considering that, in reality, the criminal conduct of an individual usually becomes known to those surrounding such individual in the process of a trial or during the investigation or detention, the current identity disclosure system can hardly be deemed as a system lacking a balance between the legal interests concerned. Therefore, the current identity disclosure system does not infringe upon the basic rights of the sex offenders in violation of the principle of proportionality or the principle against excessive restriction.

(3) The legal interest protected by punishing sexual offenses against minors is the protection of the sexual integrity of minors, whereas the legal interests protected by punishing the murder of minors,

kidnapping and false imprisonment of the minors, burglary against minors and taking minors hostage are the life, liberty, and property of the minors, respectively. Therefore, the above two groups are different in their essence and a different treatment of the above two is thus not against the principle of equality.

In addition, distinguishing the sexual offenses against minors subject to the disclosure of the identity of the offenders from the sexual offenses against minors that are not subject to disclosure is based on the differences in the objects, purposes, and characteristics of the respective conduct, and is thus a reasonable distinction. Therefore, such distinction is not against the principle of equality.

(4) The disclosure of identity should not necessarily be determined by a judge, as it is not a criminal punishment or a sentence. Also, the disclosure of identity is determined subsequent to a final sentencing decision through a trial by a judge and an individual whose identity is determined to be disclosed is provided with an opportunity to be heard pursuant to Article 9(3) of the Operative Bylaw of the Subcommittee for Review prior to Identity Disclosure and is also guaranteed an opportunity to dispute the lawfulness of the determination to disclose the identity in an administrative litigation. In light of the above, the current identity disclosure system neither infringes upon the right to trial by judge nor violates the principle of due process.

3. Review on the legal prerequisites

A. With respect to Subdivision 1 of Article 20(2) of the Act

Subdivision 1 of Article 20(2) of the Act is a precondition of the underlying trial as it serves as the direct ground for disclosing the identity of the offenders convicted for purchasing sex from minors.

B. With respect to Articles 20(3) and 20(4) of the Act

The requesting court requested a constitutional review of Articles 20(3) and 20(4) of the Act as well, on the ground that Articles 20(3) and 20(4) also become inapplicable should Subdivision 1 of Article 20(2) of the Act be held unconstitutional. However, even if Subdivision 1 of Article 20(2) were to be held unconstitutional, no incidental decision holding Articles 20(3) and (4) also unconstitutional would be required, considering there is no request for constitutional review with respect to Subdivisions 2 through 7 of Article 20(2) of the Act.

On the other hand, Article 20(3) of the Act provides that a determination to disclose identity should not infringe upon the human rights of the individual subject to identity disclosure or such individual's family members upon considering various factors. Additionally, Article 20(4) of the Act provides that the identity of the minor who is the victim of the offenses subject to the identity disclosure at issue should not be disclosed. As such, the content of the above provisions is not relevant at all to the constitutionality or unconstitutionality of the identity disclosure of the offenders convicted for purchasing sex from minors at issue in this case. Nor does it seem that the court in the underlying trial will reach a different conclusion in rendering its judgment depending upon the constitutionality or unconstitutionality of Article 20(3) or 20(4) of the Act. Therefore, Article 20(3) or 20(4) of the Act is not a precondition of the underlying trial and the request for constitutional review of these provisions is thus unjusticiable.

C. With respect to Article 20(5) of the Act

Article 20(5) of the Act delegates the regulation of matters concerning the time, duration, and procedure of the disclosure of identity to be done by presidential decree. If this provision is held unconstitutional, the relevant provisions of the presidential orders and the dispositions of identity disclosure pursuant to this provision would also be unconstitutional. Article 20(5) of the Act is thus a precondition of the underlying trial, as this provision is applicable to the underlying trial, the constitutionality of which affects the outcome of the underlying trial.

4. Overview of the Identity Disclosure System

A. Content of the Identity Disclosure System

The Commission on Youth Protection must prepare a newsletter of statements and instructions for prevention of crimes such as acquiring sexual favors from minors in exchange for monetary compensation not less often than twice a year and post or distribute such newsletter nationwide by means of publishing it in the official gazette. The identity of the criminals convicted of rape and other sexual offenses to minors, acquiring sex from minors in exchange for money and arranging such exchange, or manufacturing or distributing obscene materials featuring minors may be included in the above newsletter and thereby disclosed (Articles 20(1) and 20(2) of the Act).

The Commission on Youth Protection therefor should request biennially the head of the relevant government institutions including the Ministry of Justice and the Ministry of Defense for information concerning individuals convicted for crimes listed in each of the subdivisions of Article 20(2) of the Act (Article 2(1) of the Enforcement Decree of the Juvenile Sex Protection Act, hereinafter referred to as the 'Enforcement Decree'), and should also prepare a newsletter of statements and instructions and post or distribute the same within five(5) months from the date of receiving the above relevant information (Article 3(1) of the Enforcement Decree).

The actual determination to disclose identity is made by the Identity Disclosure Prior Review Subcommittee (hereinafter referred to as the 'Review Subcommittee') consisting of nine(9) experts from relevant fields including the legal community, academia, and NGOs commissioned by the Chairman of the Commission on Youth Protection established under the Commission on Youth Protection. Pursuant to the 'Operative Bylaw of the Subcommittee for Review prior to Identity Disclosure' (hereinafter referred to as the 'Operative Bylaw'), which is an internal regulation of the Commission on Youth Protection, the Review Subcommittee renders, upon review pursuant to the so-called 'Identity Disclosure Review Guideline,' a determination to disclose the identity of an individual convict whose final score is sixty(60) or higher (out of the scale of 100) by combining the result of the review of such requisite components as the gravity of the sentence, the type of crime, the age of the minor victimized, the motive, means, outcome and nature of the crime, and the past criminal record and the result of adjustment based on other factors (add or subtract within the range of 10% from the original score) (See Article(1) and other provisions of the Operative Bylaw).

The Commission on Youth Protection must provide an individual whose identity has been determined to be disclosed with an opportunity by a notice of ten(10) days or longer, to state in writing such individual's opinion (Article 9(3) of the Operative Bylaw). Should no opinion be stated by the expiration of the given period of time, it is conclusively presumed that the individual does not hold an opinion; should the individual state an opinion, a further review is taken for the disclosure of identity (Article 9(4) of the Operative Bylaw). When a final determination is reached to disclose the identity of certain individual convicts, a notice of such fact must be served upon each individual, and the identity of such individual is to be disclosed after sixty(60) days from the date an effective service is made (Article 4 of the Enforcement Decree).

What is disclosed includes the individual convict's name (stated in both the Korean and the Chinese alphabets and, in the case of a foreign national, stated in the Korean alphabet and in the Roman alphabet or Chinese alphabet), age and birthdate, vocation (based on the statement thereof in the final judgment of the court), address (based on the statement therof in the final judgment of the court, with no further descriptions than Shi/Kun/Ku), and the summary of the criminal conduct (See the main provision of Article 20(2) of the Act and Article 3(2) of the Enforcement Decree). The methods of disclosure include 'posting in the official gazette,' the 'posting on the Internet homepage of the Commission on Youth Protection for a period of six(6) months,' and 'posting on the bulletin board of the main office of the Central Government Complex, the City of Seoul, the metropolitan cities, and the provinces for a period of one(1) month' (See Article 20(1) of the Act and Article 5(1) of the Enforcement Decree).

B. Present Situation Concerning the Identity Disclosure System

Disclosure of the identity has been made four(4) times as of the issuance of the decision in this case since the initial disclosure on August 30, 2001. The situation concerning the disclosure of identity by the type of the crime in the first through third disclosures is indicated in the table below:

On the other hand, in the fourth incident of disclosure on April 9, 2003, out of 1,221 convicted criminals subject to identity disclosure review, the identity of the aggregate number of 643 individuals, specifically 208 individuals convicted of rape, 200 individuals convicted of sexual offenses other than rape, 155 individuals convicted of acquiring sex with minors in exchange for money, 70 individuals convicted of arranging acquisition of sex with minors in exchange for money, and 10 individuals convicted of manufacturing obscene materials featuring minors was disclosed. In terms of the proportion of disclosure by the type of the crime, the identity of 89% of the criminals convicted of rape and other sexual offenses and everyone except for one(1) person convicted of arranging sexual purchase or manufacturing obscene materials was disclosed, whereas the identity of 22.7% of the criminals convicted of acquiring sex with minors in exchange for money was disclosed.

5. Opinion of Justices Yun Young-chul, Ha Kyung-chull, Kim Hyo-jong, and Kim Kyung-il

A. Legislative background and legislative purpose of the identity disclosure system

As a certain type of sexual crime against minors such as the prostitution between an adult and a minor and the manufacturing of obscene materials featuring minors became a serious social phenomenon around November of 1999, the legislature, in order to meet this social problem, referring to such systems publicly sharing the relevant information as the registration of convicted sexual offenders in the U.S. commonly known as Megan's Law, decided to introduce a system under which the identity of offenders having committed sexual crimes against minors would be disclosed. The legislature thereupon enacted the Juvenile Sex Protection Act on February 3, 2000 (effective July 1, 2000).

The Act intends to protect minors from sexual offenses, thereby protecting their human rights and helping them to grow up to be sound members of society (Article 1). The minor here is defined as a person under the age of nineteen(19). In order to achieve the above legislative purpose, the Act, in Article 20(1), provides that the Commission on Youth Protection should prepare a newsletter of statements and instructions for the prevention of crimes such as acquiring sexual favors from minors in exchange for monetary compensation; post such newsletter in the official gazette; post or distribute nationwide such newsletter in a method provided by presidential decree; and the identifying information including the name, age and vocation of the sexual offenders convicted of crimes such as purchasing sex from minors and the summary of their criminal conduct may be included in the above newsletter of statements and instructions and thereby disclosed subsequent to a final decision on sentence (the main provision of Article 20(2); hereby defined as the 'identity disclosure system').

The legislators chose to disclose the identity of certain sexual offenders convicted of such conduct as acquiring sex from minors in exchange for monetary compensation, upon judging that typical criminal sanctions such as the existing criminal punishment or preventive security measures were insufficient for the prevention of serious social diseases of adults' purchasing sex from minors under the age of nineteen(19), that guidance was necessary to prevent such new forms of crimes, and that, as the guidance, disclosing the identity of such convicted criminals would be an effective means to prevent the crime.

B. Constitutionality of Subdivision 1 of Article 20(2) of the Act

In this case, the issues include whether the identity disclosure system under the provision on review violates the principle of double jeopardy, whether the same excessively restricts the right to personality and other basic rights, and whether the same violates the principle of equality.

(1) Whether Subdivision 1 of Article 20(2) of the Act

violates the principle of double jeopardy

Article 13(1) of the Constitution provides that "no citizen ... shall ... be placed in double jeopardy," thereby prohibiting double jeopardy. This principle is a constitutional declaration of the 'double jeopardy' prohibiting prosecution or punishment for the second time of the same matter once a final judgment is entered, as a principle binding the state's authority of criminal punishment, intended to guarantee the basic rights, especially the freedom from bodily restraint, of the citizens. Here, the 'punishment' within the meaning of Article 13(1) of the Constitution is, in principle, the imposition of punishment as the exercise of the state's authority to punish crime, and does not include all of the sanctions or prejudicial dispositions by the state (6-1 KCCR 619, 627, 92Hun-Ba38, June 30, 1994).

Although the disclosure of identity is not listed in Article 41 of the Criminal Code that defines the types of punishment, such identity disclosure causes shame and indignity upon the relevant convicted individuals in addition to the final judgment of guilt. In reviewing whether or not such disfavor and prejudice is actually included in the scope of punishment on honor or reputation, the legislative purpose of the identity disclosure system, the information that is disclosed, and the relationship to the judgment of guilt should be taken into consideration.

As Article 20(1) of the Act expressly states that the primary purpose of the identity disclosure system is to "guide the public not to commit such crimes as purchasing sex from minors," the identity disclosure system was introduced as a means to prevent similar crimes. As such, although the identity disclosure system may cause shame and defame to the convicted individuals whose identity is disclosed, this is merely incidental to the legislative purpose sought by the identity disclosure system and is not at the center of the system. An examination of the actual situation concerning the disclosures made so far indicates that the disclosure was only partial information of the relevant individuals for the sake of guiding the general public not to commit crimes and was no more than a disclosure of some actual examples.

The identity factors and the criminal conduct disclosed under the identity disclosure system are part of the final judgment of guilt from a trial already made public pursuant to the main provision of Article 109 of the Constitution, and are not new factors concerning the identity or privacy of the individuals concerned. As discussed above, even though a feeling of shame is incidentally caused in the process of disclosure for the purpose of public interest, this cannot be deemed as the separate 'punishment of shame' or 'punishment of dishonor' in addition to the punishment sentenced upon the judgment of guilt.

Generally, legislators are vested with legislative discretion or the freedom to legislate when it comes to questions of which conduct should be defined as crimes and punished as such by which specific types of punishment, upon considering synthetically our history and culture, the situation, values and legal perceptions of the general public at the time of the legislation, the current situation and nature of the crime, the legal interests to be protected, and the effect of crime prevention (7-1 KCCR 478, 487, 91Hun-Ba11, April 20, 1995; 10-2 KCCR 701, 711-712, 97Hun-Ba67, November 26, 1998). Therefore, legislators are permitted to freely exercise the power to legislate by choosing a measure to prevent crimes in order to meet a specific social phenomenon. As far as the identity disclosure system cannot be understood as an unconstitutional institution that infringes upon human rights as discussed below, even if the disclosure of identity may accompany the feeling of shame and indignity on the part of the criminals, the identity disclosure system is not beyond the scope of the statutory formation that may be chosen to meet a new form of antisocial crime such as the crime of acquiring sex from minors under the age of nineteen(19) in exchange for monetary compensation.

For the reasons stated above, the identity disclosure system is not discernibly included in the definition of the punishment as an exercise of the state's authority to punish crime and is thus not violative of the principle of double jeopardy in Article 13 of the Constitution.

We may here refer to the decision of the United States Supreme Court that Megan's Law of the State of Alaska requiring the convicted sexual offenders to register with the competent authorities as to the identity and guilt among those factors made public by the final judgment of guilt (violation thereof is criminally punishable) and making such information publicly available on the Internet does not thereby impose a punishment of shame or dishonor.

(2) Whether Subdivision 1 of Article 20(2) of the Act

violates the principle of proportionality or the principle

against excessive restriction

(A) basic rights restricted

The first sentence of Article 10 of the Constitution provides that "all citizens shall be assured of human worth and dignity and have the right to pursue happiness." A general right to personality is derived from human worth protected by this provision (2 KCCR 306, 310, 89Hun-Ma82, September 10, 1990; 3 KCCR 518, 526-527, 89Hun-Ma165, September 16, 1991).

Further, Article 17 of the Constitution provides that the "privacy of no citizen shall be infringed."

The identity disclosure system restricts the general right to personality of the individuals concerned by disclosing to the public the identity of such individuals and the content of such crimes as purchasing sex from minors. The state unilaterally discloses the items belonging to the privacy of such individuals, through the identity disclosure system. Therefore, the identity disclosure system restricts the general right to personality and the right to privacy.

(B) content of the principle of proportionality or the principle

against excessive restriction

Such restriction upon privileges and rights shall not violate the principle of proportionality or the principle against excessive restriction under Article 37(2) of the Constitution, in terms of its purpose and its means.

The principle of proportionality or the principle against excessive restriction means a basic principle that should be observed in the state's legislative activity restricting the basic rights of the citizens or limiting the legislative activities. The principle of proportionality or the principle against excessive restriction is a constitutional principle which means that the legislative purpose of the statute restricting the basic rights of the citizens should be legitimate under the structure of the Constitution and statutes (legitimacy of the purpose), that the means to achieve such legislative purpose should be effective and appropriate (appropriateness of the means), that the restriction of the basic rights should be minimum in light of the necessity by considering any and all less restrictive forms or means of restriction, even if the restriction upon the basic rights chosen by legislators is appropriate for the achievement of the legislative purpose (least possible restriction), and that the public interest that is protected should outweigh the private interest restricted, upon balancing the public interest to be protected by the legislation against the private interest restricted by such legislation (balance between the legal interests) (See 2 KCCR 245, 260, 89Hun-Ka95, September 3, 1990).

(C) legitimacy of the legislative purpose

The legislative purpose of the identity disclosure system is to protect minors by alerting the general public of the sexual offenses against children or minors through disclosure of the identity and the criminal conduct of the convicted criminals concerned, thereby preventing similar crimes.

At the time of the legislation, the pervasiveness of the crime of acquiring sex from minors in exchange for monetary compensation and the increase of such crimes were very serious, and the moral hazard was also egregious due to the lack of consciousness as to the serious harm caused by the sexual offenses committed against minors to the development of the minors accompanied by the rapid development of the media such as the Internet. No improvement in the above situation was expected based solely on the morality of adults or minors and there was a demand for the prevention thereof through the sanction of law.

The conduct of acquiring sex from minors in exchange for monetary compensation does a significant harm to the sound development of the spirit and the body of the minors. Even if a minor technically consents to such conduct, such consent can hardly be found to be effective as a judgment of a minor may be less than competent and the minors are in a position to easily surrender to the lure of money. Such conduct egregiously deviates from the social rules and the legal order of the community thereby corrupting the fundamental morality of our society and harming traditional cultures developed and maintained by ancestors, as an expression of mammonism that money can do anything and minors can even offer sexual favors for money. It requires a serious concern, in a sense that our society might turn to a decadent society should we neglect such conduct without actively adopting countermeasures.

It can be inferred that legislators took the above legislative measures, facing the above phenomenon of social epidemic, in order to protect minors who were the future of the nation and to preserve the minimum morality concerning the sexual culture of our society.

As such, the legislative purpose of the provision on review is legitimate as necessary for the public welfare as provided in Article 37(2) of the Constitution.

(D) appropriateness of the means

Although there remains room for doubt as to whether the identity disclosure system is the most effective and appropriate means to achieve the above legislative purpose, common sense confirms that a disclosure to the public of the identity of the individual convicts concerned will have an impact on deterring or preventing the general adult population to not become a purchaser of sex from minors. Therefore, the identity disclosure system possesses the appropriateness of the means required by the principle of proportionality or the principle against excessive restriction.

Today the problem of sexual abuse of children including the purchase of sex is at the center of the concern all over the world and various countries adopt new legislative measures similar to the identity disclosure system. The United Nations Convention on the Right of the Child of 1989 provides for an obligation of the member states to protect the child from all forms of sexual exploitation and sexual abuse (Article 34). Also, the participating countries in the 'First World Congress Against Commercial Sexual Exploitation of Children' held in Stockholm, Sweden in 1996 declared that they would develop within five(5) years measures to decrease the number of the children falling victims to commercial sexual exploitation.

In the United States, convicted sexual offenders are required to register regularly with the competent authorities of the name, address, vocation and the content of the judgment of guilt and also to submit their pictures and fingerprints, which are posted on the Internet (specifically in the State of Alaska). Also, in Taiwan, the Act to Prevent Purchase of Sex from Children and Minors (as revised on November 8, 2000) provides that the competent authority, upon final judgment in a criminal trial, should post and announce the name and the picture of the convicted criminals and the summary of the judgment, when a person eighteen(18) years of age or older is engaged in a sexual intercourse or obscene conduct with a child (under the age of 12) or a minor (under the age of 18), or criminal conduct involving sex with a child or a minor as provided by the Act, in exchange for monetary compensation (Article 34).

The above examples of legislation reflect the fact that the existing criminal punishment or preventive security measures are not sufficient to achieve the legislative purpose of protecting the sexual integrity of children and minors. This is grounded upon the special nature of the crime of purchasing sex from minors and also of the victims thereof.

Although there is criticism that the current identity disclosure system does not deter crime as it does not provide concrete information of the convicted criminals such as the face or the picture and it does not screen off minors who are the objects of the purchase, the appropriateness of the means can be confirmed because the purpose of this system itself is the prevention of the crime of purchasing sex from minors at a more general level that the system intends to protect the sexual integrity of minors thereby protecting the human rights of minors and helping them grow to be sound members of society by guiding and correcting the harm and the serious problem concerning the conduct of purchasing sex from minors, rather than a concrete and specific one to provide information to protect the potential victims and the community from the released sexual offenders such as in the so-called Megan's Law, and, also because the identity disclosure system has an impact upon the general public to suppress the impulse to commit sexual offenses against minors.

(E) least restrictive means

In reviewing the question of whether the means adopted is the least restrictive, it should be noted that the identity disclosure system is based upon the extremely important legislative purpose of protecting the sexual integrity of minors that is seriously being dilapidated in our society.

Specifically, we examine whether there exists any means alternative to the identity disclosure system that is clearly less restrictive in effectively achieving the significant legislative purpose of protecting the sexual integrity of minors.

As indicated above, the criminal punishment or preventive security measures are not sufficient to achieve the legislative purpose; for the possible policies of curing the sexual offenders having committed crimes against minors and establishing effective systems of vigilance and guiding minors, the material and human resources such as the experts in correction geared to the offenders having committed sexual crimes against minors are lacking; it takes much time and effort to more fundamentally and widely improve the aspects of social culture including the excessively liberal position of minors toward sex, the mammonist attitude of minors, wrongful tendency toward consumption regarding sex as a commodity, and the distorted conception of sex held by the adult population. Therefore, it cannot be discernibly concluded that a legislative measure such as the identity disclosure system is unnecessary to prevent currently increasing sexual crimes committed to minors.

Also, assuming a system under which a list of convicted sexual offenders is registered with the administrative authority or the police authority and the information is released upon request of a resident, detailed information as to the convicted criminals concerned must be made available in order to achieve effectiveness of such system, which may in turn demand such means of disclosure as the newspaper or the broadcast that is more easily accessible than the official gazette or the Internet. This system is not necessarily clearly less intrusive than the current system.

In addition, such mechanisms to minimize the prejudice on the part of the individuals whose identity is disclosed are readily available as the requirement of Article 20(3) of the Act that there should be no unjust infringement upon the human rights of the convicted criminal or his or her family by considering the age of the convicted criminal and the minor concerned and the motive, means, and outcome of the crime in determining the disclosure of identity, and as the provision of the opportunity to be heard under the inferior provisions, as stated below, for the convicted criminal whose identity is determined to be disclosed.

Therefore, the identity disclosure system does not excessively restrict the basic rights of the convicted criminals concerned notwithstanding alternative less restrictive legislative means and the choice among various possible legislative means where it is not known which one is less intrusive falls within the authority of legislators to decide. Thus, the identity disclosure system does not violate the principle of the minimum restriction.

(F) balance between legal interests concerned

Purchase of sex from minors by adult is, as previously stated, rapidly increasing. Such criminal conduct may do serious harm to the development of the spirit, body and socialization of the minor that cannot be cured throughout the life of the minor.

The identity disclosure system is not to punish the individual criminals. Instead, it was adopted to raise the awareness to protect the social community against the existing danger of sexual violence, and to deter the general population from the impulse to commit such crimes as purchasing sex from minors. As such, the purpose of the 'protection of the sexual integrity of minors' intended by the identity disclosure system is one of the most important public interests in our society.

Considering, in comparison, the degree of restriction upon the general right to personality and the right to privacy of the purchaser of sex from minors, Article 20(2) of the Act provides for the public disclosure of the "identity including the name, age, and vocation and the summary of the criminal conduct," which is therefore a disclosure by the state for the sake of the public interest of part of the content of the court's decision to convict in a public criminal litigation, which is a public record. Therefore, it may not be discernibly concluded that knowledge of the general public of the identity and the criminal record of the convicted criminals already made public in the criminal litigation infringes upon the right to personality or privacy of such convicted criminals.

In addition, a further restriction upon basic rights concerned of the convicted criminals whose identity and criminal conduct are disclosed than the general public is readily tolerable by the state's exercise of the authority to punish crimes. Even if the offenders convicted for acquiring sexual favors from minors in exchange for monetary compensation feel ashamed and are defamed by the disclosure of their identity and criminal conducts, the degree of protection therefor is duly different from that for the general public, therefore there is room for a further restriction upon such convicted offenders' right to personality and privacy as long as the restriction is not upon the essential part of such rights.

Therefore, as the degree of restriction upon the right to personality and privacy of the purchasers of sex from minors is not greater than the request of public interest to protect the sexual integrity of minors, the disclosure of the identity under Subdivision 1 of Article 20(2) does not violate the principle of balance between the legal interests concerned.

(G) sub-conclusion

The identity disclosure system under Subdivision 1 of Article 20(2) of the Act does not infringe upon the right to personality and privacy of the convicted criminals concerned in violation of the principle of proportionality or the principle against excessive restriction under Article 37(2) of the Constitution.

(3) Whether Subdivision 1 of Article 20(2) of the Act violates

the principle of equality

The issues include that of whether the provision on review violates the principle of equality in that the individuals convicted of other general crimes against minors including murder, kidnapping, or illegal solicitation of minors are not subject to disclosure of identity whereas the illegality of such criminal conduct may be more egregious than that of the category of sexual offenses subject to identity disclosure, and also in that the individuals convicted of a certain group of sexual offenses such as providing the location for purchase of sex from minors or acting as an intermediary in such sexual purchase, as opposed to other sexual offenses against minors under the statute, are not subject to the disclosure of identity.

The meaning and the purpose of the legal provision listing the sexual offenses against minors that are subject to the disclosure of the identity of the convicted offenders is to protect the minors from harm that may be caused by such conduct as the adults' purchase of the sexual favors from minors in exchange for money. In light of the above, the sexual offenses against minors and the other general crimes are not discernibly 'essentially identical' to constitute two object groups under comparison. Further, there is no ground to deem such standard for distinction to be particularly arbitrary.

Furthermore, in the case of such sexual offenses against minors that are not subject to the disclosure of the identity of the offenders as inducing and soliciting minors to engage in the purchase of sex in exchange for monetary compensation (Article 6(4) of the Act); inducing, soliciting, or coercing minors to engage in sex in exchange for monetary compensation as a profession (Subdivision 1 of Article 7(2) of the Act); and providing a location for the sexual purchase of minors or acting as an intermediary for such purchase (Subdivisions 2 and 3 of Article 7(2) of the Act), such punishable conducts are of the nature of complicity for the purchase of sex from minors in exchange for money in terms of the object of the conduct or the type of the conduct. As such, the distinction deems to have arisen out of the consideration of the difference in illegality of the conduct. Therefore, even though certain convicted sexual offenders who committed crimes against minors are not subject to the disclosure of identity, the legislation reflecting such distinction cannot be discernibly deemed to be arbitrary or unreasonable.

Even if the identity disclosure system may cause a different treatment in terms of the restrictions upon the basic rights, there is more room for the restriction upon the basic rights for the criminals convicted of the purchase of sex from minors than that for the non-criminally convicted group of individuals, the information disclosed has already been made public in the criminal litigation, the provision on review has not been enacted with the intent to prejudice particularly those convicted of purchasing sex from minors as opposed to other crimes, and the discrimination here is merely incidental and indirect one that has incurred in the process of legislating the guiding measures to prevent such sexual offense.

Therefore, the different treatment brought by the identity disclosure system under Article 20(2) of the Act is not disproportionate in terms of the relationship between the legislative purpose and the means to achieve such purpose, and it cannot be deemed to otherwise violate the principle of equality under Article 11(1) of the Constitution or the right to equality.

(4) Whether Subdivision 1 of Article 20(2) of the Act violates

the right to trial by judge

Article 27(1) of the Constitution provides that "all citizens shall have the right to be tried in conformity with the statute by judges qualified under the Constitution and the statute." This provision is interpreted to guarantee a right not to be tried in civil, administrative, election or domestic proceedings, or punished in any form if not by a judge (10-1 KCCR 610, 618, 96Hun-Ba4, May 28, 1998).

Although the requesting court argues that the identity disclosure system infringes upon the right to trial by judge as it is implemented by the Commission on Youth Protection, the identity disclosure system is not 'punishment' as discussed above. Therefore, the identity disclosure system does not infringe upon the right to trial by judge.

(5) Whether Subdivision 1 of Article 20(2) of the Act violates

the doctrine of due process

Now we review the issue of whether the identity disclosure system violates the doctrine of procedural due process (we omit the discussion with respect to the issue concerning the substantive due process as it is in this case identical to the discussion and the conclusion with respect to the principle of proportionality).

Article 20(3) of the Act provides that the Commission on Youth Protection should, in determining the disclosure of identity, take into account the motive of the crime, the circumstances subsequent to the crime, and other factors. Article 20(4) of the Act provides that necessary matters concerning specific procedures of disclosure be determined and regulated by presidential decree. The inferior provisions, pursuant to the above legal provisions, provide convicted sex offenders whose identity is determined to be disclosed with an opportunity to state an opinion in writing by designating a time period of ten(10) days or longer (Article 9(3) of the Operative Bylaw), subject to an irrebuttable presumption that such person does not hold an opinion should no opinion be stated within such period, while the disclosure of identity is determined upon review should an opinion be stated (Article 9(4) of the Operative Bylaw).

The Commission on Youth Protection is an institution with some extent of independence and neutrality (See Articles 29 and 32, and other relevant provisions, of the Youth Protection Act. There is a guaranteed opportunity to dispute the legality of the Commission on Youth Protection's decision to disclose identity by way of an administrative litigation. Also, any decision to disclose identity is made subsequent to the sentence upon conviction of a crime through a trial by judge.

Therefore, as the disclosure of identity under Subdivision 1 of Article 20(2) of the Act is performed pursuant to the formal procedure provided by law and as the content of such procedure is also reasonable and justifiable, the above provision does not violate the principle of procedural due process.

C. Constitutionality of Article 20(5)

Article 20(5) of the Act delegates those necessary matters con-

cerning the concrete time, duration, and procedure with respect to the posting of the guiding statement and so forth pursuant to Articles 20(1) and 20(2) of the Act to be determined and regulated by presidential decree. In this case, the issues include that of whether the above delegation provision is a blanket delegation prohibited by Article 75 of the Constitution.

Article 75 of the Constitution provides that "the president may issue presidential decrees concerning matters delegated to him or her by statute with the scope specifically defined and also matters necessary to enforce the statute," thereby serving as the ground for legislation delegating law-making authorities, and at the same time indicating the scope and the limit of the delegation by legislation by limiting the matters to be regulated by the presidential decree to the matters delegated by the statute with a scope that is specifically defined.

The Constitutional Court held that the 'matters delegated by statute with the scope that is specifically defined' mean that the general content to be regulated by presidential decree should be predictable to everyone from the delegating legislation itself as the basic elements of the content and the scope to be regulated by presidential decree are concretely and clearly stated in the delegating legislation (7-2 KCCR 562, 591, 91Hun-Ba1, etc., November 30, 1995; 11-1 KCCR 1, 8, 97Hun-Ka8, January 28, 1999). Also, the Constitutional Court held that the predictability should be reviewed not based solely on a specific provision but instead in a relational and synthetical context of the relevant provisions in the entirety, and that the predictability should also be reviewed concretely and on a case-by-case basis according to the nature of the respective statutes under review (12-2 KCCR 233, 241, 99Hun-Ba104, August 31, 2000).

In this case, the "concrete time, duration, procedure, and other matters" delegated pursuant to Article 20(5) of the Act are not essential components but incidental components of the identity disclosure system, because the core components of the identity disclosure system are provided in the statute as the identity disclosure system itself is provided in the statute and the scope of the disclosure is also expressly stated in detail in the main provision of Article 20(2) of the Act. Where certain information with respect to the identity of the convicted criminals and other related information is readily and invariably made available to the public, even if Article 20(5) of the Act delegates the matters of when, how long, and under which procedure the identity information is to be disclosed to the presidential decree, this question is merely incidental to the restriction upon the right to personality or privacy of the convicted criminals.

Furthermore, as the matters delegated to the presidential decree here are "such matters additionally necessary to the disclosure of the identity including the concrete time, duration, and procedure," such delegation is a delegation "with a scope specifically defined." In addition, the "time" of disclosure to be provided by the presidential decree is anticipated to be a point closer to the date of the conviction and final decision of the court to a certain time at the interval of twice or more per year considering Article 20(1) (requiring that a "statement of guidance be prepared more than twice per year"), the "duration" of disclosure is anticipated to be normally for a period of six(6) months or shorter as a reasonable time period for the achievement of the legislative purpose considering that the above provision sets forth the frequency of "more than twice per year," the general content of the "procedure" is predictable considering various relevant provisions of the Act such as Article 20(3) of the Act, and "other matters" are to a certain degree anticipated to be such other matters necessary to the disclosure of the identity to be regulated by presidential decree similar to the time, duration, and procedure of the disclosure. Therefore, the general content delegated to be provided and regulated by presidential decree under the Act is reasonably pre-

dictable.

For the reasons stated above, Article 20(5) of the Act is not against the principle of the prohibition against blanket delegation.

D. Conclusion

Subdivision 1 of Article 20(2) of the Act and Article 20(5) of the Act are constitutional.

6. Opinion of Justices Han Dae-hyun, Kim Young-il, Kwon Seong, Song In-jun, and Choo Sun-hoe

A. Unconstitutionality of Subdivision 1 of Article 20(2) of the Act

(1) Infringement of the Right to Personality

(A) basic rights restricted by the disclosure of identity

Article 10 of the Constitution declares that all citizens shall be assured of human worth and dignity and have the right to pursue happiness, and underscores that the state is obligated to confirm and guarantee the basic and inviolable human rights of individuals. Therefore, every person is entitled to develop one's own life pursuant to one's own free will and freely express one's own personality, in pursuit of happiness. Such rights are endowed regardless of the individuals' physical conditions, talents, education, wealth, or gender by birth, and the fundamental human worth and dignity as a human being is respected and guaranteed even for a convicted criminal. This is indeed the utmost value and the basic ideal pursued by our Constitution.

When the state inconsiderately discloses information that significantly affects the reputation of an individual in the society including the criminal conviction, no overall personality is described including the positive aspects of the individual, but, instead, solely negative aspects of such individual are saliently emphasized towards the outer world thereby possibly hindering such individual's free expression and realization of personality in the future through contact and interaction with society. Therefore, in order for free expression and realization of personality of an individual through social activities, it is crucial to guarantee a right for the individual to determine as to various materials containing information that can be an important factor in forming the image of such individual in the eyes of others, that is, a right of self-determination upon social personality factors. The state is obligated to maximally guarantee such right.

The identity disclosure system in this case discloses to the public certain defects of an individual that the individual would wish to hide, thereby conspicuously restricting the right of self-determination upon social personality factors described above. As such, the identity disclosure system in this case significantly infringes upon the right to personality of individuals convicted of a crime.

(B) uncertainty of the legislative purpose

The purpose of disclosing the identity of those convicted of purchasing sex from minors is to 'protect the minors by preventing the act of purchasing sex.' However, with respect to a more concrete purpose of the system, there are numerous opinions such as alerting the public of the significance of the crime of purchasing sex, aiming for punishment and deterrence through the disclosure of the identity of those convicted of purchasing sex from minors, or providing information for potential victims in advance to prevent sexual offenses. A general perception that the identity disclosure system in this case was borne out of and serves all of the above legislative purposes notwithstanding, such unclear legislative purpose is the very reason for a fundamental problem of the operation of the identity disclosure system in a way that is inappropriate for any of the above perceptible legislative purposes.

(C) violation of the principle of proportionality or the prohibition against excessive restriction

1) First of all, in order to simply raise the awareness of the public for guidance purposes, a disclosure of the identity of the purchaser of sex is by no means mandated. Even if the explanation of examples may help increase the effect of crime prevention, such purpose of crime prevention for the awareness of the significance of sexual purchase can sufficiently be reached even when the anonymity of the individuals concerned is guaranteed by the use of a pseudonym instead of an actual name. Therefore, from this perspective, the disclosure of identity unnecessarily restricts the basic right and is therefore excessive.

2) Next, should the protection of the potential victims through providing the information be intended, the identity disclosure system in this case can hardly overcome the criticism that this system barely has any effect of such since it provides insufficient information. Because the information disclosed is limited to the name, age, birthdate, vocation, address (no more detailed than Shi/Kun/Ku), and the summary of the crime, potential victims in general can hardly identify the individuals whose identity is being disclosed solely based on the information disclosed. Furthermore, as the vocation and the address among the information disclosed are based on those stated in the final judgment of conviction, should the vocation or the address change afterwards, incorrect information is provided under the current system.

Also, disclosing the information invariably for not longer than six(6) months biennially around the time of the sentencing in each case

does not even remotely serve the purpose of protecting potential victims from the danger of recidivism. Whereas the above measure significantly and immediately hinders the normal social life of an individual concerned through the disclosure of identity when an individual is sentenced to a relatively light punishment (such as a fine or probation) and there is only a low possibility of recidivism where the information provided is not imperative, on the other hand, when an individual is sentenced to a long prison term for several years due to the high possibility of recidivism, the identity of such convicted criminal is disclosed under the above measure only during the prison term when the provision of information is meaningless, and when the provision of information becomes meaningful following the release from the prison, no information will be provided thereby neglecting the purpose of protecting potential victims.

Therefore, from this perspective, the current identity disclosure system lacks effectiveness, and the appropriateness of the means can thus hardly be found.

3) On the other hand, in our society where relational social esteem matters significantly, the institutional measure to disclose to the public the identity of an offender along with the fact of the crime does have, in reality, a considerable effect as a sanction and as a deterrent. If the primary purpose and function of the current identity disclosure system lies in having the offender lose face and deterring the general public by announcing that a 'purchaser of sex from minors will likewise lose face,' it then shares a notably similar characteristic to that of the punishment of indignity to the extent that it may be compared to a 'modern-day Scarlet Letter.'

However, the punishment of indignity bears fundamentally significant problems in its basic structure in publicly lowering the social esteem of a convicted criminal thereby inciting abhorrence against such criminal among the public and placing such criminal in the public's contempt and social exclusion. That is, the punishment of indignity has a defect that its degree of punishment significantly varies depending upon the subjective feeling of reputation of individual criminals or their social relationships, or the scope and the intensity of the expression of hate from the public toward the criminals. Also, this type of punishment neglects the principle of the rule of law, and might promote uncontrolled revenge or self-policing conduct. Most of all, the most fundamental defect of this type of punishment lies in the confusion between the anti-value of the criminal conduct and the non-existence of the personality of an individual convicted of a crime. Regarding a convicted criminal, despite the criminal conduct, as an individual who has a unique personality with moral capability to assume responsibility marks both the basic premise and the ultimate limit in exercising the authority to punish crime. Furthermore, what should truly be severed in a society is, in its strict meaning, not the individuals convicted of crime, but the criminal conduct. However, a punishment of indignity takes on the strong intention eventually to socially bury the individuals convicted of crime by treating such individuals as a means to fight against crime and not as humans with personality and by subjecting such individuals to public ridicule or scorn. This will not stop at the devastation of the personality of the individuals convicted of crime, but may even create a lack of sensitivity towards human dignity throughout the entire society.

Thus, although the punishment of indignity was widely adopted in Europe and beyond until the early nineteenth century, it subsequently changed into punishment concerning the status (such as suspension or disqualification of capacity). Taking the basic structure of the punishment of indignity that already disappeared in the developmental history of modern criminal justice systems by institutionalizing disclosure of the identity of the purchaser of sex goes against the modern practice and might revitalize almost exactly the same problems of the punishment of indignity.

The current identity disclosure system takes the nature of treating those subject to identity disclosure as mere means to fight crime by making use of them in a public exhibition, rather than respects those individuals as the holders of unique personalities. The individuals subject to identity disclosure might be deprived overnight of the social position and environment they built for a long time, beginning from the scorn from the acquaintances to a forced change of work place or residence, to a disrupture of a family including divorce. Furthermore, identity disclosure might, as a result, subject the innocent family members altogether to mental anguish or deprive them of the platform upon which their life has been built. Considering the above, the identity disclosure system sufficiently poses a question as to whether the state defines the individual criminals as well as the mere criminal conducts as evil and treats such individuals as objects to be eliminated from society. This is undeniably facially against the principle of our Constitution declaring that it is the obligation of the state to guarantee the fundamental dignity and value of every person as a human being even for an individual convicted of a crime.

4) There is a strong argument in our society as well that identity disclosure is indeed an effective countermeasure to correct the evil tradition of adults' acquiring sex from minors in exchange for money and that it is inevitable to adopt such a drastic medicine. Of course, such argument has certain truth that cannot be ignored. However, the widespread conduct of adults' acquiring sex from minors in exchange for money can be explained as a phenomenon of disease based on the combination of the distorted perception toward sex or lack of control over sexual impulse on the part of the adult population, the excessively liberal perception toward sex and mammonist behavior on the part of minors, male-chauvinistic perceptions considering the female gender as an object of oppression, and excessive consumercapitalism regarding purchasing sex from teenagers as a commercial commodity. Therefore, a fundamental cure for such epidemic can only be made possible through a multilateral approach toward each of the elements causing the disease. Specifically, it seems to be more desirable to focus on the fundamental preventive measures, as it is readily possible to synthetically utilize various means, instead of monolithic sanctioning of punishment or identity disclosure, such as medical treatment or effective vigilance to sexual offenders, guidance of minors, and implementation of policies to improve the environment harmful to minors, and also in light of the reality that the ratio of the discovered cases out of the entire number of cases of purchase of sex from minors is minimal. Relying on such an abnormal method as identity disclosure by the state that might significantly infringe upon the right to personality of the individuals even before the state makes exhaustive efforts through the above preventive measures is problematic even from the perspective of the minimum restriction.

5) On yet another hand, disclosure of identity requires none of the new elements of conduct in addition to the criminal conducts already punished in a criminal procedure and, as such, it imposes additional sanctions for the same criminal conduct. Furthermore, unlike general administrative sanctions, the identity disclosure system does not intend to secure the performance of the administrative obligation, but instead directly intends to prevent the crime itself. The system's purpose is pursued primarily through the effect of sanction or deterrence than guidance or provision of information. Thus, disclosure of identity and the criminal punishment shares considerably overlapping purposes and functions.

However, it is hard to predict how much of further deterring effect the identity disclosure subsequent to criminal punishment may bring. Not only is there a criminal-psychological analysis that identity disclosure lacks either general or special preventive effect and might instead force the individual criminals to an even more destructive behavior, but also there is no sign that has yet been detected telling that the rate of sexual crimes has reduced despite the disclosures of identity on four separate occasions. In addition, in the immediately preceding fourth disclosure, four individuals who were previously on the list in the second or third disclosure were once again included, which manifestly indicates that it is doubtful that the current identity disclosure system has any effect of deterring crime.

Criminal punishment is assessed and understood to be the very last means ("ultima ratio") of the state-imposed sanction, as it significantly invades the freedom and the safety of individuals. Disclosing the identity of individuals convicted of crime that may be even severer than the criminal punishment itself where such criminal punishment has already been imposed, while such disclosure of identity serves neither a purpose nor a function distinct from that of the criminal punishment, is an excessive abuse of the state power. Furthermore, the effect of deterring crimes of the identity disclosure is too weak or uncertain against the significant infringement upon the basic rights of the individuals whose identity is disclosed, therefore, also in this regard, the current identity disclosure system conspicuously lacks the balance between the legal interests concerned.

6) The supporters of the identity disclosure system argue that the recent decisions of the United States Supreme Court holding the socalled Megan's Law [주1] constitutional [주2] should be brought to our attention. However, Megan's Law and our identity disclosure system are conspicuously different in the specific legislative directions and contents, [주3] and, further, such decisions of the United States Supreme Court entertained solely the issues concerning Ex Post Facto Clause

and the Procedural Due Process Clause. [주4] Therefore, the above decisions of the United States Supreme Court may not be referred to in determining the issues of whether our identity disclosure system violates the principle of proportionality or prohibition against excessive restriction or the principle of equality.

7) On the other hand, the so-called Sarah's Law of the United Kingdom may be exemplary with respect to the issue of how we can reconcile and adjust between the safety of the public and the right to personality of convicted criminals.

The Sex Offender Act of 1997 enacted by the Diet in 1997 did not include a general notice provision, but it instead contained a provision under which the police were allowed to notify schools or other specific individuals of the information concerning the offenders having committed sexual crimes against the children residing in the community under exceptional circumstances. Pursuant to the practice guide of the Ministry of Internal Affairs of the United Kingdom on this point, the police could disclose the information solely when there were exceptional circumstances upon specific case-by-case judgment as to the danger of the crime. However, in July of 2000, an eight-year-old girl named Sarah Payne was discovered sixteen days after disappearance, sexually offended and murdered. The citizens of the United Kingdom urged that the United Kingdom Diet introduce a general notice system such as the one under Megan's Law, calling for a stricter measure to be adopted. However, despite the boiling public opinions, the United Kingdom Diet did not adopt a general notice system, when the Diet revised the Sex Offender Act toward the end of the year 2000. This revised Act dubbed 'Sarah's Law,' instead, provided that solely the number of convicted sex offenders for each district should be disclosed to the public. This was to avoid subjecting sex offenders to social persecution through the disclosure of identity on one hand, and, on the other hand, to put the general public on notice of the danger of sexual offenses in the particular community. That is, the United Kingdom Diet, upon a thorough reflection considering the general notice system, concluded to uniquely and harmoniously compromise the interest of protecting the children and the interest of rehabilitating the convicted sexual offenders for their normal return to the society, without being easily swayed by the voice of the potential voters.

Such legislative example of the United Kingdom suggests much toward us as it forms a stark comparison against our current identity disclosure system under which the right to personality and a normal return to the society of the convicted criminals is neglected in a nationwide general and invariable disclosure of such individuals' identity under the vague justification of raising the public consciousness and restoring the public morals, without any individual or specific review over the danger of crime.

(D) sub-conclusion

No one may say that the conduct of acquiring sex from minors in return for monetary compensation is an unjustifiable sexual exploitation sickening the body and the soul of the growing children that leaves an incurable aftereffect in their life, and that such conduct is a crime that destructs the sexual morals and darkens the future of the nation also from the perspective of the state as a whole. However, this does not justify any and all restrictions upon the basic rights of the purchasers of the sex from minors.

The current identity disclosure system is beyond the purpose of pure guidance to raise the consciousness of the significance of the sexual crimes involving minors as victims, nor is it a means to fight against the actual danger of recidivism posed by individuals who are subject to the disclosure of identity in light of the standard applicable in selecting individuals subject to disclosure, or the timing, duration, and scope of the disclosure. Rather, the current identity disclosure system focuses solely on maximizing the effect of punishment and deterrence by adopting an extremely abnormal and inflammatory method of exposing an individual's defects to the general public directly and actively by the state.

However, evidence to support the effectiveness of the current identity disclosure system in actually deterring or preventing crime is nowhere to be found. On the other hand, the disclosure of identity causes the harm of sentencing a 'social death penalty' once again onto the same individual who has already paid the deserving price for the previously committed crime through serving criminal punishment. This is in excess of the limit of the last measure permitted for the state power, and the content thereof is cruel and severe beyond the extent permissible in any modern civilized nation.

From the above stated positions, disclosure of the identity of purchasers of sex from minors excessively intrudes upon the right to personality of the individuals whose identity is subject to disclosure, as it can hardly be deemed to meet the requirements of the justifiable specific legislative purpose, the appropriateness of the means, the minimum of harm, or the balance between the legal interests concerned.

(2) Violation of the Principle of Equality

(A) question under review

Subdivision 1 of Article 20(2) of the Act restricts the right to self-determination upon the social personality factors of those convicted of purchasing sex from minors, on the ground of prevention of crime. The same provision does not permit the above restriction through the disclosure of identity with respect to the convicted criminals in general or certain group of sexual offenders against the minors (hereinafter referred to as the 'other general criminals'). However, crime prevention is similarly required in the case of the other general criminals as well. Therefore, it requires a constitutional explanation whether or not dis-

crimination between these two can be justified.

(B) standard of review

Where the Constitution specifically indicates the standard that may not serve as the ground for a differential treatment or the area where a differential treatment is prohibited, or when a differential treatment is to cause a significant restriction upon the basic rights concerned, it is the established position of the Constitutional Court that the standard of review here is that, under the principle of proportionality, a proper balance between the ground and the content of the differential treatment should be met, beyond a mere confirmation of the existence of a reasonable ground for such differential treatment (See 11-2 KCCR 770, 787, 98Hun-Ma363, December 23, 1999, etc.).

In this case, none of the constitutionally prohibited standard or area of differential treatment is applicable. However, disclosing the fact of the crime along with the actual name of the individuals convicted of a crime and sentenced to a criminal punishment to the general public is an example of a significant restriction upon the right to personality in the sense that this might conspicuously hinder such individual's free expression and realization of personality by negatively affecting the social personality factors of the individuals subject to identity disclosure. Furthermore, when individuals convicted of a specific group of crimes and not all the crimes are subject to disclosure of identity, such individuals are branded in the perception of the general public as those who are more dangerous or despicable than other convicted criminals, and the effect of social stigma thereby increases to the same extent. Consequentially, a selective disclosure of identity has the meaning of singling out those individuals subject to it as the particular targets of social rejection. Then, in this case, as a discriminatory treatment is causing a significant restriction upon the basic rights concerned, a standard of review under the above principle of proportionality should apply.

(C) review of the provision on review

Reviewing this case on this premise, it is questionable to begin with whether a reasonable ground for different treatment exists, on the following points:

First, the crime of purchasing sex from minors is not necessarily more egregious than other crimes in the nature of the crime or in the maximum permissible sentence. An example is that the nature of the crime and the maximum permissible sentence for the crime of murdering a minor or burglary by holding a minor hostage is more serious than those of purchase of sex from the minors, but convicted committers of such crimes are not subject to the disclosure of identity.

Next, as the crime of purchasing sex from minors requires the consent to sexual transactions by the minors who are the other parties to the sexual transaction as an essential element of a crime, it hardly bears a violent nature or there is hardly any danger that a random person unexpectedly becomes a victim. Also, the danger of recidivism may not be a justifiable ground for disclosing the identity of the purchasers of sex from minors, as repeat offenders convicted of battery, burglary, or theft with higher recidivism rates are not subject to the disclosure of identity.

Finally, the special nature of the legal interest of the 'protection of the sexual integrity of minors' does not serve as a crucial standard in determining the disclosure of identity of offenders. Although a severer legally maximum sentence is presupposed, compared with the crime of purchasing sex from minors, for the crimes of inducing or inviting minors to be the other parties to the sexual transactions (Article 6(4) of the Act), inducing, soliciting, or coercing minors to be the other parties to the sexual transactions by vocation (Subdivision 1 of Article 7(2) of the Act), or providing the location or serving as an intermediary for the purchase of sex from minors (Subdivisions 2 and 3 of Article 7(2) of the Act), each of which is a crime of invoking or promoting the sale and purchase of sex from minors thereby more seriously intruding upon the above legal interest, the offenders in the above crimes are not subject to the disclosure of identity.

Then, there is hardly any reasonable ground to treat the purchasers of sex from minors differently from the other general criminals, and the sole ground for a different treatment may be the legislative intent to convey the message that warns adult male population against the conduct of purchasing sex from the minors.

However, such legislative intent is not of the nature or significance sufficient to justify the disclosure of the identity of convicted purchasers of sex from minors, as previously discussed in reviewing the intrusion upon the right to personality. Whereas disclosure of identity strongly violates the spirit of the Constitution guaranteeing human dignity and encompasses a serious side effect of excessively hindering the normal return of once criminally punished individuals to society, on the other hand, it lacks effectiveness in deterring or preventing the crime. Therefore, the current identity disclosure system is an excessive means to achieve the legislative intent stated above.

(D) sub-conclusion

Therefore, there is no proper balance between the ground and the content of a discriminatory treatment in discriminately disclosing the identity of the purchasers of sex from minors unlike those convicted of other crimes. The current identity disclosure system thus violates the principle of equality.

B. Unconstitutionality of Article 20(5) of the Act

(1) Question Under Review

Article 20(5) of the Act delegates all of the matters concerning the specific time, duration, and procedure of disclosure of identity to be provided and regulated by presidential decree. With respect to this provision, the issue is whether such delegation can be justified under the Constitution.

(2) Limit of the Statutory Delegation

Article 75 of the Constitution provides that the "president may issue presidential decrees concerning matters delegated by statute with the scope specifically defined," thereby expressly stating, at the same time, the ground for and the limits of the statutory delegation. That is, in light of the purpose of the above provision seeking to realize the principle of legislation by the legislature and the rule of law, the phrase of the 'scope specifically defined' is interpreted to mean that the statute must specifically and clearly provide the basic matters so that everyone can predict the general content of the matters to be provided and regulated by a presidential decree from the delegating statute itself. The degree of the specificity and the clarity requested from the delegating statute may vary according to the type or the nature of the matters being delegated, however, especially when the statute possibly concerns a direct restriction of or infringement upon the basic rights of the citizens, a higher degree of specificity and clarity is required (12-1 KCCR 16, 36-37, 96Hun-Ba95, etc., January 27, 2000).

(3) Review of Unconstitutionality of Article 20(5) of the Act

(A) In the identity disclosure system, the time, duration, and procedure of the disclosure have a meaning more than as a merely incidental matter.

First, with respect to the 'time' of the disclosure, the issue is whether the identity of offenders should be disclosed immediately after a final judgment of sentence or not until the time an individual offender is released after completing the sentence as under Megan's Law of the United States. This is a greatly important matter that may define the overall nature of the identity disclosure system, as it concerns the question of whether to focus on the guidance or deterrence or on providing the information necessary for the self-defense of the potential victims in disclosing the identity of offenders.

In addition, the identity disclosure has a characteristic that once it is performed, any damage incurred thereby may hardly be cured. An immediate disclosure after the determination of the individual offenders subject to disclosure before the time period for requesting an administrative trial or filing an administrative litigation is expired would practically deprive an opportunity for any substantive relief of the individuals subject to the determination of identity disclosure. As such, the question of how much later from the determination of the individual offenders subjected to the identity disclosure the actual disclosure should be done is also an important issue concerning the time of the disclosure of identity.

Next, the 'duration' of disclosure is also a matter essential to the identity disclosure system. The essential nature of the identity disclosure system is that it makes the information that may negatively affect the social personality factors of an individual 'easily accessible by anyone.' This ease of access to the information itself exposes the individuals subject to the disclosure to the danger of psychologically daunting such individuals or subjecting such individuals to an unpredictable social persecution. As the core nature of the identity disclosure system likewise lies in the ease of the access to the information by the general public, the question of in which manner and for how long the disclosure is conducted is undeniably an important element determining the effect of the identity disclosure, as it significantly affects the ease of accessing information.

Finally, the 'procedure and other matters' of Article 20(5) of the Act seem to encompass the entire process through the actual disclosure of identity. That is, this includes all of the matters concerning how to collect the materials necessary for identity disclosure, which institution under which standards should review such materials, whether to provide an opportunity to be heard for the individuals concerned in the process of determining the individuals whose identity is to be disclosed or, if so, in which method to provide such opportunity to be heard. Such matters also constitute an important content of the identity disclosure system. It is because such questions as whether the standard applicable in determining the individuals to be subjected to the disclosure of identity should focus on the specific danger of recidivism or on the degree of the nature of the crime, how to secure neutrality and expertise in forming a review institution, and how to reflect the opinion of the individuals concerned in the determining procedure in case there is an expression of opinion by an individual being subjected to the disclosure have an intimate relationship to a general operative direction and securing the fairness of the identity disclosure system.

(B) As such, the time, duration, procedure, and other matters of the disclosure of identity constitute the essential content determining the general characteristics and the directions of operation of the identity disclosure system, and also are important matters directly affecting the basic rights of the individuals subject to the identity disclosure. Also, concerning the above matters, the subject matter of the regulation is not of a nature that is extremely varied or constantly changing, therefore there is a demand for a stricter specificity and clarity of delegation. Article 20(5) of the Act delegates the entirety of the matters concerning the time, duration, procedure, and others to be provided and regulated by presidential decree without specifically defining the basic content or scope concerning such matters. Therefore, it is impossible to perceive the general content of the matters concerning the specific time, duration, and procedure of the disclosure of identity from the statute itself without having to refer to inferior legal provisions.

(4) Sub-conclusion

Therefore, the provision on review is a statutory provision of blanket delegation, and, as such, is beyond the legitimate scope of legislative delegation permissible under the Constitution.

C. Conclusion

As reviewed above, Subdivision 1 of Article 20(2) of the Act is unconstitutional as it excessively infringes upon the right to personality of the individuals subject to disclosure of identity and violates the principle of equality as it prejudicially discriminates against those convicted of purchasing sex from minors compared with those convicted of other general crimes without legitimate ground. Article 20(5) of the Act is also unconstitutional as it violates the principle of prohibition against blanket delegation of Article 75 of the Constitution by delegating the matters concerning the time, duration, procedure, and other matters of the disclosure of identity to presidential decree in the entirety without specifically defining basic contents and scopes of the time, duration, procedure, and other matters concerning the disclosure.

7. Conclusion

The part of the request for constitutional review with respect to Articles 20(3) and 20(4) of the Act is dismissed as unjusticiable as it lacks the prerequisite relationship to the underlying trial by the unanimous opinion of the participating Justices. With respect to Subdivision 1 of Article 20(2) of the Act and Article 20(5) of the Act, Justices Yun Young-chul, Ha Kyung-chull, Kim Hyo-jong, and Kim Kyung-il are of the opinion that such provisions are not unconstitutional, and Justices Han Dae-hyun, Kim Young-il, Kwon Seong, Song In-jun, and Choo Sun-hoe are of the opinion that such provisions are unconstitutional. Although more of the Justices are of the opinion that such provisions are unconstitutional, this number is short of the quorum required for an unconstitutionality decision set forth under Subdivision 1 of Article 23(2) of the Constitutional Court Act, which mandates a decision that the above provisions on review are not unconstitutional. It is so ordered.

Justices Yun Young-chul (Presiding Justice), Han Dae-hyun, Ha Kyung-chull, Kim Young-il, Kwon Seong, Kim Hyo-jong, Kim Kyung-il, Song In-jun (Assigned Justice), and Choo Sun-hoe

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Aftermath of the Case [주5]

Subsequent to this decision, the Commission on Youth Protection mapped out the policy direction and embarked on the revision of the relevant provisions of the Juvenile Sex Protection Act, to bifurcate the identity disclosure system so that those convicted individuals with higher possibility of recidivism would be subject to the disclosure of detailed information as to the identity including a facial photograph, and those with lower possibility of recidivism would be provided with an opportunity for educational programs upon successful completion of which they would be exempted from disclosure of identity. Those convicted of peddling and arranging for the purchase of sex are likely to be initially subject to the disclosure of detailed information including a facial photograph. Encouraged by the decision of the Constitutional Court holding the identity disclosure system not unconstitutional, the Commission on Youth Protection is expected to expand and develop this system in the future.

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[주1] .
[주2] . Megan's Law refers generally to the laws of various States of the United States
[주3] . providing, although the laws vary in details from one State to another, for the
[주4] .'registration of the convicted sex offenders,' and the 'notice to the community'
[주5] .that is comparable to our identity disclosure system. The first of these laws was
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