A. Background of the Case
In this case, the Constitutional Court held that the registration system of personal information of persons finally declared guilty of a crime of obscene conduct using communication means in accordance with the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (hereinafter referred to as the "Special Act on Sexual Crimes") violates the Constitution, and decided for the first time that the registration of some of the crimes subject to the registration of personal information is unconstitutional.
Before this decision, the Constitutional Court ruled that the provisions of the Special Act on Sexual Crimes that require persons finally declared guilty of a crime of indecent act by compulsion, taking photos using a camera, etc., or sex trafficking to register personal information do not infringe on their right to self-determination of personal information (2013Hun-Ma423 et al., July 24, 2014; 2014Hun-Ma340 et al., July 30, 2015; 2013Hun-Ma830, February 25, 2016). However, it was decided that it does not conform to the Constitution to preserve and manage the registered personal information uniformly for 20 years without considering the risk of recidivism, etc. (2014Hun-Ma340 et al., July 30, 2015).
The Special Act on Sexual Crimes provides for the disclosure of personal information and a notification system in addition to the personal information registration system, and after the Constitutional Court had ruled that the system of disclosing personal information of persons who purchased juvenile sex is not in violation of the Constitution (2002Hun-Ka14, June 26, 2003, opinion of unconstitutionality of five justices), it decided that the system of disclosing and notifying personal information of persons finally declared guilty of a sexual crime against a child or juvenile, indecent act by compulsion against adults, quasi-indecent act by force, rape after trespassing upon residence, rape, or quasi-rape, is not in violation of the Constitution (2011Hun-Ba106 et al., October 24, 2013, dissenting opinion of two justices; 2014Hun-B68 et al., May 26, 2016; 2015Hun-Ba212, May 26, 2016 [in the cases of 2014Hun-Ba68, et al. and 2015Hun-Ba212, two justices set forth dissenting opinions on the disclosure system and three justices set forth dissenting opinions on the notification system]; 2015Hun-Ba196 et al., December 29, 2016).
When the complainant was found guilty of an obscene act using communication means, he filed a constitutional complaint alleging that it is in violation of the Constitution to register personal information even in cases involving obscene conduct using communication means, a relatively minor crime.
B. Summary of the Decision and Relevant Decisions
The Constitutional Court held that the provisions of the Special Act on Sexual Crimes which stipulate that persons finally declared guilty of an obscene act using communication means are subject to registration of personal information, infringe on the complainant’s right to self-determination of personal information, for the following reasons.
The purpose of the registration system of personal information of sex offenders is to preserve and manage personal information after receiving it from specific sex offenders in order to suppress their recidivism and to investigate sex crimes effectively. Those subject to registration should be limited to the extent necessary for the legislative purpose of the personal information registration system. The types of conduct that constitute the elements of a crime of obscene acts using communication means are diverse in pattern, and thus, the risk of recidivism and necessity for the registration of personal information differ greatly according to such patterns. However, any person finally declared guilty of a crime of obscene conduct using communication means is subject to the compulsory registration of personal information without involvement of separate procedures, such as a review by a judge, and has no means to contest the outcome once registration is made, and therefore such system infringes on the right to self-determination of personal information.
Justices Kim Yi-Su and Lee Jin-Sung set forth a separate opinion that the relevant systems infringe on the right to self-determination of personal information in that persons subject to registration are decided without considering the risk of recidivism.
Justices Lee Jung-Mi, Kim Chang-Jong and Ahn Chang-Ho set forth a dissenting opinion on the ground that, in the case of the personal information registration system, the state agency preserves and manages personal information internally for the purpose of managing sex offenders, and thus, the benefits and protection of the law of the persons subject to registration would not be significantly infringed on; and although the crime of obscene conduct using communication means that involve no physical contact, the severity and harm are not insignificant compared to sexual violence crimes occurring in the physical space; and also that the scope of the establishment of such crime is limited because it is a malicious crime that can be constituted only when there is an intent of arousing or satisfying sexual urges.
In the meantime, by the decision for 2014Hun-Ma785, which was sentenced on the same day as this decision and the decision for 2014Hun-Ma709, which was sentenced on October 27, 2016, it was decided that the provisions of the Special Act on Sexual Crimes which stipulate persons finally declared guilty of trespassing on a public place for a sexual purpose and of distributing obscene materials by using children or juveniles as those subject to registration of personal information, do not violate the right to self-determination of personal information (five justices set forth an opinion of unconstitutionality, agreeing with points in the unconstitutionality opinions and concurring opinions relating to this decision).
C. Aftermath of the Case
On December 20, 2016, the National Assembly amended the Special Act on Sexual Crimes by Act No. 14412, and excluded persons who were fined for committing such crimes as trespassing on a public place for sexual purpose, distribution of obscene materials using children or juveniles, etc. from the those subject to registration of personal information, etc., in addition to the crime of obscene conduct using communication means (proviso to Article 45 Section 1). In addition, the period of preservation and management of the registered information are differentiated according to the type of crime (Article 45 Section 1), and it became possible to shorten the period of registration by a court judgment, if the period of registration prescribed by Act is deemed inappropriate (Article 45 Section 4).