A. Background of the Case
In this case, the Constitutional Court held that the provisions of the former Act on the Protection of Children and Juveniles against Sexual Abuse that prevent a person sentenced to a punishment for committing a sex offense and for whom such sentence became final and conclusive from establishing or being employed by a medical institution for ten years from the date on which the execution of the sentence is terminated (hereinafter referred to as the "Employment Restriction Provisions"), violate the Constitution.
The complainants were medical doctors who had been convicted of indecent acts by compulsion, etc., and upon becoming unable to find jobs in medical institutions on account of the Employment Restriction Provisions, filed a constitutional complaint to argue against the unconstitutionality of the relevant provisions.
B. Summary of the Decision
The Constitutional Court ruled that the Employment Restriction Provisions are in violation of the Constitution by infringing on occupational freedom.
There were three main issues. The most crucial issue was whether restricting employment uniformly for ten years against sex offenders would undermine occupational freedom, and the decision was held as follows. Taking the possibility of recidivism for granted based only on the record of sex offenses causes excessive restriction on the fundamental rights of those among persons with sex offense records that do not show a risk of recidivism. Presuming that the risk of recidivism will not disappear before the lapse of ten years of the employment restriction period imposes an excessive restriction on those who can overcome the risk of recidivism within ten years despite their sex offense records. In addition, even between those who have committed sex offenses the crimes differ in terms of severity, and the same applies to the risk of recidivism. Therefore, imposing a uniform employment restriction for a ten-year period is an excessive restriction.
The two other major issues were whether the expression of "sex offenses against adults" is against the rule of clarity, and whether the Addenda provisions that stipulate a person who has committed a crime before the Act enters into force should also be subject to the employment restriction if he or she had been sentenced to a punishment, and such sentence became final and conclusive after the Act entered into force, violates the principle of prohibition of retroactive punishment. The Constitutional Court recognized both cases to be constitutional.
Meanwhile, the Constitutional Court proposed a legislative alternative to resolve the unconstitutionality in this case. It specifically called for a system under which a judge can evaluate the individual sex offender’s potential for recidivism.
C. Significance of the Decision and Aftermath of the Case
Although this decision was a declaration of unconstitutionality of the part that prohibits medical institutions from employing any person who has committed a sex offense against an adult in the Act on the Protection of Children and Juveniles against Sexual Abuse, the logic for unconstitutionality could also be applied to the relevant provisions against other institutions. As a result, requests for adjudication were filed against other institutions that had imposed restrictions on employment under the former and current Acts, and thereafter decisions of unconstitutionality followed.
The parts decided as unconstitutional in the subsequent decisions are as follows. The part related to an educational institution for "a person sentenced to a punishment for committing a sex offense against an adult and for whom such sentence became final and conclusive" under the Act on the Protection of Children and Juveniles against Sexual Abuse (2013 Hun-Ma436, July 28, 2016); the part related to a child welfare institution for "a person sentenced to a punishment for committing a sex offense against an adult and for whom such sentence became final and conclusive" (2013Hun-Ba389, July 28, 2016); the part related to a private educational institute and the parts related to teaching institutes and private tutors including private educational institutes for "a person sentenced to a punishment for committing a sex offense against an adult and for whom such sentence became final and conclusive" (2015Hun-Ma359 and 2015Hun-Ma914, July 28, 2016); the part related to a child- and juvenile-related institution for "a person sentenced to a punishment or medical treatment and custody for committing a sex offense against a child or juvenile and for whom such sentence became final and conclusive" (2015Hun-Ma98, April 28, 2016); and the part related to a facility for welfare of persons with disabilities for "a person sentenced to a punishment for committing a sexual crime defined in Article 2 Section 1 of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes and for whom such sentence became final and conclusive" under the Act on Welfare of Persons with Disabilities (2015Hun-Ma915, July 28, 2016).
The medical sector immediately welcomed the decision (The Kyunghyang Shinmun, April 2, 2016), but quite a number of people were worried about the adverse effect this decision would bring about (The Weekly Donga, May 18, 2016). There were also concerns that children and juveniles might be exposed to the risk of potential sex offenses until legislative improvements are made, because the Constitutional Court made a simple unconstitutionality decision instead of a decision on constitutional nonconformity that orders a provisional application of the relevant provisions.
On January 16, 2018, the National Assembly amended the Act on the Protection of Children and Juveniles against Sexual Abuse by Act No. 15352 (enforced on July 17, 2018), to prescribe that when sentencing a penalty or medical treatment and custody for committing a sex offense, instead of uniformly restricting employment for ten years, an order for restriction of employment by institutions related to children or juveniles would be ordered alongside a determination of the period for which such restriction would last, taking into account the severity of the crime and the risk of recidivism.