A. Background of the Case
In this case, the Constitutional Court held constitutional the provisions relating to journalists and private school employees in the Improper Solicitation and Graft Act (hereinafter referred to as the “Solicitation Act”), which had caused a lot of controversy before the Act entered into force.
The Solicitation Act was enacted and promulgated by Act No. 13278 on March 27, 2015, and entered into force on September 28, 2016. The complaints were journalists and private school employees. Before the Solicitation Act entered into force, the complainants filed a constitutional complaint, claiming that ① the provisions that include journalists and private school employees in the definition of public officials, etc., that are prohibited from being involved in improper solicitation, and that do not apply the Solicitation Act to any conduct deemed in line with social norms (hereinafter referred to as the “Provisions on Improper Solicitation”); ② the provisions that not only prohibit the receipt of financial or other advantages in connection with duties regardless of whether they are given in exchange for any favors, but also prohibit the receipt of financial or other advantages exceeding a certain amount from the same person regardless of whether it is connected to duties or given in exchange for any favors (hereinafter referred to as the “Provisions on the Receipt of Financial or Other Advantages”); ③ the provisions that delegate to a Presidential Decree the specification of the limit on honorariums for outside lectures, etc. and on the value of food and drink, congratulatory or condolence money, gifts, etc. that can be received by journalists and private school employees (hereinafter referred to as the “Delegation Provisions”); ④ the provision that imposes on journalists and private school employees the duty to report any cases where they become aware that his or her spouse received unacceptable financial or other advantages in connection with the duties of the journalist or private school employee in question (hereinafter referred to as the “Mandatory Reporting Provision); and ⑤ the provisions that prescribe that any person failing to report such matters shall be subject to punishment or an administrative fine (hereinafter referred to as the “Penalty Provisions”) violate their fundamental rights.
B. Summary of the Decision
The Constitutional Court held that the provisions at issue do not infringe on the right to general freedom of action and the right to equality of journalists and private school employees, for the following reasons.
(1) The Provisions on Improper Solicitation and the Provisions on the Receipt of Financial or Other Advantages aim to secure public trust by eradicating practices of improper solicitation and the receipt of money or goods, so as to guarantee that private school employees and journalists, who engage in work of a public nature, perform their duties in a fair manner. Under the Provisions on Improper Solicitation, any conduct which is justifiable from a comprehensive law and order perspective is excluded from restrictions even if it falls under one of the categories of improper solicitation; and punishments are limited to cases where journalists or private school employees have performed their duties at the request of an improper solicitation. In addition, a certain compensational relationship can be presumed from the mere act of giving a significant amount of money to private school employees or journalists. Considering the aspects stated, it is hard to conclude that the aforementioned provisions violate the principle against excessive restriction and thus infringe on the complainants’ general freedom of action.
(2) Regarding the monetary value of honoraria for outside lectures, etc., congratulatory or condolence money, gifts or food and drink for purposes of social intercourse and rituals, the receipt of which is allowed under the Solicitation Act, we acknowledge the necessity to delegate such matters to adaptable administrative legislation, so that they can be flexibly regulated to reflect social norms and in response to circumstantial changes. Also, it can be easily deduced that the value of acceptable financial or other advantages or honoraria for outside lectures as specified by Presidential Decree pursuant to the Delegation Provisions are connected to duties and would therefore be of a value reasonable by all standards, within the limit of one million won. In other words, the value would be an amount that would not compromise the integrity of public agencies as defined by the Solicitation Act, reflecting the customs of the society in congratulatory or condolence money, or entertainment and gifts. Therefore, the Delegation Provisions do not infringe upon the complainants’ general freedom of action.
(3) The spouse of a private school employee or journalist maintains a close relationship with the person in question, sharing financial gains and everyday life. The receipt of unacceptable financial or other advantages by such a spouse in connection with the duties of the private school employee or journalist can in fact be considered the equivalent to the receipt of financial or other advantages by the private school employee or journalist him or herself. The Solicitation Act does not penalize the spouse that has received financial or other advantages, and the Mandatory Reporting Provision and Penalty Provisions punish conduct in violation of the obligation to report only when a public official, etc. fail to report the offence of a spouse when made aware of it. Therefore, this does not conform to the guilt-by-association treatment prohibited under Article 13 Section 3 of the Constitution. In addition, under the Solicitation Act, the prohibition on receiving financial or other advantages is limited to the spouse in the family; the scope of prohibition is minimized by requiring a connection to the duties of a private school employee or journalist; and if a private school employee or journalist becomes aware that his or her spouse received unacceptable financial or other advantages and thus reports such fact to the head of the relevant institution or if he or she or his or her spouse returns, delivers or expresses an intention to reject such unacceptable financial or other advantages, the private school employee or journalist gains immunity. Hence, it is hard to find that the Mandatory Reporting Provision and Penalty Provisions infringe upon the complainants’ right to general freedom of action by violating the principle of personal responsibility, the rule against excessive restriction, etc.
(4) It is up to the legislator to decide which of those employed in areas that require fairness, integrity and the non-purchasability of duties on par with public officials should be covered by the Solicitation Act; and such a decision would reflect several factors, such as the public nature of the duties involved, the existence of solicitation practices and entertainment culture and the extent of their severity, public awareness, and the ensuing influence on society. Therefore, the legislator’s decision to include only private school employees and journalists in the definition of “public official, etc.” and impose the corresponding obligations under the Provisions on Improper Solicitation, the Provisions on the Receipt of Financial or Other Advantages, the Mandatory Reporting Provision, and the Penalty Provisions is hardly considered to be arbitrary discrimination. Thus, we cannot conclude that the aforementioned provisions infringe on the complainants’ right to equality.
Regarding this case, some of the justices expressed a dissenting opinion, as follows.
① Justices Kim Chang-Jong and Cho Yong-Ho stated that the provisions, which include journalists and private school employees in the definition of ‘public official, etc.’ and thus make them subject to the Solicitation Act (hereinafter referred to as the “Definition Provisions”), should be the subject matter of direct review; and that the Definition Provisions, which disregard the private sector’s autonomous regulation and self-correcting functions and instead permit an excessive exercise of the State’s punitive authority, violate the rule against excessive restriction, thus infringing upon the complainants’ fundamental rights.
② Justices Lee Jung-Mi, Kim Yi-Su, and Ahn Chang-Ho shared the opinion that because the “lower limit on the value of unacceptable financial or other advantages” in the Delegation Provisions is a matter to be decided by law by the legislature, the above provisions violate the principle of parliamentary reservation, thus infringing upon the complainants’ fundamental rights.
③ Justice Kim Chang-Jong held that because it is possible to interpret the value to be prescribed by Presidential Decree under the Delegation Provisions as being independently determined regardless of the limit of “one million won at a time or three million won in each fiscal year from the same person,” it is not easy to predict that the value will be set within the limit of one million won, which violates the rule against blanket delegation and infringes upon the complainants’ fundamental rights accordingly.
④ Justices Lee Jung-Mi, Kim Yi-Su, Kim Chang-Jong, and Ahn Chang-Ho presented the following dissenting opinion. Even if it is necessary to punish a public official who has become aware that his or her spouse received financial or other advantages but fails to report such conduct, it is hard to say that the culpability of the failure to report, nature of the crime, possibility of criticism, and liability for such conduct are equal to cases where public officials directly received financial or other advantages. Nonetheless, the Penalty Provisions impose equal statutory sentences for the failure to report. The provisions thus run contrary to the principle of proportionality between punishment and liability and fail to strike a balance under the criminal justice system, thereby infringing upon the complainants’ fundamental rights.
C. Aftermath of the Case
Following the Court’s decision, private school employees and journalists also became subject to the Solicitation Act, and the controversy over the provisions of the Solicitation Act which related to private school employees and journalists finally ended before the Act entered into force. Most civic groups and citizens welcomed the decision. The ruling and opposition parties respected the decision, saying they would minimize the side effects of the Solicitation Act and help the Act make a soft landing (The Kyunghyang Shinmun, July 28, 2016).
In academic circles, opinions were divided over the Court ruling. Some scholars stated that since the Solicitation Act itself was a so-called “poison pill,” applying the Solicitation Act to the private sector, in particular, could cause controversy over unconstitutionality. They added that the Act was nevertheless required because negative practices were firmly entrenched in our society when there was a desperate need to move toward a transparent society and the ensuing restriction of freedom was not excessive (Yun Young-Mi, A Critical Summary of Leading Constitutional Decisions in 2016). Others took a critical view of the decision, arguing that the Court had delivered a decision of constitutionality too easily though the application of the Solicitation Act to the private sector, such as journalists and private school teachers, which was highly likely to infringe on their rights to general freedom of action (Sung Chung-Tak, Problems with and Improvement Measures for the Improper Solicitation and Graft Act).