간통죄의 존폐론에 관한 헌법적 고찰

The Constitutional Court has ruled four times that punishment for adultery is constitutional. From first to third ruling, the Constitutional Court took Article 10 of constitutional law as constitutional base of sexual self-determination, but at the forth ruling, its constitutional base was both Articles 10 and 17 of constitutional law. However, Article 17 of constitutional law seems to be appropriate for the constitutional base of sexual self-determination. It is because sexual behavior and rights to determine his or her sex partner must be protected by the code of freedom and privacy of personal life. When the Constitutional Court carries out constitutional review by taking all the legal effects into account, a common base for adultery is sexual self-determination. In other words, the Constitutional Court has ruled as well: (1) the first clause of Article 36 of constitutional law is a constitutional guarantee as a constitutional principle as well as civil liberty-oriented basic human rights; (2) the first clause of Article 11 of constitutional law presupposes sexual self-determination via its content of equality; and the principle of excess prohibition in the second clause of Article 37 of constitutional law which includes the principle of proportionality between obligation and penalty is about the limit of basic human right restriction for sexual self-determination. Therefore, constitutional review of adultery is to rule whether the restriction of sexual self-determination is legitimate constitutionally or not. As the standard of constitutional review for adultery, the Constitutional Court applied the principle of excess prohibition in the second clause of Article 37 of constitutional law, and decided it is difficult to admit the excess prohibition of individual’s sexual self-determination via its viewpoint of constitutionality. Regarding the common good achieved, the Constitutional Court decided that it is possible to admit its crucial common good as well as balance of legal interests, in that it protects good sexual morality and guarantees marriage and family systems. However, since the regal reality on sexual self-determination has changed, national interference in individual’s sexual behavior and sexual duty of good faith can be infringement of freedom and privacy of personal life. Next, some argues that punishment for adultery must be maintained for the benefit and protection of adultery, and punishment for adultery can protect women, but punishment for adultery must be abolished by following reasons: First, punishment for adultery does not protect marital relationship and monogamy, namely the benefit and protection of the law, only irreparably damages marital relationship in the course of criminal penalty for adultery and causes pains to all the family members, thus dismantling family and leaving an inerasable scar on them. Second, punishment for adultery is severer for women than for men. Men who are relatively stronger economically can have the ability to pay enough alimony and therefore be exempted from punishment for adultery, but women who are economically weaker cannot but be punished. In addition, women can suffer from both penalty and social criticism. As a result, it is doubt whether punishment for adultery is for women or not. Third, the reality that statutory punishment is limited in a prison sentence makes difficult to operate the law appropriately, restricts judge’s discretionary power for the determination of punishment, and allows the government to forcibly execute individual’s sexual duty of good faith, even using penalty. This cannot but be excessive national interference in individual’s marital life. Domestic perception of sex and love for the present is that the government must not interfere in individual’s sexual life through laws, and an important constitutional right is not the unconditional maintenance of family but individual’s sexual self-determination. Above all, the self-regulation of marriage and sexual self-determination must be respected. In this regard, it is more reasonable that the person who committed adultery is brought to account for his or her failure in carrying out the duty of marital life via a variety of indemnifications for damage than the criminal penalty for adultery.