@article{ART002034808},
author={ Raeyoung Kim },
title={nconstitutional Decision on the Adultery Clause(2009Hun-Ba17 etc.(consolidated), Feb 26, 2015) - Focused on the Ministerial Arm and the Retroactive Effect -},
journal={Dankook Law Riview},
issn={1738-3242},
year={2015},
volume={39},
number={3},
pages={495-515},
doi={10.17252/dlr.2015.39.3.017},
url={http://dx.doi.org/10.17252/dlr.2015.39.3.017}

TY - JOUR
AU - Raeyoung Kim
TI - nconstitutional Decision on the Adultery Clause(2009Hun-Ba17 etc.(consolidated), Feb 26, 2015) - Focused on the Ministerial Arm and the Retroactive Effect -
T2 - Dankook Law Riview
PY - 2015
VL - 39
IS - 3
PB - Institute for legal study
SP - 495-515
SN - 1738-3242
AB - Our Criminal Act Article 241(1) provides “A married person who commits adultery shall be punished by imprisonment for not more than two years. The same shall apply to the other participant.” Feb. 26, 2015, Our Constitutional Court ruled the anti-adultery provision contradicts the Constitution(with dissenting opinion of two Justices that the contested clause is constitutional). But Court Opinion is divided in three in detail. Five Justices ruled that the contested provision is not an appropriate means to serve the legitimate legislative purpose, thus it restricts the individual right to sexual autonomy. Whereas concurring opinion of two Justices ruled that the provision is not in itself a violation of the Constitution. One Justice ruled the provision is not narrowly tailored because it does not distinguish ruptured home(so-called show window couple) from normal home. Another concurring opinion of one Justice ruled the provision imposes imprisonment(without fine) as the only statutory sentence excludes or restricts the possibility of considering the individuality and particularity of each case. There are two major arguments with regard to the above decision. First, Does the decision have ministerial arm? KCC ruled that at least six Justices shallagree on a certain issue for granting the reasoning with ministerial arm, setting aside the question whether the reasoning has ministerial arm or not. So this decision dies not have ministerial arm, because only five Justices ruled that the adultery clause in itself contradicts Our Constitution. Another argument is related to the retroactive effect of the unconstitutional decision on the criminal clause. The revised Constitutional Court Act provides that the unconstitutional decision on the criminal clause is retroactive to the day after the decision day. The revised clause is not only uncertain in relation to the standard date but also discriminating fixed criminals against criminals pending.
KW - Adultery, Ministerial Arm, Retroactive Effect, Right to Sexual Autonomy, Reasoning
DO - 10.17252/dlr.2015.39.3.017
UR - http://dx.doi.org/10.17252/dlr.2015.39.3.017
ER -

Raeyoung Kim . 2015, “nconstitutional Decision on the Adultery Clause(2009Hun-Ba17 etc.(consolidated), Feb 26, 2015) - Focused on the Ministerial Arm and the Retroactive Effect -”, Dankook Law Riview, vol. 39, no. 3, pp. 495-515. Available from: doi:10.17252/dlr.2015.39.3.017

Raeyoung Kim “nconstitutional Decision on the Adultery Clause(2009Hun-Ba17 etc.(consolidated), Feb 26, 2015) - Focused on the Ministerial Arm and the Retroactive Effect -” Dankook Law Riview 39.3 pp. 495-515 (2015): 495.

Raeyoung Kim . nconstitutional Decision on the Adultery Clause(2009Hun-Ba17 etc.(consolidated), Feb 26, 2015) - Focused on the Ministerial Arm and the Retroactive Effect - Dankook Law Riview [Internet]. 2015; 39( 3), : 495-515. Available from: doi:10.17252/dlr.2015.39.3.017

Raeyoung Kim . “nconstitutional Decision on the Adultery Clause(2009Hun-Ba17 etc.(consolidated), Feb 26, 2015) - Focused on the Ministerial Arm and the Retroactive Effect -” Dankook Law Riview 39, no.3 (2015): 495-515. doi: 10.17252/dlr.2015.39.3.017