Court mulls redefining adultery constitutionality

The Constitutional Court is looking into the possibility of limiting the retroactive effect of a law that it may rule unconstitutional, as concerns have grown that its latest deliberation on the constitutionality of adultery laws may have a serious impact on society.

Following the Uijeongbu District Court’s petition in August 2011 to review the constitutionality of the nation’s law to punish adultery, the Constitutional Court has been deliberating the issue.

The petition was the fifth of its kind. Since 1990, four petitions have been filed challenging the constitutionality of the adultery law, but the court has ruled in all four trials that it is constitutional to punish the act.

If the Constitutional Court rules the adultery law unconstitutional this time, the ruling is expected to have a serious impact, because up to 100,000 people who were convicted under the criminal code previously could seek a retrial or compensation.

Clause 2 of Article 47 of the Constitutional Court Act states that any statute or provision thereof decided as unconstitutional shall lose its effect from the day the decision is made and the statutes or provisions thereof relating to criminal penalties shall lose their effect retroactively.

Based on the clause, all those convicted of adultery would be entitled to retrials and compensation if the court rules the law to punish adultery is unconstitutional.

According to the legal community, the retroactivity of the ruling could go back to when the criminal code was established in 1953. More than 100,000 are estimated to have been punished since then.

The court is expected to rule this month. According to Saenuri Party Representative Kim Jin-tae’s analysis of the court’s nine judges, seven of them are leaning toward abolition of the adultery law.

The Constitutional Court said Monday that it was recommended by its advisory board to seek a revision in the Constitutional Court Act to restrict the retroactive effect of its ruling in a case by case basis.

“We have collected opinions inside the court,” a Constitutional Court official said. “We will soon send our opinion to the National Assembly.”

The official said the court is reviewing a plan to decide the period of retroactive effect for cases where the verdicts were reversed to unconstitutional and is stipulating the separate retroactivity period individually in the verdict.

Representative Kim also submitted a bill last month to limit the retroactivity. Kim said if a law was ruled constitutional in the past, the retroactivity should go back only up to that point.

For adultery, the court ruled it constitutional for the last time in 2009 and under Kim’s plan, only the people who were punished for adultery since 2008 can be compensated.

While some laws were ruled unconstitutional from the starting point of their creation, the Constitutional Court also rules other laws unconstitutional to reflect the changes over time.

The representative ruling was the court’s decision in 2009 to rule the longstanding criminal code penalizing men who have sex with women under a false promise of marriage unconstitutional.

At the time, the court said it was necessary to punish the crime in the past, but many changes took place in people’s perception on marriage and sex.

After the landmark 2009 ruling, some people who were convicted of the crime now deemed unconstitutional filed suits against the state and won compensation.

For example, a 58-year-old man, who served eight months in prison in 1998, received 12 million won ($10,688) from the state in 2010 after he filed a suit against the government.

Experts said if the adultery law is ruled unconstitutional without modifying the retroactive effect, the amount the state will have to pay could be astronomical.

By Ser Myo-ja [myoja@joongang.co.kr]