The Constitutional Court ruled that punishing adultery is unconstitutional. Laws prohibiting adultery have been upheld for 110 years since the promulgation of a modern criminal code by the Korean Empire in the late 19th century. The laws were aimed at protecting the new marriage system based on monogamy after many years of a system accepting concubinage.
As the marriage system gradually took root in Korea, however, the modern version of the law was increasingly challenged on the grounds that it infringed on individuals’ personal freedoms. Squeezed between “protection of the modern marriage system” and “freedom of privacy,” the criminal law has long been at the center of controversy as seen in five constitutional appeals since the 1990s. Four of them ended up with the ruling that the adultery law was constitutional - except for the final one yesterday.
We respect the court’s conclusion that the law should be scrapped given the demands of our times and the principle of excess government interference in private lives. But the run-up to the ruling has triggered a problem. The idea of parties lodging constitutional appeals five times itself is abnormal. In addition, the act of a high court overturning its own earlier rulings can damage the authority of the court, not to mention establishing a bad precedent that constitutional appeals are a panacea for all conflicts of interest.
The kernel of the issue is whether levying criminal punishment on adultery is proper or not. But the court handed down “constitutional” rulings four times and the logic of two judges who ruled the law constitutional yesterday was also reasonable. That leaves room for controversy down the road.
The biggest problem is that whether to levy criminal punishment for adultery - and how to determine the penalty - is not the jurisdiction of the Constitutional Court. That’s our lawmakers’ job. That’s why the court mentioned a need for a serious review by the legislative branch of whether to abolish the adultery law. The legislature avoided the issue and shifted the responsibility to the judiciary. The National Assembly needs some deep soul-searching as their attitudes can hurt the principle of separation of powers.
Regardless of positive responses from experts and liberal civic groups, some oppose the court’s ruling as it could give license to married philanderers. The abolition of the law only means immunity from criminal punishment, not from ethical or civil responsibility. The government should come up with follow-up measures to protect the ethics of our society. JoongAng Ilbo, Feb. 27, Page 30
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