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The Annotation of the Unconstitutional Decision against Criminal Conversation of the Constitutional Court

  • Public Land Law Review
  • Abbr : KPLLR
  • 2015, 71(), pp.417-444
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

Lee Hie Houn 1

1선문대학교

Accredited

ABSTRACT

The constitutional court of our country decided to be unconstitutional for a criminal conversation punishment rule in the criminal law by 2009HunBa17ㆍ205 etc decision in 2015 after an interval of 62 since it was prescribed for the first time on September 18, 1953. It is proper in the following reason that constitutional court decided to be unconstitutional in a criminal conversation punishment rule in the criminal law in 2015. The first, adultery belongs to privacy. Therefore, it is proper to solve an adultery problem for autonomous intention of a couple in essence of the privacy right. Accordingly, a criminal conversation punishment rule in the criminal law limits freedom of the private life so as to be over and is unconstitutional. The second, a lot of overpowering of the people of our country do not think with big evil only breaking it by adultery of a spouse in our society. And detective punishment for adultery demonstrates it, and there is little a general prevention effect and a special prevention effect. Therefore, it is not necessary to regulate adultery in the criminal law. The third, It does between couples badly if it comes to punish it for adultery and end family relation early. And It makes all one to an ex-convict among a parent and couples and let serious do it is a new soul and though a spouse constitute a family. And a divorce must be able to leave a premise if It is going to charge the companion who committed adultery in a criminal conversation, Therefore, It let you dismantle the existing marriage and family through a divorce if it punish adulter. Therefore, it is unconstitutional it is a constitutional soul to punish for adultery and it cannot protect the family system. The fourth, The rules of criminal conversation in relation to right to sexual autonomy must protect the protection benefit of the criminal conversation by a property distribution right of claim, the right to demand compensation for damage and the right to alimony or the limitation or exclusion of visitation right of children in the civil law or a claim for damages by illegal behavior that is not criminal punishment. Therefore, the rules of criminal conversation will be said to be an unconstitutionality rule to infringe a personal right to sexual autonomy in violation of a principle of balancing test. Only it can sentence by adultery of a spouse of law to a system of conditional release for a weak adultery act. When there are a few amounts of money of fine punishment for adultery, there are little general prevention and a general prevention effect and a special prevention effect. And what it prescribed only by penal servitude punishment in a criminal conversation rule in the criminal law in a reason it does not intend, and to be able to give a partner spouse of the spouse who did an adultery act the damage of big property is proper when an amount of money of fine punishment is excessive.

Citation status

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