Public Hearing on July 14 at the Constitutional Court for the Third Unconstitutionality Review of the 'Death Penalty'

Constitutional Court Grand Bench./Photo by Constitutional Court

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] The Constitutional Court, currently conducting the third unconstitutionality review of the death penalty system, will hold a public hearing in July. This marks the first time in 13 years since the Constitutional Court's second ruling in 2010 that the death penalty system will be discussed in the court's chamber.

The Constitutional Court will hold a public hearing on July 14 at 2 p.m. in the Grand Chamber regarding the constitutional complaint filed by Mr. A, who was detained and indicted on charges including killing a direct ascendant and forcible molestation, challenging Article 41, Clause 1 of the Criminal Act, which designates the death penalty as a type of punishment, and Article 250, Paragraph 2 of the Criminal Act (killing a direct ascendant), which includes the death penalty as a statutory punishment.

During the public hearing, after statements from Mr. A’s legal representatives and the Government Legal Affairs Corporation representing the Minister of Justice, who is an interested party in this case, witnesses recommended by both sides will argue respectively for the abolition and the necessity of retaining the death penalty.

Mr. A requested the court to refer the above provisions for a constitutional review during the first trial, but when the court dismissed the request, he filed a constitutional complaint with the Constitutional Court.

Previously, the Constitutional Court ruled constitutional on the death penalty provisions in the Criminal Act Article 41, Clause 1 and Article 250 (murder) with a 7-2 vote in 1996 and a 5-4 vote in 2010, respectively.

At that time, the Constitutional Court concluded, "Although our Constitution does not directly regulate the death penalty system, it indirectly recognizes the death penalty system through the interpretation of Article 110, Paragraph 4 of the Constitution, and the expectation of the death penalty’s crime prevention effect cannot be deemed unreasonable," and "It cannot be considered a fundamental infringement of the right to life or a violation of the principle of proportionality."

Article 110, Paragraph 4 of the Constitution states, "Military trials under emergency martial law may be conducted as a single instance only in cases of crimes by soldiers or military officials, espionage related to military affairs, and crimes related to sentries, guard posts, supply of poisonous food or drink, or prisoners of war as prescribed by law. However, this does not apply if the death penalty is imposed." This clause directly mentions the death penalty.

Additionally, the Constitutional Court stated regarding the statutory punishment of death for murder, "Defining the death penalty, which denies the life of the offender, as one of the illegal effects for a crime that denies another person's life is an inevitable choice of means to protect one or multiple lives equal in value to the offender’s life, and thus cannot be considered contrary to the principle of proportionality."

For the Constitutional Court to declare a law unconstitutional, at least six of the nine justices must agree. Among the current justices, five?including Chief Justice Yoon Nam-seok, and Justices Lee Seok-tae, Lee Eun-ae, Moon Hyung-bae, and Lee Mi-seon?have expressed positions favoring the abolition or active consideration of abolishing the death penalty.

According to the Constitutional Court, Mr. A’s side argues that ▲ Article 110, Paragraph 4 of the Constitution, which sets the cases and exceptions for single-instance military trials under emergency martial law, is a technical provision and cannot serve as a constitutional basis for the death penalty system; ▲ the claim that the death penalty has more effective crime deterrence than other punishments or that retaining the death penalty contributes to preventing heinous crimes is an unfounded and vague inference; ▲ once the death penalty is executed, there is no way to correct a later proven wrongful conviction; and ▲ the function of permanently isolating criminals from society to protect society can be sufficiently achieved through life imprisonment or life imprisonment without parole, so the death penalty is unconstitutional and should be abolished.

On the other hand, the Ministry of Justice argues that ▲ the decision to abolish the death penalty is a matter for the people and legislators, not the judiciary; ▲ the Constitution at least indirectly recognizes the death penalty through textual interpretation; ▲ the death penalty, imposed proportionally to the severity of the crime, is an expression of retributive justice based on objective feelings of justice and aligns with justice; ▲ the absence of statistical evidence proving the deterrent effect of the death penalty does not negate its nature; ▲ life imprisonment without parole cannot replace the death penalty; and ▲ the possibility of wrongful convictions is an inherent limitation of the judicial system and should be addressed through appellate and retrial systems.

This content was produced with the assistance of AI translation services.