Constitutional Court Rules "Victim Protection Order" Without Postal Access Ban Regulation Is Constitutional

Constitutional Opinion: "Access Ban Achievable Through Court Injunction Decisions"
Unconstitutional Opinion: "Victims Still Face Psychological Pressure... Arbitrary Legislation"

The Constitutional Court has ruled that the legal provision under the court's victim protection order that does not include regulations on prohibition of approach via mail does not violate the Constitution.

Chief Justice Yoo Nam-seok of the Constitutional Court (center) and the justices are seated in the Grand Bench of the Constitutional Court in Jongno-gu, Seoul, on the afternoon of the 23rd.
[Image source=Yonhap News]

On the 28th, the Constitutional Court announced that in the constitutional complaint case filed by Mr. A, who claimed that Article 55-2, Paragraph 1 of the Act on the Punishment of Domestic Violence does not regulate prohibition of approach via mail and is therefore unconstitutional, the court decided the provision is constitutional with a vote of 4 (constitutional) to 5 (unconstitutional but constitutional review deferred). Since the number of justices voting for unconstitutionality or constitutional review deferral did not reach the required quorum of six or more, the provision was upheld as constitutional.

Unlike a ruling of ‘unconstitutional’ which immediately nullifies the effect of the legal provision upon the Constitutional Court’s ruling, a ‘constitutional review deferral’ acknowledges the unconstitutionality but allows the National Assembly a set period to enact substitute legislation, thereby maintaining the provision under review.

Mr. A requested the court to issue a victim protection order prohibiting approach within 100 meters of his workplace, prohibition of approach by electronic means, and prohibition of approach by mail, on the grounds that he was subjected to domestic violence crimes such as verbal abuse, insults, and threats by his husband. The court accepted the victim protection order prohibiting approach within 100 meters of Mr. A’s residence and workplace and prohibition of approach by electronic communication for six months.

Subsequently, Mr. A filed an appeal with the court, arguing that the victim protection order should include prohibition of approach via mail, as his husband was threatening him by sending threatening and critical letters or parcels to his workplace and residence. When his request for a constitutional review referral to the court was dismissed, he filed a constitutional complaint.

Chief Justice Yoo Nam-seok and Justices Lee Seon-ae, Lee Eun-ae, and Moon Hyung-bae, who issued the constitutional opinion, stated, "There is a difference between victims of approach by electronic communication and victims of approach by mail in terms of urgency of harm, scope, and need for prompt action. For approach by mail, the court can relatively quickly achieve the purpose of prohibiting approach by mail through provisional injunctions and indirect coercive orders, and if the approach constitutes a criminal offense such as threats under the Criminal Act, the victim can also take measures such as filing a complaint."

They continued, "Considering the characteristics of the victim protection order system, the nature of approach by mail, and the degree of harm, even if the legislature did not designate prohibition of approach by mail as a type of victim protection order in the provision under review, it is difficult to see this as arbitrary legislation beyond the legislature’s discretion or as a violation of the principle of equality."

On the other hand, Justices Lee Seok-tae, Lee Jong-seok, Lee Young-jin, Kim Ki-young, and Lee Mi-sun expressed the opinion of constitutional review deferral, stating, "There is no evidence that excluding prohibition of approach by mail from the victim protection order, compared to prohibition of approach by electronic communication, means that approach by mail does not threaten the victim’s safety, or that the victim experiences less psychological pressure, or that such prohibition is ineffective in protecting the victim."

They added, "Unlike the provision regulating prohibition of approach by electronic communication, the absence of regulation on prohibition of approach by mail constitutes unreasonable discrimination and violates the principle of equality. However, the unconstitutionality lies not in the victim protection order itself but in the absence of regulations on prohibition of approach by mail. Since a simple ruling of unconstitutionality would cause an unreasonable result by creating a legal vacuum that eliminates the basis for issuing victim protection orders, it is appropriate to issue a constitutional review deferral decision."

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