Constitutional Court: "Excluding Public Officials from Appointment for Possession of Child Pornography is Unconstitutional"... Effect Maintained Until May 2024

Provisional Application of Legislative Deadline in May Next Year Declared Constitutionally Incompatible
Fails to Meet Minimal Infringement and Balance of Legal Interests

The Constitutional Court has ruled that the regulation prohibiting individuals punished for possessing child and adolescent pornography from being appointed as public officials is unconstitutional.

There are differences in the degree of blameworthiness among types of crimes involving children and adolescents, and it was judged excessive to permanently bar those punished for simple possession, which has relatively low blameworthiness, from public office. This was viewed differently from the case of teachers, which the Constitutional Court had previously upheld as constitutional. However, while recognizing the unconstitutionality of the current legal provisions, the Court issued a constitutional discordance decision to temporarily maintain the effect of the current law until it is amended, due to concerns about legal gaps.

Constitutional Court Grand Bench.
[Photo by Constitutional Court]

On the 29th, the Constitutional Court ruled by a 6 (constitutional discordance) to 2 (constitutional) vote in a constitutional complaint case regarding the provisions of Article 33 of the National Public Officials Act and Article 31 of the Local Public Officials Act, which stipulate disqualification for appointment, specifically the parts that prohibit "persons who have been sentenced for possessing child and adolescent pornography knowing it to be such" from being appointed as national or local public officials.

This case involved Mr. A, who was prosecuted in November 2019 for possessing a cloud access link containing youth pornography on his mobile phone and was sentenced to a fine of 5 million won and ordered to complete 40 hours of a sexual violence treatment program, and Mr. B, who was prosecuted in August 2019 for possessing child and adolescent pornography on his mobile phone and was sentenced to a fine of 7 million won and ordered to complete 40 hours of a sexual violence treatment program. Both filed constitutional complaints claiming that the challenged provisions violated their rights to hold public office and equality. Both intended to apply for general public official positions.

The Constitutional Court limited its judgment to the right to hold public office. The Court stated, "It is difficult to consider those sentenced for possession of child and adolescent pornography and those who committed crimes with different protected interests as comparable groups for discrimination issues," and therefore did not examine whether there was a violation of the right to equality. Mr. B also claimed a violation of the right to pursue happiness, arguing that the challenged provisions make self-realization through public office impossible, but the Court found it sufficient to judge only the violation of the right to hold public office and did not separately consider this claim.

First, the Court acknowledged the legitimacy of the purpose and appropriateness of the means of the challenged provisions, which aim to secure high ethical and moral standards for public officials to maintain public trust and facilitate the smooth performance of public duties.

However, it found that the provisions did not meet the requirements of minimal infringement and balance of interests.

The Court pointed out, "The challenged provisions prohibit appointment to all general public official positions, including those unrelated to children and adolescents, making the scope of restriction excessively broad and comprehensive. They impose a permanent ban on appointment and do not recognize any possibility of resolving the disqualification."

It added, "Since the types and nature of crimes vary, the legislative purpose can be sufficiently achieved by less restrictive means, such as limiting appointment for a reasonable period considering the blameworthiness and risk of recidivism of individual crimes," and concluded, "This violates the principle of proportionality and infringes on the petitioners' right to hold public office."

Regarding the balance of interests, the Court stated, "The public interest in maintaining public trust by excluding those convicted of possessing child and adolescent pornography from general public official duties to facilitate smooth public service and protect the sexuality of children and adolescents is significant," but also noted, "The challenged provisions uniformly and permanently restrict appointment to all general public official duties regardless of the severity of the crime or risk of recidivism, and do not allow any exceptions to resolve disqualification, resulting in disadvantages to the petitioners that are excessively large even considering the importance of the public interest."

However, considering that a simple declaration of unconstitutionality could create a legal gap where individuals convicted of possessing child and adolescent pornography would not be restricted at all from appointment as general public officials, the Court decided to maintain the effect of the current law until May 31, 2024, allowing the legislature time to amend the law.

Meanwhile, Justices Eun-Ae Lee and Jong-Seok Lee dissented, stating, "If a person convicted of possessing child and adolescent pornography performs public duties, it would be difficult to maintain public trust in the entire public office."

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