성적 자기결정권에 대한 헌법재판소의 결정 분석

Abstract

The Constitutional Court has determined that the crime of adultery was consistent with the constitution for four times. Concerning the crime of sexual intercourse under pretence of marriage, the Court changed its prior position and invalidated the statute. Self determination of sexual intercourse not only lies within the private sphere of an individual’s privacy, but it is also intertwined with the social culture of a community where the individual belong to. Hence,it lies within the grey area where personal values conflict with community values. Despite numerous constitutional decisions, the concept of self determination of sexual intercourse, and its protected scope have not been clearly defined. I would like to propose the following conclusion on the constitutional decision of the self determination of sexual intercourse First, there is no need to recognize the self determination of sexual intercourse as one of Constitutional Law's basic natural rights. The right to engage in a sexual relationship and to choose one's own partner is already included in article 17 of the Constitution protecting one's freedom of privacy. Second, the principle of balancing test is to be applied when deciding the standard of the constitutional review of the self determination of sexual intercourse, yet since the specifics of the evaluation is directly relevant to the individual's essentially protected freedom, applying at the same time a strict scrutiny of proportionality. Third, even if a strict proportional judgment were said to be applied regarding the self determination of sexual intercourse relevant to the adultery act, this does not immediately result to the unconstitutionality of the relevant act. However, in light of the changing legal reality concerning the self determination of sexual intercourse, it is most appropriate to abolish the adultery act. Fourth, even if the adultery act were to be abolished, and the crime of sexual intercourse under the pretense of marriage were to be invalidated, this would not mean that both acts are to be ethically nor legally permitted.