신상정보 등록제도 관련 헌법재판소 결정 분석- 헌재 2015. 7. 30. 2014헌마340 등 결정을 중심으로 -

Abstract

Sex offenders also become ordinary citizens when they return to society through re-socialization. Therefore, the state should respect their dignity and values as human beings and ensure that their basic constitutional rights are not unnecessarily restricted. It would be said that it conforms to the constitutional spirit of a democratic rule of law. The target decision on the registration of this case extended the concept of ‘sexual violence crime’ from ‘whether adultery or molestation by violence, etc. is included as a component’ to the concept of ‘sexual crime’ that causes sexual shame or insult and thus violates the victim’s right to sexual self-determination. This is contrary to the precedent of the Constitutional Court, does not conform to the constitutional spirit of minimum restriction of basic rights, maximum guarantee. The clause on registration of this case stipulates that a person to be registered shall be selected uniformly if he or she falls under a certain sex offense to be registered without any procedure to determine whether the registration is necessary in consideration of the risk of recidivism or the severity of responsibility. It would be said that the minimum of infringement and the balance of legal interests cannot be recognized against the purpose of legislation to curve recidivism and the nature of security disposition on the premise of future risks of actors. It is reasonable to make a constitutional nonconformity decision on this case management clause, which requires a uniform registration period of 20 years to be applied without any consideration of the seriousness of criminal liability or the risk of recidivism of the person to be registered. However, it is questionable whether the revision of the law stipulates that the registration period is up to 30 years in the case of imprisonment with a sentence exceeding 10 years is consistent with the purpose of the decision to set it as the minimum period necessary to prevent recidivism under empirical support. In addition, it would be desirable to set the registration period differently depending on the amount of fines or to set the registration period rationally by dividing it further depending on the risk of re-offending and the severity of responsibility based on the sentence. It is reasonable for the target decision to make a constitutional disagreement decision and provisional application order because the procedural improvement, which differentiates or reduces the registration period according to the purpose of the target decision, belongs to the area of the legislative body's formation discretion, and if it loses its validity by making a simple constitutional decision on the management clause of this case, it will be inappropriate for the target decision to eliminate all the provisions on the grounds for the management of the registration information. Other measures to improve the personal information registration system need to be taken to clarify the components of the crime of using cameras etc and to unify personal information preservation and management institutions, but more fundamental preventive measures are urgently needed, such as active and professional treatment and education or implementation of rehabilitation programs of sex offenders who are at risk of repeat offenses.