성범죄자 신상정보등록제도에 대한 헌법적 고찰 -성폭력처벌법상 등록대상자조항에 대한 헌법재판소 결정의 분석과 평가를 중심으로-

Abstract

This paper examines whether the person subject to registration stipulated in the ‘Act on Special Cases concerning the Punishment, Etc. of Sexual Crimes’(Sexual Crimes Punishment Act) complies with the constitutional principle on the restriction of fundamental rights, focusing on the analysis and evaluation on the decisions of the Constitutional Court. The sexual offender registration system stipulated in the Sexual Crimes Punishment Act is controversial in that, above all, if a conviction or summary order is confirmed due to a sex crime subject to registration, the person is naturally subject to registration without a separate examination on the risk of recidivism. Accordingly, constitutional complaints have been continuously being made as to whether the provision of the person subject to registration of the Sexual Crimes Punishment Act infringe on fundamental rights by stipulating too broadly the scope of persons subject to registration. In this regard, the Constitutional Court has decided that defining those who have been convicted of obscenity using communication media as subjects to registration violates the right to self-determination of personal information. However, with the exception of this one case, Constitutional Court maintains the conclusion that it is not a violation of fundamental rights even if the provisions of the person subject to registration do not classify the risk of recidivism. Sex offender registration is based on the risk of future recidivism of the offender. As a security measure, it is different from punishment imposed on the premise of responsibility for the past illegality committed by the offender. Therefore, as a principle applied to security measures, the principle of due process stipulated in the Constitution must be complied with, and it must conform to the principle of proportionality regarding the limitation of fundamental rights. In the current sex offender registration system, there is no procedures for the offender to submit opinions, data, or appeal. In addition, there is no procedures to decide whether to register according to the risk of recidivism, and there is no procedure to suspend registration once the risk of recidivism disappears. On the other hand, allowing people who are not recognized for the risk of recidivism to be eligible for registration is difficult to see as a suitable means to achieve the purpose of sex offender registration system, and does not meet the minimality of the constraint. In the end, improvement of the sex offender registration system should start by making it clear that the system aims to prevent re-offending of sex crimes and to improve the effectiveness of investigations following recidivism. When sex offender registration and the registration period are decided through judgment on whether there is a risk of recidivism and the extent of the risk, the legitimacy of registration can be recognized.