The first draft of this paper was presented at the Conference on The Role of
Constitutional Adjudication in the Development of Asian Democracy hosted by, and
held at, the SNU Law Research Institute, on December 12, 2011. The Korean version
of this paper was published in New Trends in Criminal Law by the Supreme
Prosecutors Office Republic of Korea (Mar. 2012).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 individuals 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 ones own partner is already included in article
17 of the Constitution protecting ones 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
