What has drawn public attention among these rights in the first decade of the
twenty-first century is the right to self-determination. The KCC ruled that the right
to self-determination is recognized as a constitutional right based upon human
dignity and worth, covering the right to personal information,^23 the right to rest,^24
and the right to smoke or the right to be free from smoking.^25 For example, in 2004 ,
the KCC recognized the rule of self-responsibility drawn from the general right to
free activity and the right to self-determination. This rule means that if a
legal burden like the obligation to pay tax is imposed beyond one’s own responsi-
bility or determination, it may infringe on one’s general right to free activity or
self-determination.^26
The most controversial part of self-determination involves sexual autonomy.
According to the KCC, the right to self-determination includes the right to sexual
self-determination, which means that every human being has the freedom to
choose his or her sexual relationships. The KCC has had chances four times to
review Article 241 of the Criminal Act, which bans adultery, but the unconstitution-
ality opinion has so far failed to obtain the required six justices. As a matter of fact,
in a 2008 case, a majority of five KCC justices delivered an unconstitutionality
opinion on this matter but failed to obtain one more concurring justice out of the
remaining four to meet the quorum to declare the unconstitutionality of the law.
27
However, in 2009 , the KCC invalidated Article 304 , which prohibits any person
from inducing a female, not habitually immoral, to engage in sexual intercourse
under the pretense of marriage. The court ruled that such a criminal sanction
excessively restricts not only males’ sexual self-determination but also females’ right
to sexual self-determination by regarding females as being inferior to males in
enjoying their right to sexual self-determination under their own responsibility.^28
Another issue relating to human dignity and worth involves the death penalty.
In 2010 , the KCC deliberated the constitutionality of the death penalty in terms of
human dignity and the right to life. The KCC ruled in a 5 – 4 decision in favor of the
death penalty.^29 However, a tightly split decision represents a change in social
(^23) Constitutional Court Decision 99 Hun-Ma 513 , 2004 Hun-Ma 190 (consolidated), May 26 ,
2005 ,Korean Constitutional Court Reports, Vol. 17 ,No 1 , 668 , 683.
(^24) Constitutional Court Decision 2000 Hun-Ma 159 , September 27 , 2001 ,Korean Constitu-
tional Court Reports, Vol. 13 ,No 2 , 353 , 362.
(^25) Constitutional Court Decision 2003 Hun-Ma 457 , August 26 , 2004 ,Korean Constitutional
Court Reports, Vol. 16 ,No 2 , Part 1 , 355 – 63.
(^26) Constitutional Court Decision 2002 Hun-Ka 27 , June 24 , 2004 ,Korean Constitutional Court
Reports, Vol. 16 ,No 1 , 706.
(^27) Constitutional Court Decision 2008 Hun-Ka 17 , October 30 , 2008 ,Korean Constitutional
Court Reports, Vol. 20 ,No 2 , Part 1 , 696.
(^28) Constitutional Court Decision 2008 Hun-Ba 58 , November 26 , 2009 ,Korean Constitu-
tional Court Reports, Vol. 21 ,No 2 , Part 2 , 520.
(^29) Constitutional Court Decision 2008 Hun-Ka 23 , February 25 , 2010 ,Korean Constitutional
Court Reports, Vol. 22 ,No 1 , Part 1 , 36.