## Facts

- A criminal defendant’s case was pending on appeal before the Gwangju High Court in a prosecution involving rape and murder under the Special Act on the Punishment of Sexual Crimes and Protection of Victims and related offenses.
- In the course of the criminal proceedings, the defendant challenged provisions of the Criminal Act and related statutes that authorize (1) capital punishment and (2) life imprisonment as available penalties for certain serious crimes.
- The defendant argued that capital punishment violates the constitutional right to life and the guarantee of human dignity and worth, and that it amounts to cruel punishment.
- The defendant also argued that capital punishment cannot satisfy proportionality (including a least-restrictive-means analysis) because nonlethal punishments could protect society.
- The Gwangju High Court accepted the request and referred the question to the Constitutional Court of Korea as a “request for adjudication on the constitutionality of statutes” (2008Hun-Ka23).

## Issues

1. Whether statutory provisions authorizing capital punishment violate the Constitution’s protections of the right to life and human dignity and worth (including the limits clause for restricting basic rights).
2. Whether capital punishment fails proportionality review, including whether life imprisonment is a sufficiently effective alternative that would restrict basic rights less.
3. Whether the possibility of wrongful conviction makes capital punishment unconstitutional as such.

## Decision

- The Constitutional Court, by a 5–4 vote, held that the statutory provisions providing for the death penalty are constitutional.
- The Court also held constitutional the challenged provisions authorizing life imprisonment.
- The majority reasoned that the Constitution presupposes the existence of capital punishment, pointing in part to constitutional text that refers to capital punishment in the context of military justice (Article 110(4)).
- Applying proportionality analysis, the majority concluded that capital punishment can be a proportionate response to exceptionally grave crimes and that the legislature may regard it as necessary to protect life and maintain public order.
- The majority stated that capital punishment imposes a greater deprivation than life imprisonment and may have stronger deterrent force; for especially heinous crimes, the legislature could judge that life imprisonment is not commensurate with the offender’s responsibility and would not satisfy the public sense of justice and the victim family’s sense of justice.
- On least-restrictive-means, the majority found it difficult to identify an alternative penalty that would restrict the offender’s interests less while producing the same deterrent and retributive effects in the most serious cases.
- The majority rejected the claim that the risk of wrongful conviction is a defect of capital punishment itself; it treated that risk as a problem to be addressed through safeguards such as multi-tier review and retrial procedures and improvements to those procedures.
- A dissent (including an opinion by Justice Kim Hee-Ok) concluded that capital punishment is incompatible with a constitutional order that centers human dignity and worth and guarantees the right to life, emphasizing the finality of execution and the fallibility of criminal adjudication.

## Legal Principles

- When constitutional text and structure contemplate capital punishment, the death penalty is not automatically barred by the right to life; constitutionality depends on whether its statutory design and application remain within constitutional limits.
- Proportionality review permits the legislature to retain capital punishment for narrowly confined, exceptionally serious crimes when the legislature reasonably finds it necessary to meet legitimate penological aims such as protection of life, deterrence, and retribution.
- In assessing least-restrictive means, a court may defer to legislative judgment where no clearly equivalent nonlethal sanction can be shown to achieve the same deterrent and retributive effects for the most severe offenses.
- Concerns about wrongful conviction do not, by themselves, invalidate capital punishment as a matter of constitutional law; the constitutional response may lie in strengthening criminal procedure safeguards (appellate review, retrials, and related measures).
- The continued retention or abolition of capital punishment is largely a matter for legislative choice unless the Constitution clearly forbids it.

## Conclusion

In *Capital Punishment*, 22-1(A) KCCR 36, 2008Hun-Ka23 (Const. Ct. Korea Feb. 25, 2010), the Constitutional Court of Korea upheld, 5–4, statutory provisions authorizing both the death penalty and life imprisonment against challenges grounded in the right to life and human dignity. The majority relied on constitutional structure and text suggesting that capital punishment is contemplated by the Constitution, and held that, for the most heinous crimes, the legislature may treat execution as proportionate and necessary where life imprisonment is not viewed as an equal substitute in deterrent and retributive effect. The Court also concluded that the possibility of wrongful conviction is addressed through procedural protections rather than by striking down the death penalty itself, while the dissent would have found capital punishment incompatible with the Constitution’s commitment to human dignity and the right to life.


Capital Punishment, 22-1(A) KCCR 36, 2008Hun-Ka23 (2010)