On Human Rights Conforming Statutory Interpretation of the Judiciary: Regarding Supreme Court Full Bench Decision 2019Do2037 on April 21 2022
Authors:   Korean Constitutional Law Asscciation, JOH Dongeun 
Published: March 2023

Supreme Court Full Bench Decision 2019Do2037 on April 21 2022 dealt with statutory interpretation of Military Criminal Act Article 92-6 which states that a person who commits an indecent act such as anal intercourse with any military personnel shall be punished by imprisonment with labor for not more than 2 years. The court overruled it’s prior ruling by declaring that the Article shall not be construed to include acts taking place in private places with mutual consent. It is of utmost importance to note that this case was decided against the background of Constitutional Court Decision 2012Hun-Ba258, July 28 2016 which held that ‘an indecent act’ of the Article is not void for vagueness and does not violate complaint’s right to sexual self determination, right to privacy, and personal liberty. Aforementioned Supreme Court Case provides a valuable opportunity to look into how the court should consider Human Rights in statutory interpretation, in other words, what the structure and function of Human Rights conforming interpretation consists of. This study suggests that Human Rights conforming interpretation is an interpretative principle that can be derived from requirements of Constitution conforming interpretation(verfassungskonforme Gesetzesauslegung) and respect for international law as provided by Artcle 6 (1) of the Constitution. Understood as an interpretative mandate guided by the fundamental rights and international human rights norms, it requires that the meaning given by the mandate should be preferred even if the initial meaning without consideration of the mandate is not identical with the former. As such, it can be characterized as micro-level, as well as weak-form of judicial review(as formulated by Mark Tushnet). The determining factors in Human Rights conforming interpretation can be summarized as the following: 1) whether multiple interpretations can be legitimately presented within the boundaries of the statutory language, 2) what is the nature of the doubt regarding rights violation, and 3) when such interpretation should be adopted in relation to the referral to the Constitutional Court. The Supreme Court Decision provides multiple opinions addressing these issues. The dissenting opinion differed from other opinions in stating that there are no multiple interpretations possible within the boundaries of the given statutory text. The court’s opinion and the separate opinions 1, 2 all agreed that other possible interpretations were available but disagreed on what those versions actually were. The right to sexual self determination and equal treatment violations were well argued by the court’s opinion, but it would be more adequate to consider it to be an establishment of legitimate doubt on rights violation rather than the final judgment as the Constitutional Court would present its rulings. Human Rights conforming interpretation requires a disciplined sense of interpretive practice as well as an understanding that statutory interpretations operate in a sphere closely related to the goals of respect, protection and fulfillment of Human Rights. Provided that these conditions are met, it might be able to secure a middle ground standing inbetween democratic legislative process and strong form constitutional review.