On September 2012, a female sex worker, Kim Jeong-mi(42) has requested unconstitutionality of an act on Special Law on Prostitution to the Seoul Northern District Court. She said that she did not want to be a criminal because of the work she does since it was the only way that she could earn money. She also claimed that even if the sex trade was treated contemptuously, it was only a job that sex workers could do to pay the living expenses or the education fees of their children.
‘Unconstitutionality of an act’ is carried out when the person directly involved claims the article that applied to oneself is unconstitutional and the Court accepts one’s argument after verifying the legislative purpose and the legal stability. It is different from the constitutional appeal filed by common people since it was requested by the justice department because it might be unconstitutional. In case of the constitutional appeal, prior examination would take place by a small bench of three judges. In the case of unconstitutionality of an act, it would be submitted directly to a full bench.
Kim’s mother passed away when she was eighteen years old and two years later, her father passed away. She started working menial jobs since she was twenty years old. However, five years later, she had a car accident and injured her leg. She worked in a restaurant, but it was a difficult job because she had an uncomfortable leg. When she became twenty-eight years old, she found a job in the house of prostitution. She worked in Gwangju, Gyeonggi province for six years and went to a brothel in Dongdaemun-gu, Seoul on July 2004, two months before the Special Law on Prostitution was enforced.
There were four legal points that have been discussed. The right to decide was the first point. The supporters stated that prostitution could not be a right to decide since sex has been commercialized. Jang Young-soo, a professor at Korea University Law School, stated that sex trade which had been done spontaneously could not be accepted in the community where adultery is illegal. He also contended that the sex trade could not be protected since moral chaos could take place. However, the opposition claimed that the prostitution was a private matter and the government should not intervene in one’s life. Choi Jin-nyeong, an attorney Logos a law firm, argued that the key point of the Special Law on Prostitution was the moral punishment. Moral punishment should be the minimum. Han Sang-hee, Konkuk University Law School professor, also stated that the sex trade should be understood as women’s human rights. She said that the sex trade had been a social ‘evil’ and punished the sex workers.
The second was about equality. The main judge of the case, Oh Won-chan, asserted that the Special Law on Prostitution did not punish sex trade by foreigners. He also stated that since the fundamental reason was the same, it was unfair to punish the sex workers only. Doctor Seung Jae-hyun of the Korean Institute of Criminology refuted that the main idea of the act was ‘understanding sex’ and the level of the effect on society of concubinage, the personal matter, and the sex trade which dealt with random people.
The third was if the sex trade should be punished. The supporters argued that if the sex trade disrupt the society, it should be punished. Kim Jae-ryeon, an attorney, stated that if the sex trade, the physical action of the human being, is legalized organ sale should also be legalized. He also said that if the sex trade would not be punished, the sex industry could be legalized. The opposition claimed that sex workers must be reformed not punished. Moreover, Oh insisted that the sex trade without exploitation or pressure should be punished at the minimum. He also said that the punishment of the simple sex trade should be minimized since it could be cracked down by the investigative agency.
The last was the effectiveness of the clamp down. Supporters asserted that Special Law on Prostitution was not implemented properly. Jang, professor of Korea University, insisted that abortion (illegal in Korea) could not be legalized even if eradicating abortion was difficult realistically and the sex trade was in the same situation as abortion. He stated that the society should work hard to increase the effectiveness of the clampdown, not abolishing the act. The opposition argued that the sex trade still will take place after the enforcement of Special Law on Prostitution. Oh claimed that illegal sex trade had been increased in closed areas after the implementation of the act and the most important thing was that it was hard to check if the act was effective.