I Became a Law School Genius – 133



I Became a Genius Law School Student Episode 133

Those who raised their hands were also sent away.

The question is whether she actually reached the correct answer.

“I’ll just check one thing.”

“What is it?”

“When explaining the principle of proportionality you clearly said that punishment should be proportional to the nature of the crime. “They say it’s a major principle of criminal law.”

“Yes. And it’s not just limited to criminal law. “The principle of proportionality is a fundamental principle stipulated in the ‘Constitution’ which is the higher law.”

“also.”

The constitution was deliberately pronounced with emphasis. Then Chae Song-ha nodded his head once and answered in a confident voice.

“I know what your answer is. We are talking about the law that is the premise of this case. So regarding Article 3 Paragraph 1 of the Special Act on Punishment of Sexual Crimes etc.…”

Chae Song-ha glanced at the data she had organized in her laptop.

“You have to ‘request for unconstitutionality review.’”

‘You’ve reached it. To the correct answer.’

“Application for review of unconstitutionality?”

I pretended to be pretentious and asked Chae Song-ha again.

“Could you explain in more detail?”

“Unconstitutionality review… means that the Constitutional Court reviews whether a law enacted by the National Assembly violates the Constitution. The supporting provisions are Article 107 Paragraph 1 and Article 111 Paragraph 1 of the Constitution.”

Article 107 of the Constitution of the Republic of Korea

① In cases where whether a law violates the Constitution is a prerequisite for a trial the court shall submit the case to the Constitutional Court and make a decision based on its judgment.

Article 111 (1) The Constitutional Court oversees the following matters.

1. Judgment on the constitutionality of a law upon recommendation by the court

Judges make decisions based on laws and regulations.

However there may be many cases where there are problems with the law itself on which it is based.

This is because the law is not a sacrosanct and inviolable law that fell from the sky one day.

An imperfect order created by imperfect humans.

Therefore it can go wrong and if it does it needs to be corrected and improved.

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The means for this is adjudication of unconstitutionality of laws.

If the law that serves as the premise for the trial is against the Constitution a decision that determines the fate of the litigant should not be made based on such law.

In this case the presiding judge must ask the Constitutional Court to review whether the law is unconstitutional.

“That is a request for unconstitutionality review. And since this is the presiding judge’s unique authority the litigant must apply to the presiding judge to ‘request a review of the unconstitutionality of the law to the Constitutional Court.’”

That is why it is a ‘request for adjudication of unconstitutionality’.

“The provision to request a review of the unconstitutionality of the law is the premise of this case. So are you saying that Article 3 Paragraph 1 of the Special Act on Punishment of Sexual Violence etc. is unconstitutional?”

“yes. that’s right.”

“What is the basis?”

“That is of course the principle of proportionality.”

Chae Song-ha declared.

“This provision goes directly against the principle of proportionality.”

“In what sense?”

“Please look at the structure of the condolence again carefully.”

Article 3 (Extra-severe rape etc.)

① Article 319 (1) of the Criminal Act (Housing Intrusion) Article 330 (Night-time Home Intrusion Theft) Article 331 (Special Theft) or Article 342 (Attempted Crime. However limited to attempted crimes under Articles 330 and 331). The person who committed the crime is Article 297 (rape) and Article 297-2 (quasi-rape) of the same law. If a person commits the crimes of Article 298 (Forcible Molestation) and Article 299 (Quasi-Rape and Quasi-Forcible Molestation) he or she shall be punished by imprisonment for life or more than 7 years.

“Isn’t it strange?”

“What do you mean?”

“This article is intended to be applied when a person who commits a home invasion-type crime also commits a sex crime-type crime.”

I nodded to indicate that I should continue.

“Isn’t the number of cases covered by one condolence… too many?”

‘You got to the point.’

“What do you mean there are too many?”

“To put it simply there are five crimes related to home invasion including attempted crimes. There are four categories of sexual crimes. “If you multiply the two you get 20 combinations and all of them are punished with this one article.”

“Then what problem does that cause?”

“…the same punishment range is applied to crimes of different nature.”

The essential problem with this provision.

“For example imagine that there is a person who commits rape after a special theft and a person who commits forcible molestation after a home invasion.”

In this case the sins committed by the two people are so completely different that they should never be lumped together.

This is because aggravated theft is a much more serious crime than home invasion and rape is a much more serious crime than forcible molestation.

‘Any act that causes sexual shame or disgust constitutes molestation but rape requires an act of penetration.’

“Nevertheless this article imposes the same penalty range of ‘life imprisonment or imprisonment for 7 years or more’ as if the two people had committed the same crime.”

Of course the actual sentence will be different.

Is the judge not an idiot and would punish the combination of aggravated theft and rape in the same way as home invasion and forcible molestation?

However the fact that the scope is the same is itself a problem.

This is because it is normal for crimes where the type of act and the weight of the crime are differentiated to this extent to be separated into different articles from the beginning and have different ranges of punishment set.

Even in the general criminal law each crime is separated and the range of punishment is different. It’s as if those things were forced together into one article.

“That’s not the only problem.”

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Chae Song-ha pointed out one after another.

“Under criminal law attempted rape is a much more serious crime than forcible molestation.”

The crimes of attempted rape and forcible molestation are almost similar in appearance.

However attempted rape is an intentional act of rape which is a much more serious crime than molestation so it is punished more severely for this reason.

“But…the opposite is true when this article applies. “The minimum sentence for the home invasion-rape combination and the home invasion-forcible molestation combination is the same at 7 years in prison.”

The range of punishment applicable to rape and forcible molestation will be the same. What does it mean?

“The combination of home invasion and attempted rape can receive a ‘reduced sentence for attempted rape’ so the statutory sentence can be lower than 7 years in prison.”

The reduction in sentence for an attempted crime is separate from the reduction in sentence due to sentencing.

In some cases if the sentence is reduced to an attempted crime and the sentence is reduced to sentencing a situation may arise where the sentence is lowered to 3 years or less.

“You said that if the sentence is less than three years a suspended sentence can be imposed.”

“It was like that.”

“Then… a person who commits a home invasion-forcible molestation can never receive a suspended sentence but a person who commits a more serious crime such as a home invasion-attempted rape may actually receive a suspended sentence.”

It is not enough to group crimes of different nature into one and the absurd thing happens that even more serious crimes are punished more lightly.

“To put it simply… in the case of our client A it would have been better to go to the police and lie and say ‘I actually tried to rape B but unfortunately failed.’”

It may sound absurd but it is true.

All problems occurred due to structural flaws in Article 3 Paragraph 1 of the Special Act on Punishment of Sexual Violence etc.

“This is a clear violation of the principle of proportionality.”

Chae Song-ha concluded.

“This article is unconstitutional because it goes against the fundamental principles of the Constitution. Therefore we must file a request for unconstitutionality review and suspend the effect of the provision.”

‘That’s great.’

We are law school students. Studying law for entrance exams is truly our calling and we live a life of reading exam papers and solving legal problems every day until we get bored.

Mechanical and repetitive training. In the process we gradually forget the imperfection of the law.

Laws are rules given to solve problems. Doubting it is because it is of no use in an ‘efficient’ solution.

‘I wonder if it’s the constitutional exam. ‘I never have doubts while solving criminal or civil law problems.’

Therefore in this assignment given in the form of a criminal law case it was extremely difficult to come up with a judgment on unconstitutional laws.

Chae Song-ha has an unconventional way of thinking.

Her ideas may be inefficient and she received poor grades on exams because of them.

However because of this I was able to reach a conclusion that a typical law school student would not have been able to reach.

‘In fact Article 3 Paragraph 1 of the Sexual Assault Act was later ruled unconstitutional.’

Although it is still in active service at the time of the play this provision is ultimately ruled unconstitutional and loses effect on the grounds that it runs counter to the principle of proportionality.

It is like making the same judgment as the future Constitutional Court that upholds Song.

‘No matter how much I gave you the hint you still have talent.’

I look at my temporary student with pride. I don’t know where the confidence I was talking about has gone but I am waiting for my decision with a very nervous expression.

Just like it was during the special training last week.

“That’s correct.”

At the same time as he said that Chae Song-ha let out a deep breath.

“Whoa… I’m glad…”

“As Chae Song-ha said this provision has the potential to run counter to the principle of proportionality. “If it is determined to be unconstitutional it will naturally be invalidated in this trial so it will be the most advantageous outcome for Mr. A.”

Compared to sentencing arguments there is a long way to go. You must also apply for a review of the unconstitutionality of the law and prepare and submit new evidence and documents to support your claim.

‘So it’s a cumbersome answer but it can produce the best results.’

“Wait a minute.”

Jeon Hyeok intervened.

“Are you really saying that an unconstitutionality trial is the answer that intern Park Yoo-seung spoke of?”

“Yes but.”

“No you’re saying that requesting review of unconstitutional laws is the presiding judge’s exclusive authority? “So even if I apply they might not accept it?”

It was a forceful act that was close to catching a raw fish.

“Oh that’s…”

However Chae Song-ha stuttered perhaps because he had not yet investigated until this point.

‘Ugh. After doing everything well what do you do at the end?’

I can’t help it. Let the teacher step up to the rescue of his insecure disciple.

“Of course you can.”

“No then…”

“In that case you can file a constitutional appeal.”

Jeon Si-hyeok’s expression which had been triumphant became as hard as stone.

“…Constitutional petition?”

“There are two types of constitutional petitions. “What we generally know is a rights relief-type constitutional complaint but in cases where an application for unconstitutionality review is rejected like this we can file an unconstitutionality review-type constitutional complaint.”

Constitutional Court Act Article 68 (Reason for Claim)

① Any person whose fundamental rights guaranteed under the Constitution have been violated due to the exercise or non-exercise of public power may file a constitutional appeal adjudication with the Constitutional Court excluding trials in the court. However if there are relief procedures in other laws a claim cannot be made until all of the procedures have been completed.

② When an application for adjudication of the constitutionality of a law pursuant to the provisions of Article 41 Paragraph 1 is rejected the party who made the request may request a constitutional appeal adjudication to the Constitutional Court. In this case the party cannot apply for a review on unconstitutionality again for the same reason during the legal proceedings of the case.

Paragraph 1 is a provision that stipulates a right relief type and Paragraph 2 is a provision that stipulates a constitutional complaint in the form of unconstitutionality review.

Accordingly even if the request for review of the unconstitutionality of the law is not accepted we can directly request the Constitutional Court to review the law in question.

“Is there anything else you want to say?”

“…Tch.”

Jeon Si-hyeok clicked his tongue and retreated.

There was nothing more to object to.

“Well then it’s time to end the meeting.”

I made a suggestion to those seated.

“Shall we take a vote with a show of hands? What suggestion should be made to client A? “Those who support the idea that we should first recommend an application for unconstitutionality review please raise your hands.”

Surprisingly all six people raised their hands. Even Go Ye-rin with a nervous look on her face and Jeon Si-hyuk showing off his anger.

‘no. Isn’t that surprising?’

In this situation it is difficult to present an option other than requesting a review of the unconstitutionality of the law. This is the same no matter how much you dislike me.

“….”

The three partner lawyers were silently watching our every move at this very moment.

‘All processes’ of this meeting are being evaluated and scored in real time.

Even though a plausible answer has been found they continue to make a fuss just because of their antipathy toward me? It’s perfect for the evaluation to be shattered.

In fact based on his attitude so far he would have already received quite a negative rating.

“All six people supported the application for unconstitutionality review. That’s it.”

The last comment was directed to Chansol’s partner lawyers.

“…Huh.”

Soon Attorney Kang Dong-hwi burst into laughter.

“It wasn’t a task I was asked to solve like this.”

“But it was persuasive enough.”

Attorney Heo Min-jeong evaluated it that way.

“Interesting.”

Attorney Hyun Jun-seo who had been silent also added a word.

“In fact this case is a somewhat modified and reorganized version of the case we handled last year. And… the solution I thought of at the time was to file a request for unconstitutionality review.”

His eyes flashed sharply.

“However we were unable to put it into practice. “It was a worthwhile means of trying but the client who was tired of the lawsuit chose to give up everything and accept the verdict.”

‘Huh.’

That was quite likely. Crime destroys the life of the victim and the life of the perpetrator at the same time.

Imagine that one day your boss finds out that his father and husband have been accused of a sex crime and are facing criminal trial.

People around you will be greatly shocked and feel betrayed and there is a high possibility that you will no longer be able to lead a normal daily life.

The cost is so terrible that it cannot be glossed over as a mere momentary mistake.

‘It’s also a problem that would have been better if I hadn’t done something bad in the first place.’

Client A… or the original person seemed to have felt guilty about his own mistake to the point where he went straight to surrender so he probably couldn’t bear it even more.

That’s why I decided to give up further fighting and accept the verdict.

“However I did not intend to go that far when presenting the assignment. This is because I thought it was too harsh of a request to ask you to consider the option of adjudicating the law for unconstitutionality. however”

The corners of Hyun Jun-seo’s mouth suddenly rose.

“Intern Park Yoo-seung. And Chae Song-ha intern. “You two went beyond my imagination.”

The moment Chae Song-ha heard those words he clenched his fists and trembled.

“For this task we will assume that the two of you are tied for first place. Congratulations.”

* * *

After filming was over it was time to leave work. The broadcasting station’s staff came to collect the camera and returned.

“thank you.”

Chae Song-ha bowed his head to me.

“That won’t happen. “It was the answer Chae Song-ha found on her own.”

“But if it weren’t for the hints Park Yu-seung gave me I never would have realized it. “How should I repay this favor?”

“If that’s the case later when you become a lawyer and I contact you about work issues please help me instead of chewing me out. “I’m not familiar with entertainment.”

“I will. “Of course.”

Chae Song-ha who said that while looking straight into my eyes bowed her head again and left the office. That moment when I too was about to pack my bags and go home.

“Intern Park Yoo-seung. “Is it okay for a moment?”

I heard a voice calling me.

“I have a story to tell. “Where there are no cameras.”

The owner of the voice was none other than lawyer Hyun Jun-seo.