South Korea: Constitutional court declares HIV criminalisation provisions constitutional despite split opinions

On 26 October 2023, the Constitutional Court, in a 4 (constitutional) : 5 (partially unconstitutional) opinion, ruled that Articles 19 and 25 (2) of the ‘Acquired Immunodeficiency Disease Prevention Act’ (as amended by Act No. 11749 of 5 April 2013), which prohibit a person infected with the human immunodeficiency virus (HIV) from committing an act of transmission to another person through blood or bodily fluids, and punish a violation with imprisonment for up to three years, are both constitutional. [Constitutionality].

However, there is a partial unconstitutional opinion by Justices Yoo Nam-seok, Kim Ki-young, Moon Hyung-bae, Lee Im-sun, and Jung Jeong-mi that the part of the above provisions that prohibits and punishes the transmission of infection by an infected person who faithfully implements the treatment prescribed by a medical practitioner is unconstitutional.

○ This case is the first case in which the Constitutional Court has decided on the transmission of human immunodeficiency virus by an infected person, and heard arguments from the Korean Health Service, the defendant’s counsel, and the witnesses (medical experts and professors).

○ The constitutionality of the provision under review was declared unconstitutional by four judges, partially unconstitutional by five judges, and partially unconstitutional by a majority of judges, but not by the quorum of judges (six judges) to determine unconstitutionality.

The full Court decision is available on request.