Justice Kim Changjong

Justice

Constitutional Court of Korea

Your Excellency Chairman Mr. Dorj ODBAYAR,

Honorable Delegates from Constitutional Courts across the globe,

Distinguished guests,

I am deeply honored to be here today as we celebrate the 25th anniversary of the Constitutional Court of Mongolia. I am also delighted to have this meaningful opportunity to make a presentation on the Constitutional Court of Korea’s effort to ensure fundamental social rights and exchange our views on this topic.

Current issues of constitutional justice would vary from country to country. Today, among various issues that the Constitutional Court of Korea is handling, I would like to focus on fundamental social rights and talk about how our Court has been endeavoring to ensure them.

The idea of a welfare state stems from the effort to overcome capitalism’s market imbalance issues and limitations of market functions to social issues. It has been further developed by reflecting the ideologies of social justice and equality.

The Constitution of Korea stipulates explicit provisions for fundamental social rights, including the right to education (Article 31), right to work (Article 32) and right to a healthy environment (Article 35). The right to live with dignity, which is a key fundamental social right, is provided in Article 34 and the details are as follows:

Article 34

• All citizens shall be entitled to a life worthy of human beings.
• The State shall have the duty to endeavor to promote social security and welfare.
• The State shall endeavor to promote the welfare and rights of women.
• The State shall have the duty to implement policies for enhancing the welfare of senior citizens and the young.
• Citizens who are incapable of earning a livelihood due to a physical disability, disease, old age or other reasons shall be protected by the State under the conditions as prescribed by Act.
• The State shall endeavor to prevent disasters and to protect citizens from harm therefrom.

The Constitutional Court of Korea recognizes the right to live with dignity as the fundamental right for the people(subjective fundamental right) in several decisions that are related to social assistance programs. The Court also acknowledges the possibility of normative control via such provisions. This ensures the possibility of control over the decisions on welfare policies made by the legislature or the administration.

Still, lawmakers need to take into account a number of different aspects when enacting legislation because the available resources are limited for the state to ensure the right to live with dignity for its people. Some of the examples include public financial capabilities, overall social security levels, the legal consciousness of the public, institutional sustainability and rationality. For those reasons, our Court allows broad discretion to the lawmakers when reviewing this kind of laws.

The Constitutional Court of Korea acknowledges the right to social security benefits as a constitutional fundamental right and provides the limitations as the following: [2000Hun-Ma342, 27 Sep 2001]

“Social security benefit rights are a fundamental social right, as stipulated in Article 34 Section 1 and 2 of the Constitution of Korea. The right to social security benefits, as a nature of fundamental social rights, demands the state to provide benefits initiatively and therefore needs to be prescribed by statutes rather than just by provisions in the Constitution. The details of the rights, including eligibility requirements, the scope of beneficiaries and the amount of benefits, are to be determined by statutes. In enacting such statutes, lawmakers are at the discretion of the formulation of them within a reasonable level, taking into account public fiscal capabilities, gross national income, general living standards and other socioeconomic conditions. Violations to the Constitution are limited to the cases where the legislative decisions are substantially arbitrary or do not guarantee the minimum level of fundamental social rights.”

In this regard, our Court respects the diversity of ways to realize welfare tasks and acknowledges the broad legislative discretion of lawmakers, while refraining from frivolously ruling something is unconstitutional. In other words, it is considered a violation of the Constitution only when lawmakers made no legislation for protecting the livelihood of the people, or the legislation was substantially unreasonable and was a “clear” deviation from the scope of discretion that is allowed under the Constitution.

However, as social demand for welfare legislation increases, the Constitutional Court of Korea cannot simply rely on rather passive decisions in the area of fundamental social rights any longer. In this regard, our Court has been expanding the possibility of constitutional review on welfare legislation and welfare administration by examining violations to property rights and the right to equality.

Now, I would like to introduce some of the recent decisions of our Court in regard to fundamental social rights.

1. Korea’s Industrial Accident Compensation Insurance Act serves as an insurance system that stipulates compensation for work-related accidents. However, the Act did not offer compensation for accidents that took place while the worker was commuting to and from work, taking a conventional route and method that could not be deemed as being under the control of the employer. For instance, if you get into an accident in a bus provided by the employer while commuting to and from work, you may claim insurance benefits, but if you get into one in your own car, you may not.

The Court recently decided that this provision was against the principle of equality and therefore was unconstitutional. [2014Hun-Ba254, 29 Sep 2016]

Commuting is closely related to and is an integral part of work as a preceding or following step before or after work. It is also linked to the location of the workplace and time of the day that work begins and ends as determined by the employer. Employees who do not enjoy the benefit of transportation provided by the employer or the equivalent thereof for commuting because of the size of the business, poor financial conditions, the employer’s unilateral will or personal reasons, may not claim the compensation even when they are subscribed to the industrial accident compensation insurance. The Court ruled that there was no reasonable ground to justify such a discrimination.

2. The National Pension Act of Korea acknowledges the right to claim for division of old-age pension for divorced spouses. The intentions of such a provision were the following two: to allow divorced spouses to receive liquidated or distributed benefits, recognizing their contribution to the formulation of the old age pension during the period of marriage; and to secure a certain level of income in the old age, based on the rights of their former spouses to the old age pension, for those who have no subscription to the national pension due to housekeeping labor or other reasons that prevented them from being employed.

A former provision of this Act had admitted the right to division of pension for divorced spouses indiscriminately based on the time period of legal marriage, including the time period that de facto marriage did not exist due to separation, abscondence from home or other reasons, where one party of the marriage had no contribution to the formulation of the pension. The Court ruled that it was a violation of property rights that were stipulated in the Constitution of Korea and therefore was unconstitutional. [2015Hun-Ba182, 29 Dec 2016]

The divided pension scheme has characteristics of both property rights and social security. The right to the old age pension is a joint property of a couple that is cooperatively accumulated during marriage and should be divided after divorce according to the contribution. The contribution here refers to housekeeping, child-care and other work that requires role-taking of the married couple. Therefore pension division should be estimated, considering the time period of de facto marriage during the subscription period of the National Pension Service. However, the provision at issue stipulated that the estimation of pension division should indiscriminately include the time period of legal marriage, including the time period during which de facto marriage did not exist due to separation or abscondence from home. The Court decided that this disregards the property right characteristic of the divided pension scheme and was unconformable to the Constitution.

3. Our Court also ruled that the subparagraph in the Labor Standards Act of Korea that provided an exception for advance notice of dismissal was unconstitutional, as it violated the right to work and the principle of equality. The subparagraph prescribed that the advance notice of the dismissal provisions should not be applied to workers who had been employed as monthly-paid workers for less than six months. [2014Hun-Ba3, 23 Dec 2015]

“The advance notice of dismissal system does not only regard dismissal, a core part of working conditions. It also regards the right to work as a minimum working condition that guarantees human dignity of the employees, since it aims to prevent a situation in which the employees suddenly lose their jobs and have trouble with their livelihood. Taking into account the intentions of legislating such a system and the reasons for exceptions for the notice, provided in the proviso of Article 26 of the Labor Standards Act, the exceptions should be limited to the cases where the employees’ expectations for continuous labor relationship is small.

However, the ‘workers who had been employed as monthly-paid workers for less than six months’ usually have an employment contract with an indefinite term and are likely to have high expectations for a continuation of the labor relationship. Therefore, dismissals of these workers are also unpredicted dismissals and there is a need for these workers to have time for transfer preparation or have protection against financial difficulties that derive from unemployment. In this respect, our Court decided that the provision at issue that excluded the ‘workers who had been employed as a monthly-paid worker for less than six months’ from the application of the advance notice of dismissal without any reasonable cause is a violation of the right to work and of the principle of equality.

So far I have briefly introduced some of the recent decisions of the Constitutional Court of Korea, regarding fundamental social rights among various crucial current issues.

As Korea achieved industrialization and democratization simultaneously, a strong will for substantive rule of law and the awareness for fundamental rights have significantly increased. Our Court has achieved remarkable results throughout the past 29 years of history and become the most trusted national institution in Korea to prove how it has strengthened the stance as the protector of the Constitution and fundamental rights.

In this setting, the Constitutional Court of Korea plans to take more interest in fundamental social rights as a major social issue, and actively respond to related matters.

Once again, on behalf of the Constitutional Court of Korea, let me congratulate the Constitutional Court of Mongolia on its 25th anniversary and wish for the continued success and prosperity for years to come.

Thank you very much for your attention.