Case on the Prohibition of Raising Objections Relating to the Sewol Ferry Disaster

[29-1 KCCR 305, 2015Hun-Ma654, June 29, 2017]

A. Background of the Case

In this case, the Constitutional Court ruled that the provisions of the Enforcement Decree of the Special Act on Remedy for Damage Caused by the April 16 Sewol Ferry Disaster, Assistance Therefor, Etc., which stipulate that victims, etc. of the Sewol ferry disaster who apply for damages are required to submit a written consent stating, "I pledge not to raise any objection whatsoever relating to the Sewol ferry disaster" (hereinafter referred to as the "No Objection Provision"), is in violation of the Constitution (hereinafter the "Special Act on Remedy for Damage Caused by the April 16 Sewol Ferry Disaster, Assistance Therefor, Etc." shall be referred to as the "Act on Assistance for Damage Caused by the Sewol Ferry").

After the Sewol Ferry capsized near Jindo-gun, Jeonnam Province on April 4, 2014, the National Assembly enacted the Act on Assistance for Damage Caused by the Sewol Ferry for the purpose of rapid relief, etc. The complainants, the parents of the deceased who were aboard the Sewol Ferry, filed a constitutional complaint against the provisions of the Act and subordinate statutes related to the assistance for the damage caused by the Sewol Ferry, including the No Objection Provision.

B. Summary of the Decision

The Constitutional Court ruled that the No Objection Provision infringes on the complainants’ freedom of general action, for the following reasons.

There are no general rules on the effects or obligations after the payment of damages, etc. in the Act on Assistance for Damage Caused by the Sewol Ferry, nor have they been delegated to any subordinate statute. Matters that can be prescribed by the Enforcement Decree upon delegation by the Act on Assistance for Damage Caused by the Sewol Ferry are only technical and procedural matters relating to the payment applications or payment themselves. Even if the complainants are given the opportunity to deliberate on their decisions on payment and the necessity to provide guidance on its legal significance and effect is recognized, the Enforcement Decree cannot be considered to have been given the authority to prohibit any objection relating to the overall Sewol ferry

disaster, beyond the scope of consent prescribed in Article 16 of the Act on Assistance for Damage Caused by the Sewol Ferry. Therefore, the No Objection Provision infringes on the freedom of general action by imposing an obligation not to raise any objection relating to the Sewol ferry disaster on the complainants, without any legal ground.

Justices Kim Chang-Jong and Cho Yong-Ho set forth a dissenting opinion that the No Objection Provision does not fall under the exercise of public power, because its purpose is merely to specifically explain and confirm the meaning and effect of judicial reconciliation established by Article 16 of the Act on Assistance for Damage Caused by the Sewol Ferry, and do not have the effect of newly restricting the complainants’ freedom of general action.

C. Aftermath of the Case

Reflecting this decision, the government amended attached Form 15 under Article 15 of the Enforcement Decree of the Act on Assistance for Damage Caused by the Sewol Ferry by Presidential Decree No. 28437 on November 14, 2017, and deleted the part stating, "I pledge not to raise any objection whatsoever relating to the Sewol ferry disaster."

On the other hand, there was criticism that the No Objection Provision was nothing but meaningless wording and cannot be seen as an exercise of public power (Kim Hae-Ryong,Whether Form 15 Attached to the Act on the Sewol Ferry Disaster is Unconstitutional, The Law Times, July 27, 2017).