Case on Safety Standards for Radioactive Materials

[27-2(B) KCCR 84, 2012Hun-Ma89 et al., October 21, 2015]

A. Background of the Case

In this case, the Constitutional Court held that the provisions of the Enforcement Decree of the Nuclear Safety Act that stipulate the limit of radiation dose (hereinafter referred to as the "Radiation Dose Limit Provisions") and the Public Notice on Standards and Specifications of Foods that stipulates the criteria for radiation of foods (hereinafter referred to as the "Public Notice on Radiation Criteria”) do not infringe on the complainants’ fundamental rights.

The complainants, who are Korean nationals or infants, filed this constitutional complaint, alleging that their right to life, right to health, etc. were infringed on the grounds that the Radiation Dose Limit Provisions are too relaxed and food for infants was not subject to stronger criteria.

B. Summary of the Decision

The Constitutional Court ruled that the Radiation Dose Limit Provisions and the Public Notice on Radiation Criteria could not be regarded as infringing on the complainants’ fundamental rights in violation of the state's duty to protect such rights, for the following reasons.

The question in this case was whether or not the state had fulfilled the duty to protect the lives and physical safety of people in relation to radiation exposure, and whether or not the state had taken the minimum protection measures was the criteria for examination.

Considering that the Radiation Dose Limit Provisions prescribe a dose limit equal to that recommended by the International Commission on Radiation Protection, and the state implements various measures to reduce citizens' exposure to radiation through quarantine of imported food and restrictions on imports of food produced in radiation hazard areas, it is difficult to say that the state did not take the minimum protection measures necessary to protect the people from radiation.

The Public Notice on Radiation Criteria stipulated that a person would not be exposed to radiation of 1 millisievert per year, if 10% of the food consumed in a year is assumed to be contaminated with the threshold amount of radioactive materials prescribed in the public notice. According to the annual food intake statistics of adults, even if 10% of the total food consumed is contaminated with

the threshold amount of radioactive iodine or radioactive cesium prescribed in the abovementioned public notice, the radiation dose resulting therefrom is estimated to be below the annual threshold. Considering that infants and young children continue to consume milk as their main nutrient source, if we calculate that 100% of the amount of milk consumed by infants (aged one year or less) and 100% of the amount of milk and 10% of other foods consumed by young children (aged one year to six years) are contaminated with radioactive iodine or radioactive cesium, the radiation dose resulting therefrom would still fall far short of the annual threshold.

If so, it is difficult to say that the criteria prescribed in the Public Notice on Radiation Criteria indicate that the minimum measures necessary to protect the lives and safety of the people have not been taken.

C. Significance of the Decision and Aftermath of the Case

In determining the thresholds that allow activities involving a particular risk, one must decide the acceptable level of risk. Since it is the responsibility of the legislators who take political responsibility to determine the level of tolerable risk, the Constitutional Court must evaluate the rationality of the process through which the level of risk is determined and evaluate whether the outcome is valid in light of current theories and science levels after such decision. This is why the Court has no choice but to review whether the minimum measures of protection have been provided, when conducting constitutionality review in such areas.

Following this decision, the government amended the Public Notice on Radiation Criteria to newly include infant milk formula, growth-phase milk formula, and ice milk as foods that should meet radiation criteria.