Case on the ‘Act on Special Measures for National Integrity’ authorizing the infringement of the right to collective bargaining and right to collective action based onthe Presidential State Emergency Rights above the Constitution

[27-1(A) KCCR 226, 2014Hun-Ka5, March 26, 2015]

Requesting Court: Seoul High Court

Requesting Petitioner: Bae O-ByeongRepresented by Jihyang Law Firm(Attorney in Charge: Lee Sang-Hee, Kim Jin, Lee Eun-Woo, Nam Sang-Chul)

Underlying Case: Seoul High Court 2012Jaeno60 Violation of National Security Act

Decided: March 26, 2015

Holding

The part of Article 9 Section 1 of Article 11 Section 2 of the former ‘Act on Special Measures for National Integrity’ (enacted by Act No. 2312 on December 27, 1971 and before repealed by Act No. 3470 on December 17, 1981) violates the Constitution.

Reasoning

I. Introduction of the Case

The requesting petitioner, who was a branch manager of a labor union, had worked for a OO corporation located in OO-Dong OO, Guro-gu, Seoul from May 17, 1980 to the end of September, 1980.

The requesting petitioner exercised his right to collective bargaining and collective action without prior conciliation with the competent authorities around May 1980 through May 1981, despite the exercise of the right to collective bargaining and collective action was subject to the result of the prior consultation with competent authorities under the state of national emergency, declared on December 6, 1971. The petitioner was charged with the violation of the former ‘Act on Special Measures for National Integrity’ and sentenced to one year and six months in prison at Seoul High Court on April 14, 1982 (82No84, hereinafter referred to as ‘the decision subject to retrial’). The decision subject to retrial was confirmed by the Supreme Court on July 27, 1982 (82Do1397).

The petitioner applied for the retrial of the aforementioned decision at Seoul High Court on October 26, 2012 (2012Jaeno60), and also filed the motion to request for the constitutional review on Article 9 and Article 11 Section 2 of the former ‘Act on Special Measures for National Integrity (hereinafter, ‘Act on Special Measures’)’ (2013Chogi290). The requesting court granted the motion and requested the constitutional review on the aforementioned provision on March 13, 2014.

II. Subject Matter of Review

The subject matter of this case is whether the part of Article 9 Section 1 of Article 11 Section 2 of the former ‘Act on Special Measures for National Integrity’ (enacted by Act No. 2312 on December 27, 1971 and before repealed by Act No. 3470 on December 17, 1981) (hereinafter, ‘the Provision at Issue’) violates the Constitution. The Provision at Issue in this case is as follows:

Provision at Issue

The former Act on Special Measures for National Integrity (enacted by

Act No. 2312 on December 27, 1971 and before repealed by Act No. 3470 on December 17, 1981)

Article 11 (Punishment)

(2) Any person who violates the Order and Measure for National Mobilization stipulated in Article 5 of this Act, or who violates the Measure or Regulation stipulated by Article 6 Section 1 or 2, or Article 7 through 9 of this Act shall be imprisoned for more than one year but less than 7 years.

Related Provision

Article 9 (Restriction on the Right to Collective Bargaining and Others)

(1) In case of state of national emergency, workers’ rights to collective bargaining or collective action shall accord to the result of conciliation that should be asked for the competent authorities to conciliate in prior.

III. Reasoning of Request of Constitutional Review of the Requesting Court

The Constitutional Court has decided that the former Act on Special Measures for National Integrity (enacted by Act No. 2312 on December 27, 1971 and before repealed by Act No. 3470 on December 17, 1981, hereinafter ‘Act on Special Measures’) is unconstitutional for violating the constitutionalism and rule of law in that it authorized the President to exercise the national emergency right which is above the Constitution (92Hun-Ka18, June 30, 1994). According to the purpose of the aforementioned decision, the Provision at Issue should be declared to be unconstitutional.

IV. Judgment

A. Unconstitutionality of the Act on Special Measures

(1) Nature and Limitation of the National Emergency Rights

The national emergency right is a tool to promote the Constitution for preserving the Nation and maintaining the constitutional order in case of emergency where the Nation or constitutional order is threatened. Thenational emergency right should comply with the substantial requirements,post-controlling procedure and temporal limits that are prescribed by the Constitution in that its nature is an emergency alternative for the substantial crisis which cannot be managed with ordinary governmental powers (92Hun-Ka18, June 30, 1994; 93Hun-Ma186, February 29, 1996).

(2) Substances and Unconstitutionality of the Act on Special Measures

(A) Article 2 of the Act on Special Measures stated that “the President may declare the state of national emergency, after the consultation of the national security council and deliberation of the cabinet council, if an urgent measure is required for preserving the nation in order to manage the substantial threats to the national security in an effective way and to maintain the law and order.” Nonetheless, the right to declare the state of national emergency did not conform to any substantial requirement of national emergency rights (the financial and economic emergency action and order, emergency order, and promulgation of martial law) that are listed in Article 76 and 77 of the Constitution, implying that it created the ‘supra-constitutional’ national emergency right. The declaration of the state of national emergency of the President according to the Act on Special Measures did not satisfy the substantial requirements for the national emergency rights under the Constitution since the ‘extreme crisis’ of domestic and foreign situations, which might justify the creation of supra-constitutional national emergency right, did not exist at

the time of the enactment.

(B) The Constitution states that the President shall promptly notify the financial and economic emergency action and order, emergency order, or promulgation of martial law to the National Assembly and obtain its approval in case such actions are taken or orders are issued. In case no approval is obtained, the actions or orders shall lose their effects forthwith (Article 76 Section 3 and 4). When the President has proclaimed martial law, the President shall notify it to the National Assembly without delay; and the President shall comply when the National Assembly requests the lifting of martial law with the concurrent vote of a majority of the total members of the National Assembly (Article 77 Section 4 and 5). These provisions suggest that our Constitution requires the democratic post-controlling procedure in a strict way.

The national emergency rights should be exercised to overcome the substantial crisis of the constitutional order. Because of its nature and purpose, it should be exercised within the limited scope to remove the direct cause of the substantial crisis. In addition, the national emergency right should be exercised tentatively and temporarily from the perspective of term in that it is the exception of the constitutional order to promote the constitutional order and to overcome the extreme crisis.

The Act on Special Measures stated that “the declaration of the state of national emergency shall be lifted only when the President determined that the state of national emergency was disappeared.” (Article 3 Section 1) The declaration of the state of national emergency would be lifted only when the President admitted that emergent circumstances were resolved, according to his/her own decision. It implies that any democratic post-controlling procedure was not provided. The Act on Special Measures did not impose the duty to notify to the National Assembly or receive the consent of the National Assembly: Instead, it provided that the National Assembly might propose to lift the state of national emergency and the President might refuse such proposal for

special circumstances (Article 3 Section 2). Considering the temporary and provisional nature of the national emergency power, the general procedure designed by the Constitution should be promptly complied after lifting the state of national emergency. Nonetheless, the declaration of the state of national emergency according to the Act on Special Measures lasted for about 10 years. It reflected the temporal limits implied by the nature of the national emergency right was not observed in that the Act on Special Measures did not provide the effective post-controlling system for the declaration of the state of national emergency of the President. Therefore, Article 3 of the Act on Special Measures, stating the lifting of the state of national emergency, violates the Constitution for not providing the post-controlling procedure by the National Assembly and for infringing the temporal limits which is inherent in the national emergency right.

(3) Sub-Conclusion

The Act on Special Measures authorized the President to exercise the national emergency right which was not allowed under our Constitution. Article 2 and 3 of the Act on Special Measures, providing the declaration and lifting of the state of national emergency, would be unconstitutional for violating the constitutional requirements including the substantial requirements, post-controlling procedure and temporal limits. The other provisions of the Act on Special Measures, presuming the aforementioned provisions, are also unconstitutional (92Hun-Ka18, June 30, 1994). Therefore, the Provision at Issue violates the Constitution.

B. Unconstitutionality of the Provision at Issue

(1) The Constitution protects the right to organize, collective bargaining, and collective action of all workers, in principle (Article 33 Section 1 of the Constitution). The exception of these basic labor rights with regard to ‘public officers’ and ‘workers of a major defense

contractor stipulated by a statute’ is also provided by the Constitution (Article 33 Section 2 of the Constitution). Accordingly, three basic labor rights for workers, who are neither public officers nor workers of a major defense contractor, stipulated by a statute should be thoroughly protected under the Constitution. Despite three basic labor rights of workers may be partially restricted for the need of national security, maintenance of order, or public interests (the former part of Article 37 Section 2 of the Constitution), the Constitution does not allow the infringement of the essence of basic rights, as the complete denial of three basic labor rights (the latter part of Article 37 Section 2 of the Constitution).

(2) Article 9 Section 1 of the Act on Special Measures stated that “in case of state of national emergency, workers’ rights to collective bargaining or collective action shall accord to the result of conciliation that should be asked for the competent authorities to conciliate in prior.” The Provision at Issue prescribed that “Any person who violates the provision of Article 9 shall be imprisoned for more than one year but less than 7 years.” The Provision at Issue did not stipulate the scope of workers whose rights to collective bargaining and collective action would be restricted. Instead, it inclusively delegated the authorization of the exercise of the aforementioned rights to competent authorities, who would decide the result of conciliation; and it criminalized its violation, without prescribing substantial requirements, including conditions and limitations of the exercise of the rights to collective bargaining and collective action, in statutes. It would correspond to the unreasonable and complete prohibition of the right to collective bargaining and collective action of every worker, thereby infringing on the essential substance of three basic labor rights of our Constitution. Therefore, the Provision at Issue violates the Article 33 Section 1 and the latter part of Article 37 Section 2 of the Constitution.

V. Conclusion

Therefore, the Provision at Issue is unconstitutional as set forth in theholding. The decision was made with a unanimous opinion of participatingjustices.

Justices Park Han-Chul (Presiding Justice), Lee Jung-Mi, Kim Yi-Su, Lee Jin-Sung, Kim Chang-Jong, Ahn Chang-Ho, Kang Il-Won, Seo Ki-Seog and Cho Yong-Ho