12.Discrimination of Second-Generation Patients of Defoliant Exposure Case

[26-1(B) KCCR 16, 2011Hun-Ba228, April 24, 2014]

In this case, the Court, by a four to five vote, upheld the portion of Article 2 (4) of the Act on Assistance, etc. to Patients Suffering from Actual or Potential Aftereffects of Defoliants concerning Article 5 (3) 1 of the Act, stating that, among second-generation patients of defoliant exposure afflicted with spina bifida, providing assistance only to those who are children of patients suffering from actual, not potential aftereffects of defoliant exposure does not contradict the principle of equality and is thus not in violation of the Constitution. The opinion of five Justices who consider the provision at issue to be incompatible with the Constitution contends that it discriminates the second-generation patients of defoliant exposure depending on whether their parents are suffering from actual aftereffects of defoliant exposure and therefore violates the principle of equality.

Background of the Case

1. Sohn ○-Oh, the father of the complainant, fought in the Vietnam War where he was infected with seborrheic dermatitis and was thus registered as a patient suffering from potential aftereffects of defoliant exposure. The complainant, who is inflicted with spina bifida, submitted an application to register himself as a second-generation patient suffering from actual aftereffects of defoliant exposure (a child of a person who has been determined to be or registered as a patient suffering from actual aftereffects of defoliant exposure) to the head of the Incheon Patriots and Veterans District Office. On August 7, 2009, however, the complainant’s request for registration was denied, on grounds that “only the children of patients suffering from actual aftereffects of defoliant exposure are entitled to be second-generation patients of defoliant

exposure, so the complainant as the son of Sohn ○-Oh, who is a patient suffering from potential, not actual aftereffects of defoliant exposure, does not qualify as second-generation patients of defoliant exposure.”

2. In response, the complainant filed a complaint requesting revocation of the action denying his application for registration as a second- generation defoliant patient with the Incheon District Court (2009 KuDan 2228) and, with this case pending, filed for constitutional review of Article 2 (4) and Article 5 (3) of the Act on Assistance, etc. to Patients Suffering from Actual or Potential Aftereffects of Defoliants with the Constitutional Court. As the said request for registration was denied on August 23, 2011 (2010Ah42), the complainant filed the constitutional complaint in this case on September 16, 2011.

Subject Matter of Review

The subject matter of review in this case is whether the portion of Article 2 (4) of the Act on Assistance, etc. to Patients Suffering from Actual or Potential Aftereffects of Defoliants (hereinafter the “Defoliants Act” amended by Act No. 8793, Dec. 21, 2007) concerning Article 5 (3) 1 (hereinafter the “provision at issue”) conforms to the Constitution. The provision at issue is as follows:

Act on Assistance, etc. to Patients Suffering from Actual or Potential Aftereffects of Defoliants (amended by Act No. 8793, Dec. 21, 2007)

Article 2 (Definitions)

The definitions of terms used in this Act shall be as follows:

4.The term “second-generation patient suffering from actual aftereffectsof defoliants” means a child of a person who has been determined to be, and registered as, a patient suffering from actual aftereffects of defoliants pursuant to Articles 4 and 7, or a child of a person who is deceased that was recognized to be a patient suffering from actual aftereffects of defoliants pursuant to Article 8 (referring to a child who was conceived

and born on or after the date on which his/her parent served in the Vietnam War, served in an area adjoining the Southern Limit Line, ortook part in spraying defoliants, during a period between October 9, 1967 and July 31, 1970) who suffers from a disease under any subparagraphof Article 5 (3).

Opinion of 4 Justices (upholding constitutionality)

1. Conformity with Equality Principle

There was initially no assistance for the second-generation patients of defoliant exposure when the Defoliants Act was enacted, but the Act was improved to allow support for those afflicted with spina bifida among children of patients suffering from actual aftereffects of defoliant exposure and then to expand support also to include the children suffering from peripheral neuropathy and spondylopathy associated with paraplegia. Given this legislative history, whether to provide support for those experiencing potential aftereffects of defoliant exposure or the scope of assistance to second-generation patients of defoliant exposure are matters to be considered as part of the step-by-step process of institutional improvement. In this case, it is justifiable to confine the scope of beneficiaries given the financial capability of the state responsible for a wide range of support for the beneficiaries.

In this context, the Defoliants Act, which provides support for second-generation veterans by initially starting with the children of patients suffering from actual aftereffects of defoliant exposure whose correlation between the aftereffects and defoliant exposure has been determined, does not greatly fall short of rationality. In other words, there is good reason in the legislator’s judgment that there still is greater need to provide support to the patients suffering from actual aftereffects of defoliant exposure and their children than to those suffering from potential aftereffects with no established correlation with defoliant

exposure and their children. Therefore, the provision at issue is not in violation of the principle of equality before the law.

2. Protection of the Right to Decent Life

The complainant is entitled to a range of social security benefits under other laws such as the National Basic Living Security Act, the Act on Welfare of Persons with Disabilities, and the Medical Care Assistance Act initiated by the state. For this reason, even if the second-generation defoliant patients like the complainant are not granted support under the Defoliants Act, this fact alone is not sufficient to conclude that the state did not provide the least and objective level of protection in taking measures to guarantee decent life for citizens who lack the ability to maintain their livelihood due to physical disabilities, etc. or that the state evidently exceeded its discretion vested by the Constitution. Therefore, it is hardly the case that the provision at issue has infringed on the complainant’s right to decent life.

3. Protection of the Right to Pursue Happiness

The right to pursue happiness provided in Article 10 of the Constitution does not indicate the right of citizens to actively demand benefits required to pursue happiness from the state, but the right to liberty in the broad sense that citizens are entitled to act freely without being intervened by state powers in pursuing their happiness. However, the right of second-generation patients suffering from actual aftereffects of defoliant exposure to demand support from the state does not fall under the scope of the right to pursue happiness as one of the broad sense of liberty rights. Thus, it cannot be decided that the provision at issue infringes on the complainant’s right to pursue happiness.

Opinion of 5 Justices (constitutionally incompatible)

If a person who fought in the Vietnam War, although not having performed distinguished services by directly engaging in combat or other means, was exposed to defoliant chemicals in service and if it is confirmed that his or her children consequently developed certain illness, it is imperative that support is provided for the sacrifice made. Yet, epidemiological research conducted in the United States and Korea show that, biologically, the first generation should not necessarily suffer from actual aftereffects of defoliant exposure for their second generation to develop spina bifida associated with defoliant exposure but that the defoliant exposure of the first generation in itself is sufficient to result in such a disorder. This considered, there is essentially no difference among second-generation defoliant patients inflicted with spina bifida in that, regardless of whether or not their parents suffer from actual aftereffects of defoliant exposure, their parents were exposed to defoliants and that they developed illness whose correlation with defoliant exposure is established by epidemiological research results.

In terms of comparative law, in the U.S. or Australia, if the biological first generation has been exposed to defoliants in the Vietnam War or in the process of spraying defoliants, etc. and their children have developed spina bifida, the second-generation patients are granted support without having to meet the requirement that the first generation should suffer from actual aftereffects of defoliant exposure.

For this reason, it is difficult to find rationality in discriminating some of the second-generation patients afflicted with spina bifida, which has been determined to have correlation with defoliant exposure of the first generation, depending on whether their parents are suffering from actual aftereffects of defoliant exposure in terms of providing support.

Therefore, the standard of discrimination in this case of whether or not

the first generation is a patient suffering from actual aftereffects of defoliant exposure, implies undue consequential difference attributable to accidental circumstances and cannot serve as a rational reason for discrimination. Thus, the discriminatory treatment under the provision at issue which excludes spina bifida patients whose parents suffer from potential aftereffects of defoliant exposure does not comply with the principle of equality.

Yet, as it is necessary to preserve the unconstitutional provision for a certain period of time and apply it on a temporary basis until legal amendment takes place to correct the unconstitutionality, it is pertinent to declare the provision at issue incompatible with the Constitution.