6.Case on Placing Limitation on Number of Transfer of Workplace by Foreign Workers

[23-2(A) KCCR 623,2007Hun-Ma1083, 2009Hun-Ma230·352(consolidated), September 29, 2011]

Questions Presented

1.A case which limitedly admits that foreigners are entitled to the freedom to choose workplace

2.Standard of review for the protection of foreigners' freedom to choose workplace

3.Whether Article 25 Section 4 of the former 'Act on the Employment etc. of Foreign Workers' (enacted by Act No. 6962 on August 16, 2003 and before revised by Act No. 9798 on October 9, 2009) which prevents foreign workers with employment permit from transferring their workplaces more than three times (hereinafter, the 'Instant Provision') infringes upon the freedom to choose workplace (negative)

4.Whether the Instant Provision violates the principle against blanket delegation (negative)

5.Whether Article 30 Section 2 of the Former Enforcement Decree of the Act (enacted by Presidential Decree No. 18314 on March 17, 2004 and before revised by Presidential Decree No. 22114 on April 7, 2010, hereinafter, 'the Enforcement Decree') which allows only one additional transfer (hereinafter the 'provision of the Enforcement Decree') violates the principle of statutory delegation (negative)

6.Whether the provision of the Enforcement Decree infringes upon the freedom to choose workplace (negative)

Summary of Decisions

1.In this case, among the types of freedom of occupation, the freedom to choose workplace is at issue. As the freedom to choose workplace is closely related to the right to pursue happiness as well

as human dignity and value, it should not be simply regarded as a right reserved exclusively for citizens but one vested in all mankind and therefore, foreigners may enjoy the freedom to choose workplaceeven if limitedly so. Given the fact that a status as legitimate workforcein our society has been already granted to the complainants who lawfully obtained employment permit, legally entered Korea and have been maintaining regular relationships in life in our country, the complainants should be regarded as being entitled to the freedom to choose workplace.

2.When introducing a system for accepting foreign workforce, the legislature is endowed with a wide range of legislative discretion to constitute the contents of the system on the basis of a policy decision in consideration of the current situation of the local labor market and economy, national security and maintenance of social order. Therefore, unless such a legislation is clearly irrational or unfair, such legislative decision should be respected, and foreign workers' freedom to chooseworkplace can finally be materialized only after the legislature concretelyprescribes the contents of the system by enacting laws on the basis of such a policy decision.

3.The Instant Provision was enacted to protect local workers' employment opportunities by limiting foreign workers from imprudentlytransferring their workplace and to contribute to the balanced developmentof national economy through effective supply and demand of human resources for small or medium sized companies. Further, the Instant Provision allows foreign workers to transfer workplaces up to three times during the three years of their stay in Korea for certain reasonsstipulated in the Act and an additional transfer is possible if thereis any exceptional ground specified by the Enforcement Decree. Therefore, the Instant Provision does not seem clearly unreasonable beyond the extent of discretion granted to the legislature, and does not infringe upon the complainants' freedom to choose workplace.

4.As the decision whether to increase the number of possible workplace transfers should be made in consideration of many aspects of the local labor market such as employment opportunities for local

workers and the demand and supply of human resources for small or medium sized companies, this case falls into a case where therequirements of concreteness and clarity for delegated rule-making needto be relaxed. Also, considering the legislative purposes and overall intent of the Act, it is possible to predict that matters to be specified in the Presidential Decree by the delegation of the proviso of the Instant Provision would be the specific conditions under which an additional transfer of workplace is exceptionally allowed and the possible number of such additional transfers. Therefore, the proviso of the Instant Provision does not violate the principle against blanket delegation.

5.The proviso of the Instant Provision stipulates "Provided, that the foregoing sentence shall not apply if there is any inevitable reason specified by Presidential Decree." But given the facts that unless additional transfers are unlimitedly allowed, delegation of the possible number of additional transfer to the Enforcement Decree is naturally required; and that pursuant to the principle of presumption of constitutionality, the proviso of the Instant Provision can be interpreted as 'Provided, that … if there any inevitable reason as the Presidential Decree stipulates,' which conforms to the Constitution, it is proper to consider that the Instant Provision also delegates the relevant specifics related to the possible number of additional transfer to be determinedby the Enforcement Decree. Therefore, the provision of the EnforcementDecree does not violate the principle of statutory reservation, as regulating matters delegated to it by its parental Act without deviating from the scope of delegation.

6.Given the facts that the provision of the Enforcement Decree was provided to allow an extra transfer of workplace, in addition to the Instant Provision which allows foreign workers to transfer their workplaces up to three times during the three years of their stay in Korea; that the provision of the Enforcement Decree extensively stipulates almost all possible grounds for the additional transfer of workplace for involuntary causes; and that the systemic management of foreign workers for maintaining national security and social order and a period for adjustment to the culture and language for foreign

workers are required, it can be concluded that the provision of the Enforcement Decree is neither excessively arbitrary without any reasonable cause nor in violation of the complainants' freedom to choose workplace.

Concurring Opinion and Dissenting Opinion by Justice Mok, Young-Joonand Justice Lee, Jung-Mi

1.As the right to choose workplace is more related to the freedom reserved for 'citizens' rather than to 'all human beings', it does not extend to foreign nationals. But among the types of general freedom of action, the freedom of employment contract, which is closely related to foreign nationals' survival and human value and dignity, extends to foreign nationals. In this regard, since the complainants'freedom to enter a new employment contract after canceling the formerone is limited by the Instant Provision and the provision of the Employment Decree, the complainants are entitled to the freedom of employment contract.

2.As the Instant Provision was enacted to protect local workers'employment opportunities and to contribute to the balanced developmentof national economy through effective supply and demand of human resources for small or medium sized companies, its legislative purposeis legitimate and the means to achieve the purpose is appropriate. Also,considering the fact that the Instant Provision allows foreign workers to transfer workplace up to three times during the three years of their stay in Korea and an additional transfer is possible if there is any exceptional grounds specified by the Enforcement Decree, it neither violates the principle of least restrictive means nor breaks the balance between competing interests.

3.The Instant Provision delegates the Presidential Decree to stipulate the specific details of 'inevitable reasons' for which the limitation on the number of workplace transfer does not apply. As the provision of the Enforcement Decree not only stipulates the details of the 'inevitable reasons' delegated by the Act but also limits the number of additional transfer to 'one time' even when a case falls into one of the

inevitable reasons specified in the Enforcement Decree, it violates theprinciple of statutory reservation, deviating from the scope of delegation.

Also, the provision of the Enforcement Decree includes transfers for which foreign workers are not responsible in the count of possible workplace transfers, such as unavoidable transfer due to the financialproblem of the workplace. And as it allows only one transfer inany case without exception, it fails to observe the principle of least restrictive means. Further, the provision of the Enforcement Decree also fails to keep the balance between the protected public interest and the limited private interests.

Therefore, the provision of the Enforcement Decree infringes upon the complainants' freedom of employment contract.

Dissenting Opinion by Justice Song, Doo-Hwan on the Provision of the Enforcement Decree (Opinion of Unconstitutionality)

Even foreigners, if they have lawfully obtained employment permit, legally entered Korea and have been maintaining a regular life in our country, should be regarded as the bearers of the freedom to choose workplace as long as lawfully staying in Korea, since they should be entitled to enjoy the freedom to choose means to make a living and maintain regular relationship in life while guaranteed human dignity and value. Therefore, the complainants' freedom to choose workplace should be recognized and the provision of the Enforcement Decree infringes upon the complainants' freedom to choose workplace, in violation of the principle of statutory reservation and the principle against excessive restriction.

Dissenting Opinion by Justice Kim, Jong-Dae (Opinion of Dismissal)

Considering 1) the language of our Constitution which clearly designates 'citizens' as the holders of fundamental rights protected by the Constitution; 2) the historical background of the enactment of the Constitution where it was decided that foreign nationals should not be considered as the bearers of fundamental rights protected by our

Constitution, but their legal status should be guaranteed by internationallaws and treaties; 3) the basic relationship among state, Constitution and basic rights; 4) the requirement that the bearers of fundamental rights should be same as the bearers of basic duties under the Constitution; 5) the principle of reciprocity in the status of foreigners under the Constitution; 6) the unreasonableness in deciding whetherthe complainants are the bearers of the fundamental right after reviewingwhether the basic right allegedly infringed is a right reserved for all human beings or only for citizens, in which the standard of review is unclear and the order of judgment is reversed; and 7) the sufficient guarantee of foreign nationals' status by international laws and treaties, it is reasonable to consider that foreigners are not entitled to all fundamental rights under the Constitution.

But, there remains possibility that foreigners who entered our country and have been living a regular life as Koreans do can be exceptionally considered the bearer of a fundamental right, by practically treating them as Korean citizens.

In conclusion, as the complainants in this case are not the bearers of the fundamental right, they have no standing in a constitutional complaint. Thus, this constitutional complaint should be dismissed for non-justiciability.

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Parties

Complainants

1. Suha ○○ (2007Hun-Ma1083)

2. F.M. Zainal (2009Hun-Ma230)

3. T.L.Macatangay (2009Hun-Ma230)

4. B.Q. Duan (2009Hun-Ma230)Representative of the Complainants: Jung, Jung-Hoon and two others

Sub-agent: Kang, Ji-Hyun and four others

5. N.V. Dan (2009Hun-Ma352)

Representative: Lee, Jung-Hyun

Holding

Complainants' constitutional complaint is denied.

Reasoning

I. Introduction of the Case and Subject Matter of Review

A. Introduction of the Case

1. 2007Hun-Ma1083

(A)Complainant is a foreign worker of Indonesian nationality. Afterreceiving a legitimate employment permit pursuant to the 'Act onthe Employment etc. of foreign workers' (hereinafter the 'Act'), thecomplainant entered Korea on July 22, 2005 and started to work thereafter.

(B)Article 25 Section 4 of the Act prevents foreign workers withemployment permit from transferring their business or place of business(hereinafter, 'workplace') more than three times and thecomplainant transferred his workplace three times following the proceduresstipulated in the aforementioned Article 25 of the Act.

(C)The employer of the workplace, where the complainant had been working since May 25, 2007 after the third transfer, notified the complainant of his intention to cease the employment after June 25, 2006 due to financial and management difficulties. The complainant visited the Job Center at Ansan City with the employer to consult his transfer of workplace, but was finally notified that due to Article 25 Section 4 of the Act and Article 30 Section 2 of the Enforcement Decree, no additional transfer was possible.

(D)Hereupon, the complainant filed this constitutional complaint on September 21, 2007, arguing that Article 25 Section 4 of the Act and Article 30 Section 2 of the Enforcement Decree which prevent foreign workers with employment permit from transferring their workplace more than three times in principle and allow only one additional transfer if there is any exceptional ground for which the foreign workers are not responsible, are unconstitutional, infringing upon his freedom to choose workplace, right to work, etc.

2. 2009Hun-Ma230

(A)Complainants are foreign workers from Indonesia, the Philippinesand Vietnam. After receiving legitimate employment permits pursuant to the Act, they entered Korea on November 7, 2006, February 28, 2006 and July 5, 2007, respectively, and started to work thereafter.

(B)Article 25 Section 4 of the Act prevents foreign workers with employment permit from transferring their workplaces more than three times and the complainants transferred their workplaces three timesfollowing the procedures stipulated aforementioned Article 25 of the Act.

(C)After the complainants transferred workplaces three times, their resignations were processed on grounds of dismissal, termination of employment contract, etc., and due to Article 25 Section 4 of the Act and Article 30 Section 2 of the Enforcement Decree, they became unable to change their workplaces any more.

(D)Hereupon, the complainants filed this constitutional complaint on April 27, 2009, arguing that Article 25 Section 4 of the Act and Article 30 Section 2 of the Enforcement Decree which prevent foreign workers with employment permit from transferring their workplaces more than three times in principle and allow only one additional transfer if there is any exceptional ground for which the foreign workers are not responsible, are unconstitutional, infringing upon their freedom to choose workplace, right to work, etc.

3. 2009Hun-Ma352

(A)Complainant is a foreign worker whose nationality is Vietnamese.After receiving legitimate employment permit pursuant to the Act, the complainant entered Korea on May 25, 2008 and started to work thereafter.

(B)Article 25 Section 4 of the Act prevents foreign workers with employment permit from transferring their workplaces more than three times and the complainant transferred his workplace three timesfollowing the procedures stipulated aforementioned Article 25 of the Act.

(C)After the complainant transferred his workplace three times, his resignation was processed on the ground of termination of employment contract (dismissal for managerial reasons) and due to Article 25 Section 4 of the Act and Article 30 Section 2 of the Enforcement Decree, no additional transfer became possible.

(D)Hereupon, the complainant filed this constitutional complaint on June 30, 2009, arguing that Article 25 Section 4 of the Act and Article 30 Section 2 of the Enforcement Decree which prevent foreign workers with employment permit from transferring their workplaces more than three times in principle and allow only one additional transfer if there is any exceptional ground for which the foreign workers are not responsible, are unconstitutional, infringing upon his freedom to choose workplace, right to work, etc.

B. Subject Matters of Review

[Provisions at Issue]

Former Act on the Employment, etc. of Foreign Workers (enacted by Act No. 6962 on August 16, 2003 and before revised by Act No. 9798 on October 9, 2009)

Article 25 (Permission for Transfer to Another Business or Place of Business) (4) Any foreign worker's transfer to another business or place of business under paragraph (1) shall not, in principle, exceed

three times during the period of time prescribed in Article 18 (1): Provided, That the foregoing sentence shall not apply if there is any inevitable ground specified by Presidential Decree.

Former Enforcement Decree of the Act on the Employment, etc. of Foreign Workers (enacted by Presidential Decree No. 18314 ON March 17, 2004 and before revised by Presidential Decree No. 22114 on April 7, 2010)

Article 30 (Permission for Transfer to Another Business or Place of Business) (2) pursuant to the proviso of Article 25 Section 4 of the Act, the head of employment security office may allow additional transfer to another business or place of business only once when a foreign worker transfers due to the causes falling under Article 25 Section 2 Item 2 to Item 4 of the Act.

[Related Provision]

(Intentionally omitted)

II. Arguments of Complainants and Related Bodies

(Intentionally omitted)

III. Review on Justiciability

A. Foreigner's entitlement to basic rights

1.In an earlier decision, the Court stated that a constitutional complaint under Article 68 Section 1 of the Constitutional Court Act can only be filed by a bearer of fundamental rights, and ruled that a 'citizen' or a 'foreigner' who has a status similar to that of our citizencan be s bearer of fundamental rights (6-2 KCCR 477, 480, 93Hun -Ma120, December 29, 1994). In other words, foreigners are entitled to fundamental rights considered as 'human rights' such as human dignity and worth and the right to pursue happiness, but not rights just reserved for citizens, and therefore, foreigners can be recognized as bearers of fundamental rights considered human rights inprinciple (see 13-2 KCCR 714, 724, 99Hun-Ma494, November 29, 2001).

2.As such, foreigners are not unlimitedly entitled to all fundamentalrights but limitedly entitled to some fundamental rights pertainingto 'human rights'. Therefore, we hereby first clarify what kinds of fundamental rights are limited by the Instant Provision and whether foreigners can be recognized as bearers of such fundamental rights in terms of the nature of the rights concerned.

B. Whether complainants are bearers of fundamental right

1. Determination of fundamental rights concerned

Complainants argue that their right to work and freedom of occupationare infringed by the Instant Provision.

As the right to work includes 'a right to have a place to work' and 'a right to have reasonable working environment,' the latter coveringthe rights to demand a healthy working environment, just compensationfor labor, guarantee of reasonable working conditions, etc. (See 19-2 KCCR 297, 305, 2004Hun-Ma670, August 30, 2007), the Instant Provision which limits the number of transfer of workplace does not limit the aforementioned right to work.

Meanwhile, a freedom of occupational choice refers to a freedom to freely choose, engage in and change one's occupation, including the right to choose workplace where an individual can conduct its occupational activities (1 KCCR 329, 336, November 20, 1989; 14-2 KCCR 668-667).

The right to choose workplace means that anyone be offered a practical opportunity to be employed in the field of occupation of his or her choice or can freely choose or decide to continue or terminate already created labor relationships without the interference of the state(14-2 KCCR, 668, 678, 2010Hun-Ba50, November 28, 2002).

Since the Instant Provision prescribes the maximum number of transfer of workplace, thereby limiting foreign workers' freedom to

terminate already created labor relationships (leaving current jobs, in the instant case), it limits the freedom to choose workplace among the types of the freedom to choose one's occupation.

2.Whether a foreigner is entitled to the freedom to choose one's occupation

Freedom of occupation includes both the freedom to choose one's occupation, which is freedom to select an occupation or the specific field of occupation of one's choice, and the freedom to conduct the occupation one has already chosen in a way he/she wants to. Suchfreedoms are closely related to the right to pursue happiness guaranteedby Article 10 of the Constitution as it is the essential means for satisfying the basic demands of everyday life and to develop one's personality (9-2 KCCR 537, 543, 96Hun-Ma109, October 30, 1997; 10-2 KCCR 283, 307-308, 96Hun-Ma246, July 16, 1998).

Also, the freedom of occupation is one of the elements constituting the social market economy order, as a state's social and economic orders are created by an individual's conducting of occupation of one's choice (13-1 KCCR 1441, 1458, 2001Hun-Ma132, June 28, 2001).

Since the freedom to choose workplace at issue in this case, among the types of the freedom of occupation, is closely related to human dignity and worth and the right to pursue happiness, it should be considered as a right reserved for all human beings, not just a right reserved only for citizens. Given the nature of the right, foreigners should not be absolutely denied the freedom to choose workplace as in the case of political rights, social basic rights or the freedom to enter the territory of a state, but should be entitled to the freedom to choose workplace, even if limitedly so (See 12-2 KCCR 168, 183, 97Hun-Ka12, August 31, 2000).

Meanwhile, as the matter of recognizing foreigners as bearers of basic rights and the degree of limiting that basic right are separate problems, recognizing that foreigners are entitled to the freedom to choose workplace does not necessarily mean that they also receive the

same degree of protection in relation to the freedom to choose occupation as our citizens.

3.Whether the complainants can be recognized as the bearers of the freedom to choose workplace

The complainants in this case are foreign workers who legitimately entered Korea with employment permits pursuant to the Act and have been maintaining a regular life in our country. The complainants specifically argue that their right to freely transfer workplace, which was commenced upon legitimate employment permit pursuant to the Act, should be recognized. As long as it is presupposed that they have been conferred status as lawful workforce in our society, having legitimately entered Korea with employment permit pursuant to the Act and maintaining regular life in our country, the freedom to choose or decide to continue or terminate already created labor relationship without state's interference in the area of occupation has the character of a right conferred to all human beings which the complainants with foreign nationalities may also enjoy.

Accordingly, considering the aforementioned nature of the freedom to choose workplace, the complainants shall be recognized as being entitled to the freedom to choose workplace.

Meanwhile, the separate opinion mentioned infra criticizes that the requirements of 1) foreign workers' legitimate entry into Korea with employment permit and 2) the maintenance of regular life in our country in order to be entitled to the freedom to choose workplace for foreigners show that foreigner's freedom to choose is not recognized as a constitutional right guaranteed by the Constitution, but as a mere legal right under the Act. But, the freedom to choose workplace, among thetypes of the freedom of occupation, should be regarded as a fundamentalright guaranteed by the Constitution which holds the nature of a right conferred to all human beings. Also, the requirement of legitimate entry with employment permit and the maintenance of regular life in our country are simply prerequisites for foreigners to enjoy the constitutional right of the freedom to choose workplace and such legal limitations do

not necessarily change the nature of the freedom to choose workplace from a constitutional right to a legal right.

IV. Review on Merits

A. Review of Employment Permit System for Foreign Workers

1. Rationale for adoption of the employment permit system

Around October 1991, when 'Guidelines for Issuing Visa to Foreign Trainees of Industrial Technology (Ministry of Justice Directive No. 255)' was enacted, foreigners started to enter Korea and provide labor. Since then, foreign laborers have entered our country in the name of trainees of industrial technology and provided simple labor, but due to their status as trainee, they were not sufficiently protected by the Labor Standard Act, thereby forcefully receiving unfair wage and treatment, and finally becoming illegal aliens after leaving their workplaces in many cases. Accordingly, many social and economic problems, such as disturbances in the labor market, shortage of labor for small and medium sized companies, infringement of foreign labors' human rights, and loss of national reputation, ensued. To deal with these problems, the 'Act on the Employment etc. of Foreign Workers,' the main content of which is the introduction of 'foreign worker employment permit system' (hereinafter, 'employment permit system'), making it possible for employers to legally hire foreign workers in simple labor and making the government directly supervise foreign workers, was legislated on August 16, 2003 and became effective on August 17, 2004.

2. Main contents

The main contents of the Act are as follows (see 21-1(A) KCCR 659, 673-675, 2006Hun-Ma1264, September 24, 2009):

First, the Act is mainly applicable to non-professional and visiting foreign workers, focusing on foreign labor force with low skills (Article 2 and Article 12 Section 1 of the Act).

Secondly, the Act requires an employer who desires to employ foreign workers to make an 'effort to recruit citizens' as a necessary condition for issuing employment permit for foreign workers (Article 6 of the Act), and the Act also makes it possible to limit the size and types of business eligible for employment of foreign workers in consideration of the demand and supply of manpower in the local labor market (Article 8 Section 2 of the Act). That is, lack of manpower in the local market should be solved by giving priority to hiring local idle manpower, including senior or female workers while complementarily utilizing foreign manpower.

Third, by preventing foreign workers from working as employees for more than three years and from working again in Korea before the lapse of six months from the date of their last departure from the country, the Act stipulates a short-term period of employment for foreign workers in order to prevent the possible disorder caused by the social costs of marriage, childbirth and child support as well as the disturbance in local labor market due to foreign worker's long term stay in Korean society (Article 18 of the Act).

Fourth, the Act recognizes foreign workers who are employed according to Act as legal 'workers,' in contrast to trainees of the past, by clearly stipulating a provision that prohibits discrimination against them (Article 22 of the Act), and requiring an employer who desiresto employ foreign workers to draw up an employment contract (Article9 Section 1 of the Act).

B. Review on the Instant Provision

1. Matters at issue

The complainants argue that the Instant Provision infringes on theirright to work, freedom of occupation and the right to pursue happinessby imposing a ceiling on the number of possible transfer of workplace, thereby placing them in a situation where they are forced to work against their will, and violates the principle against blanket delegation since the proviso of the Instant Provision which delegates

the relevant specifics of exception to the three time rule to the Enforcement Decree fails to give any direction to predict the possible number and reasons of additional transfer to be determined by the Enforcement Decree.

As we have reviewed, however, imposing a ceiling on the number of possible transfer of workplace limits the complainants' freedom to choose workplace among the types of the freedom of occupation, not their right to work. And in a case where 'occupation' becomes an issue as a right to be protected and both the freedom of occupation and the right to pursue happiness are claimed to be infringed, the constitutional review on the infringement of the freedom of occupation takes priority over the review on the infringement of the right to pursue because the right to pursue is a general right and the freedom of occupation is a specific freedom (128 KCCG 589, 595, 2007Hun-Ba3, May 31, 2007; 21-2(A) KCCR 375, 379, 2007Hun- Ma1037, July 30, 2009). Therefore, we will not review as to whether the Instant Provision infringes on the right to work and the right to pursue happiness. In the following, we examine whether the Instant Provision infringes on the complainants' freedom to choose workplace, in violation of the principle against blanket delegation or the principle against excessive restriction.

2. Whether the freedom to choose workplace is infringed

(A) Standard of review

The legislators are endowed with wide discretion in providing the contents of a system for accepting foreign workers based on policy decisions considering local labor market conditions, national economic situation, national security and maintenance of order. Therefore, unless the contents of such legislation are unreasonable and irrational, the legislators' decision should be respected and foreign workers' freedom to choose workplace can be concretized only after the legislature specifically prescribes the contents of the system through enacting law based on such policy decisions. So, in this case where the legislators prescribe a statutory provision that places limitation on the possible

number of transfer of workplace, such a statutory provision cannot be declared unconstitutional unless it is excessively arbitrary without reasonable ground.

(B) Whether the freedom to choose workplace is infringed

The Instant Provision was enacted to protect local workers' employment opportunities by limiting foreign workers from imprudently transferring their workplaces and to contribute to the balanced development of national economy through effective supply and demand of human resources for small or medium sized companies. Further, the Instant Provision allows foreign workers to transfer workplaces up to three times during the three years of their stay in Korea for certain reasons stipulated in the Act and an additional transfer is possible if there is any exceptional ground specified by the Enforcement Decree. Specially, as foreign workers who find employment in Korea pursuant to the employment permit system are mostly engaged in simple labor, it is clear that they are in competition with citizens who belong to the economically vulnerable groups engaged in simple labor. In this sense, relaxing the limits on foreign workers' transfer of workplace would result in the deterioration of working conditions as well as adverse effects on local workers' employment opportunities.

Further, the Act does not place an absolute ban on foreign workers' transfer of workplace, but permits their transfer within a certain scope, by allowing them to transfer workplace up to three times during the three years of their stay in Korea if there is a certain reason falling under the cases enumerated in Article 25 Section 1 of the Act and the Instant Provision; and provides a chance for an additional transfer if there is any exceptional ground specified by the Enforcement Decree. As such, the Instant Provision, while achieving the legislative purpose to protect the employment opportunity of local workers and to alleviate labor shortage in small and medium sized businesses, sufficiently fulfils its duty to protect foreign workers by preventing forced labor that may possibly be caused by an absolute ban on their transfer of workplace as the complainants contend. Therefore, the Instant Provision does not seem clearly unreasonable beyond the extent

of discretion granted to the legislature, and does not infringe upon the complainants' freedom to choose workplace.

3. Whether the principle against blanket delegation is violated

(A)Article 75 of the Constitution, which stipulates that "the Presidentmay issue presidential decrees concerning matters delegatedby statutes with the scope specifically defined and also matters necessaryto enforce statutes" provides a constitutional ground for delegated legislation but clarifies that a general and all-inclusive delegation shall not be allowed as it limits matters to be legislated by a presidential decree to 'matters delegated to Act with the scope specifically defined.' The extent of detail and level of clarity required for a proper delegation depend on the nature and substance of the regulation in question, for instance, in the case of penal regulations or tax regulations which tend to directly restrict or infringe people's fundamental rights, delegations should be highly detailed and very clear and therefore the requirements and scope of such delegation should be more stringently regulated than that of legislation stipulating social benefit administration. On the other hand, when the object of regulation is extremely varied or when regulation has to be modified constantly, the required level of detail and clarity would be relatively less stringent (14-1 KCCR 579, 585, 2000Hun-Ma8, June 27, 2002).

(B)Delegation of law-making power must be limited to a matterconcretely and individually defined. A uniform standard is not possible,as the scope of delegation can be different depending on the types and nature of the matters to be regulated by laws, but at least the basic contents and scope of the matter to be regulated by a presidential decree should be specified in detail in the parental statute so that anyone may predict the general outline of things to be regulated by the presidential decree. Whether it is possible to predict the content in outline should be discerned after systemically reviewing the related provisions as a whole, and should not be merely based on the delegating provision itself (12-2 KCCR 387, 394, 98Hun-Ba104, December 14, 2000).

(C)The main text of the Instant Provision stipulates that a foreign worker cannot transfer his/her workplace more than three times in principle. But according to its proviso, such a limitation shall not apply if there is any inevitable ground specified by the presidential decree, thereby delegating the details of inevitable grounds for an additional transfer to the presidential decree.

In other words, the proviso of the Instant Provision can be regarded as legislative consideration to guarantee more protection for foreign workers' fundamental rights beyond the main text, by allowing an additional transfer of workplace in an inevitable situation. In this case, it is not easy to uniformly stipulate all the conditions and grounds for additional transfer as an exception to the principle stipulated in themain text of the Instant Provision, because such conditions and groundsshould be decided as a matter of policy after considering the current local market situations such as local workers' employment opportunity and demand and supply of manpower for small and medium sized companies. Therefore, we find that this delegation falls under the case where the required level of detail and clarity should be relatively less stringent as the object of regulation is extremely varied or when the regulation has to be modified constantly.

Also, considering the legislative purposes and overall intent of the Act, it can be predicted that the matters to be determined by thepresidential decree are the details of inevitable grounds for an additionaltransfer and the possible number of the additional transfer.

Meanwhile, the definition of 'inevitable' is defined in the Korean dictionary as follows: 'unable to avoid, evade or escape against one's will.' If so, 'inevitable ground' stipulated in the proviso of the Instant Provision pertains to a case in which a foreign worker finds no other alternatives but to change workplace, or in other words, has to transfer workplace against his/her will due to circumstantial changes for which he/she is not responsible, and it is clearly anticipated that related provisions in the presidential decree will be provided within this boundary.

Accordingly, the provision of the Enforcement Decree stipulates that "pursuant to the proviso of Article 25 Section 4 of the Act, the head of employment security office may allow additional transfer to anotherbusiness or place of business only once when a foreign worker transfersdue to causes falling under Article 25 Section 2 Item 2 to Item 4 of the Act."

Therefore, the proviso of the Instant Provision does not violate the principle against blanket delegation.

4. Sub-conclusion

The Instant Provision neither violates the principle against blanket delegation, nor infringes on the complainants' fundamental rights.

C. Review on the Provision of the Enforcement Decree

1. Whether the principle of statutory reservation is violated

Article 75 of our Constitution provides that "the President may issue presidential decrees concerning matters delegated to him/her by statutes with the scope specifically defined," thereby establishing a basis for statutory delegation and expressly indicating the scope and limit of statutory delegation. Accordingly, the contents of delegated rule-making should be decided within the limited scope of matters to be delegated and the objectives of delegation set by the parental statute. A delegated rule-making that violates this scope and limit deviates fromthe scope of delegation and therefore, violates the principle of statutoryreservation as it is a regulation not based on statute (see 22-1 KCCR 97, 106-107, 2007Hun-Ma910, April 29, 2010).

While the proviso of the Instant Provision, as the parental statute of the provision of the Enforcement Decree in this case, provides that "[p]rovided, that the foregoing sentence shall not apply if there is any inevitable ground specified by Presidential Decree," the provision of the Enforcement Decree allows additional transfer to another business or place of business only 'once,' as well as prescribes the specific contents of the "inevitable ground." So, there can be an issue as to

whether the part of 'allowing additional transfer … only once' deviates from the scope of statutory delegation.

Given the facts, however, that it is reasonable to delegate the possible number of additional transfer to the enforcement decree unless additional transfer is unlimitedly allowed; and that pursuant to the principle of presumption of constitutionality, the proviso of the Instant Provision which stipulates that "[p]rovided, that the foregoing sentenceshall not apply if there is any inevitable ground specified by PresidentialDecree" can be interpreted in conformity with the Constitution as "[p]rovided that … if there is any inevitable reason as the Presidential Decree stipulates," it is proper to consider that the Instant Provision also delegates the relevant specifics related to the possible number of additional transfer to the enforcement decree.

Therefore, as the provision of the Enforcement Decree in this case prescribes specific contents of the inevitable grounds and the number of possible transfer within the scope of delegation by the Act as the parental statute, it does not violate the principle of statutory reservation.

2. Whether the freedom to choose workplace is infringed

As reviewed above, legislators are endowed with wide discretion in providing the contents of a system for accepting foreign workers and the provision of the Enforcement Decree prescribing the contents of employment permit system can be declared unconstitutional only when it is clearly irrational or unfair without reasonable ground.

The complainants argue that the provision of the Enforcement Decreeviolates their freedom to choose workplace, etc., as it prescribes extremelystringent requirements for exceptionally allowing additional transfer and grants only one additional transfer.

However, given the facts that the parental statute, or the Instant Provision in this case, does not infringe on foreign workers' freedomto choose workplace as reviewed; that the provision of the EnforcementDecree was enacted to allow additional transfer in addition to the

Instant Provision which grants foreign workers to transfer workplace for three times during their three-year stay in Korea; that the "causes falling under Article 25 Section 2 Item 2 to Item 4 of the Act" stipulated in the provision of the Enforcement Decree as a condition for additional transfer of workplace can be considered as including almost all possible causes in which foreign workers transfer their workplaces for involuntary causes; and that it is necessary to considerthat foreign workers need a period of cultural and linguistic adjustmentand a systemic management of foreign workers is required for the maintenance of national security and order, granting just one additional transfer of workplace by the provision of the Enforcement Decree cannot be considered as excessively arbitrary without any reasonable ground. Therefore, the provision of the Enforcement Decree does not violate complainants' freedom to choose workplace.

V. Conclusion

For the above stated reasons, it is so ordered that the constitutional complaint is rejected as set forth in the holding. All justices joined this opinion, with the exception of the concurring opinion and partial dissenting opinion of Justice Mok, Young-Joon and Justice Lee, Jung-Mi (Part VI), the dissenting opinion of Justice Song Doo-Hwan with respect to the provision of the Enforcement Decree (Part VII) and the dissenting opinion (opinion of dismissal) of Justice Kim, Jong-Dae (Part VIII).

VI.Concurring Opinion and Dissenting Opinion of Justice Mok, Young-Joonand Justice Lee, Jung-Mi

A. Concurring Opinion with respect to Justiciability

Justice Lee, Kang-Kook, Justice Min, Hyeong-Ki, Justice Lee, Dong-Heb,Justice Song, Doo-Hwan and Justice Park, Han-Chul (hereinafter, 'the opinion of five Justices') decide that the constitutional complaint is justiciable as the complainants are regarded as the bearers of the freedom to choose workplace. We, however, do not agree with the opinion which recognizes that the complainants are entitled to the

freedom to choose workplace. Rather, our conclusion is that this constitutional complaint is justiciable because the complainants are entitled to the right to employment contract. Our concurring opinion is as follows:

1.Freedom of employment contract and entitlement to protection thereof

The right to pursue happiness guaranteed under Article 10 of the Constitution, when concretely expressed, includes the general freedom of action and the right to free development of personality. As the freedom of contract is derived from the general freedom of action included in the right to pursue happiness under the Constitution, it is also protected by the right to pursue happiness (10-2 KCCR 621, 633, 97Hun-Ma345, October 29, 1998).

Meanwhile, as the right to pursue happiness is a 'right possessed byall human beings' to which foreigners are also entitled (see 13-2 KCCR714, 723-724, 99Hun-Ma494, November 29, 2001), the freedom of employment contract, which is closely related to foreigner's survival and human dignity and value, can be extended to foreign nationals, too.

The complainants' freedom to enter a new employment contract after canceling the former one is limited by the Instant Provision and the provision of the Employment Decree which prevent the complainants from transferring their workplace more than three time in principle,and allow them only one more additional transfer only whena situation falls under the inevitable grounds stipulated in the Enforcement Decree.

Consequently, with respect to the freedom of employment contract encroached by the Instant Provision and the provision of the Employment Decree, foreigners like the complainants may be regarded as the bearers of the freedom.

2.Whether the complainants are entitled to the freedom of employment contract

(A)According to the opinion of five Justices stated supra, as long as foreigners are authorized to work in our society with proper employment permit, thereby being conferred a status as legitimate workforce in our society, such foreigners, like the complainants, are entitled to the freedom to choose or decide to continue or terminate already created labor relationship without state's interference in the area of their choice, and since such a freedom to choose workplace is placed within the scope of protection guaranteed by the freedom of occupation under our Constitution, the complainants should be regarded as the bearers of the freedom to choose workplace.

(B)We pose a question, however, as to whether it is proper to acknowledge that the freedom to choose workplace, as one type of the freedom of occupation, extends to foreigners based on the so-called 'nature of right' theory (a theory that recognizes the entitlement of a right to a certain person based on the nature and character of the right in question). Of course, it cannot be denied that the freedom to choose workplace bears the characters of liberty rights, but still the issues whether to allow employment of foreign workforce, and if so, to which extent such employment is to be permitted strongly involves national policy decisions depending on the economic situation. In other words, the decision whether to employ foreigners or allow foreigners to conduct economic activities affect the local labor market and is interconnected with the national economic and immigrant policy. Therefore, problems such as how much foreign workforce should be allowed to control the supply of workforce, whether they should be allowed to work in limited or unlimited individual sections of local economy and further, how far their right to choose workplace should be recognized, should be decided as a national policy decision based on the society's economic situation and cultural uniqueness. In this regard, the freedom to choose workplace under the Constitution should be regarded as a freedom to which the citizens are exclusively entitled, rather than a "freedom of human beings", and therefore, we believe that the complainants as foreign nationals are not entitled to

the freedom to choose workplace (97Hun-Ka12 decided on August 31, 2000, quoted in the Opinion of five Justice to support their argumentthat 'foreigners are entitled to the freedom to choose workplace althoughlimitedly', actually did not recognize foreigners as the bearer of the freedom to choose workplace in a limited scope, but simply exemplified the discrimination based on nationality by stating that 'foreigners, in principle, are not entitled to enjoy the nine fundamental rights including the freedom to choose workplace, or only allowed in a limited scope.').

(C)Moreover, the opinion of five Justices, which asserts that foreign workers who have been given legitimate work permit should be regarded as being entitled to the freedom to choose workplace within a limited scope, connotes logical inconsistency. The entitlement to fundamental rights means a status with which a person is entitled to enjoy fundamental rights under our Constitution and which is not newly created by laws. As such, the argument that a person is entitled to fundamental rights under our Constitution simply because he/she has legitimately acquired legal permission to work under our law, which is not a constitutional factor, seems to illogically put the cart before thehorse. If the freedom to choose workplace is recognized only for thosewho legally entered our country pursuant to the Act, as the majority opinion states, it would be treating foreigner's freedom to choose workplace as a statutory right, not a human right, which is insufficient reason to recognize that foreigners such as the complainants are entitled to the freedom to choose workplace.

(D)According to the opinion of Five Justices, the freedom to choose workplace, among the various types of occupational freedoms, should be regarded as a right reserved for all human beings, not merely a right reserved only for citizens because it is closely related to human dignity and value and the right to pursue happiness. But, as the opinion states, all types of occupational freedoms in essence, as a means of satisfying the basic needs of human beings, are closely related to human dignity and value and the right to pursue happiness. Acknowledging foreigners' entitlement to the freedom to choose workplace in separation of other types of occupational freedoms,

therefore, could leave legal matters pertaining to the entitlement of fundamental rights in extreme ambiguity.

3. Sub-conclusion

As the complainants are entitled to enjoy the freedom of employmentcontract derived from Article 10 of the Constitution, the constitutional complaint filed by the complainants is justiciable.

B. Separate Opinion on the Instant Provision

1. Whether the principle against excessive restriction is violated

The freedom of employment contract derived from Article 10 of theConstitution is recognized not only for nationals but also for foreigners,and therefore, restriction on such freedom should conform to the principle against excessive restriction.

As the Instant Provision was enacted to protect local workers' employment opportunities through indirectly restricting foreign workers'workplace transfer and to facilitate sufficient supply of human resourcesfor small or medium sized companies through effectively controlling employment of foreign workers, its legislative purpose is legitimate and the means to achieve the purpose is appropriate.

In addition, as the Instant Provision does not absolutely prohibit foreign worker's workplace transfer, but allows them to transfer workplace up to three times during the three years of their stay in Korea for certain reasons stipulated in the Act and as an additional transfer is possible if there is any exceptional ground specified by the Enforcement Decree, it observes the principle of least restrictive means and maintains the balance between legal interests in light of the aforementioned legislative purposes.

Therefore, the Instant Provision does not infringe on the complainants'freedom to choose workplace in violation of the principle against excessive restriction.

2.Whether the Instant Provision violates the principle against blanket delegation

As we agree with the opinion of five Justices in that the Instant Provision does not violate the principle against blanket delegation, no further elucidation is necessary.

C.Opinion of unconstitutionality on the provision of the Enforcement Decree

1. Whether the principle of statutory reservation is violated

(A) Delegated legislation and statutory reservation

Article 75 of the Constitution, which stipulates that "the President may issue presidential decrees concerning matters delegated to him/her by statutes with the scope specifically defined and also matters necessary to enforce statutes" provides a constitutional ground for delegated legislation initiated by the President and also provides the scope and limitation of such delegated legislation by limiting matters to be legislated by a presidential decree to 'matters delegated to him/her by Act with the scope specifically defined.' Accordingly, a delegated order should be decided within the limited scope of matters authorized by delegation and the objectives set by the parental statute, and a delegated order that violates this scope and limits is regarded illegal, from which we may draw the limit of a delegated order by the conditions set down in the parental statute. Hence, if a delegated order deals with matters not stipulated in the parental statute, it deviates from the scope of delegation (see 9-1 KCCR 487, 494-495,April 24, 1997) and in violation of the principle of statutory reservationas it is a regulation not based on statute (22-1 KCCR 97, 106-107, 2007Hun-Ma910. April 29, 2010).

(B)Review on the provision of the Enforcement Decree

The Instant Provision places limitation on the number of workplace transfer by a foreign worker up to three times in principle, but

according to its proviso, such a limitation shall not apply if there isany inevitable ground specified by presidential decree, thereby delegatingthe details of inevitable grounds for an additional transfer to presidentialdecree.

Meanwhile, the provision of the Enforcement Decree, stipulating that pursuant to the proviso of Article 25 Section 4 of the Act, the head of employment security office may allow 'additional transfer to another business or place of business not more than once' when a foreign worker transfers due to the causes falling under Article 25 Section 2 Item 2 to Item 4 of the Act, not only prescribes the details of 'inevitable reason' delegated by the Act but also limits the number of additional transfer to 'once' even when a case falls into one of the inevitable reasons specified in the Enforcement Decree.

As such, the provision of the Enforcement Decree stipulates matters not delegated by the Instant Provision or the parental statute, thereby limiting the complainants' freedom of employment contract without any statutory ground beyond the scope of delegation, and therefore violates the principle of statutory reservation.

2. Whether the principle against excessive restriction is violated

As the Instant Provision was enacted to protect local workers' employment opportunities by limiting foreign workers from imprudently transferring their workplace and to contribute to the balanceddevelopment of national economy by sufficient supply of human resourcesfor small or medium sized companies through effective employment management for foreign workers, thereby its legislative purpose is legitimate.

Also, limitation on the number of transfer of workplace by foreign workers stipulated by the provision of the Enforcement Decree is an appropriate means to achieve the legislative purposes to protect local workers' employment opportunities and to solve manpower shortage for small or medium sized companies.

But as the provision of the Enforcement Decree includes transfers

for which foreign workers are not responsible in the count of possible workplace transfers, such as unavoidable transfer due to the financial problem of the workplace and allows only one transfer in any case without exception, it fails to observe the principle of least restrictive means. That is, although it is possible to exclude from the number of transfers those caused by reasons for which the foreign workers cannot be held accountable, such as a financial problem of the workplace or intentional closure of business by employer, or to make flexible the number of additional transfers so that the complainants' freedom of contract can be less restricted, the provision of the Enforcement Decree allows only one additional transfer regardless of the reasons. Therefore, the provision of Enforcement Decree fails to satisfy the least restrictive means test.

Further, while the private interest of foreign workers with legitimate employment permit to work stably during the permitted period to acquire material basis for human survival and to support their family members living in their homelands is not small, the public interests to protect local workers' employment opportunities and to stabilize local labor market do not seem to be sufficiently achieved by the provision of the Enforcement Decree that allows transfer of workplace up to four times. Therefore, the provision of the Enforcement Decree fails tostrike the balance between the limited private interests and the protectedpublic interests.

3. Sub-conclusion

For the foregoing reasons, the provision of the Enforcement Decree infringes upon the complainants' freedom of contract, in violation ofthe principle of statutory reservation and the principle against excessiverestriction.

VII.Dissenting Opinion by Justice Song, Doo-Hwan on the Provision of the Enforcement Decree (opinion of unconstitutionality)

A.I share the same conclusion with the opinion of unconstitutionality stated in VI(C) supra that the provision of the Enforcement Decree

violates the principle of statutory reservation and the principle against excessive restriction.

But, as I disagree with the argument that 'foreigners are not entitled to the freedom to choose workplace,' I hereby clarify the reason.

B.In regard to the issue as to whether foreigners are entitled to fundamental rights under the Constitution, even by the so-called 'nature of right' theory, it is acceptable that the freedom to choose occupation or the freedom to choose workplace cannot be recognized for allforeigners in general. Nevertheless, I cannot agree with the opinion thatwhatsoever foreigners are not entitled to the freedom to choose occupation or the freedom to choose workplace.

Even a foreigner without Korean nationality, if he/she has lawfully obtained work permit through procedures provided by the state, legitimately entered and has been maintaining regular life in our country, he/she is not merely a foreigner but can be regarded as arightful subject of personality and livelihood living in Korea. Therefore,for at least during the period of his/her legitimate stay in Korea, he/she should be guaranteed to enjoy the freedom to choose means to make a living and maintain regular life with the guarantee of human dignity and value.

The complainants in this case, legitimately entered Korea with employment permit issued pursuant to the procedures decided by the state from 2005 to 2008, respectively, and have been maintaining a regular life and making a living through working for more than oneyear or three years at which point they filed this constitutional complaint.In this case (when they leave this country upon expiration of authorized stay set aside), they should be guaranteed to enjoy the freedom to choose workplace as a basis on which their living and relationship in life can be properly maintained at least during their stay in Korea without being compelled to choose between forced labor and forced departure.

Meanwhile, regarding the fundamental rights at issue in this case, I

don't think we have to choose either 'the freedom to choose workplace'or 'the freedom to cancel a former employment contract and to form a new one.'

C.Regarding this issue, there is an argument that a foreigner cannotbe entitled to any fundamental rights guaranteed under the Constitution.Although such an argument seems reasonable and simple and clear in its application, I can hardly agree with this because it is questionable whether constitutional rights should be considered as being created solely by the Constitution without other sources or origins. And such an argument seems to give too much weight on the language and text of the Constitution itself.

D.In conclusion, the provision of the Enforcement Decree infringes upon the complainants' freedom to choose workplace, in violation of the principle of statutory reservation and the rule against excessive restriction.

VIII.Dissenting Opinion by Justice Kim, Jong-Dae (Opinion of Dismissal)

I disagree with the majority opinion that acknowledges the entitlement to fundamental rights of the complainants, who are foreigners.

But, as there is a separate opinion that criticizes the logic of the majority opinion, denying foreigners the freedom to choose workplace, I share the opinion specifically on that part because I think foreigners should not be entitled to all fundamental rights under our Constitution. Therefore, I hereby unfold my opinion as follows.

A.Critique on the general view on foreigner's entitlement to fundamental rights

1.The currently accepted common view of the academia, the precedents of our Court and the majority opinion of in the instant case all divide fundamental rights into two types: 'a right reserved for human beings' and 'a right reserved for citizens.' And according to this

division, as far as a right is considered to be awarded to all human beings concerned, not only citizens but also foreigners are entitled tothe right. But I think this view is unjustified for the following reasons.

First, based on the language of our Constitution, foreigners cannot be the bearers of fundamental rights under the Constitution.

The issue whether a person should be considered a bearer of fundamental rights is a matter of interpretation of the Constitution, deciding who is entitled to enjoy the fundamental rights 'guaranteed by the Constitution.' Therefore, in order to solve the matter, first and foremost, we need to take a look at the language of the Constitution itself, reviewing to whom the Articles of the Constitution stipulating fundamental rights expressly reserve such rights. Next, the real intention of our constituent power (the people) as manifested in the history of the framing of the Constitution should be examined.

First of all, the Constitution, based on its text and language pertainingto the entitlement of fundamental rights, neither recognizes a foreigner or a stateless person to be entitled to fundamental rights nor conceptually divides 'human beings' and 'citizens' in deciding who bears a certain type of fundamental right. Regarding both the 'rights reserved for all human beings' claimed by the general view of the academia and the precedents of our Court including the dignity and value as human being (Article 10) and the right to equality (Article 11 Section 1), and the 'rights exclusively reserved for citizens' such as the right to election (Article 24) or the right to hold public office (Article 25), the Constitution clearly and expressly limits the bearers of such rights to 'all citizens'.

Next, in light of the history of the framing of the Constitution, after debating over the choice of a term referring to the bearer of fundamental rights between 'people' and 'citizens,' the constituent power finally resolved to use the term 'citizen.' At the time, the need for protection of the status of foreigners who were not included in the definition of citizen was also contemplated, but the framers decided not to extend the subject of all fundamental rights to noncitizens.

Instead, the need for guarantee of the status of foreigners was reflected in Article 7 of the First Constitution (Article 6 Section 2 of the current Constitution), which provided that "the status of aliens shall be guaranteed as prescribed by international law and treaties" on the premise that the effects of treaties and the generally recognized rules of international law are subordinate to the Constitution (first sentence of Article 9 of the First Constitution and Article 6 Section 1 of the current Constitution).

Considering the historical background of the framing of the Constitution regarding the adoption of Article 7 on the protection of foreigner's rights as well as faithfully interpreting the text of the Constitution, I think the will of our constituent power was that foreign nationals were intentionally excluded from the bearers of fundamental rights under the Constitution, and that it was sufficient to protect their status through international treaties and conventions subordinate to the Constitution.

Second, in terms of the profound relations among state, constitution and fundamental rights, only those who have Korean nationality can be entitled to fundamental rights under the Constitution.

Basically, it is clear that without a state, there is no constitution. And without a constitution, there are no fundamental rights one can argue against the state. Therefore, even 'a human right or a right reserved for human beings' can be protected as a fundamental right under the Constitution only when such right is 'adopted' by the Constitution.

The existence of our country, the Republic of Korea, is a prerequisitecondition for our Constitution and therefore, it is inevitable that even 'a human right or a right reserved for human beings' is tailored to embrace the particular historical experiences of our country and its contemporary situation in being incorporated by our Constitution. Although 'a human right or a right reserved for human beings' existed even before the Constitution, thereby being designated as a innate and natural right, only after being embraced by our Constitution can it

finally have normative effect as a subjective public right that binds our government. Therefore, according to our Constitution, only Korean citizens, who are the components of our political community can be the subjects entitled to fundamental rights.

Third, it is a basic tenet of the Constitution of people's sovereigntythat a citizen's fundamental right and his/her duties under the Constitutionare two phases of the same thing, and therefore, the bearer of fundamentalrights should be identical to that of fundamental duties.

Corresponding to this tenet, the Constitution designates 'citizens' as the subjects of both fundamental rights and duties (Article 38 and Article 39 Section 1). Therefore, to recognize a right reserved for all human beings or supra-constitutional right rising above citizen's rights, while not distinguishing the notion of 'duty of human beings' that rises above 'citizen's duty,' could result in a dangerous construction of the Constitution which threats the foundation of our Constitution based on the two equal axes of fundamental rights and duties.

Fourth, it is the basic principle of our Constitution that a foreigner's status should be protected on the basis of reciprocity.

Article 6 Section 2 of the Constitution stipulates that "the status of aliens shall be guaranteed as prescribed by international law and treaties." This provision is the constitutional basis on which our legal order accepts the general principle under international law regarding foreigner's status. And as reciprocity in the protection of a foreigner is a well established practice in the international legal arena, our Constitution, through this provision, determines its respect for the principle of reciprocity.

Accordingly, we may recognize a foreign national as a subject of fundamental rights under our Constitution only when that specific country, of which the foreigner arguing for his/her entitlement to fundamental rights is a national, acknowledges our citizens' entitlement to fundamental rights under its Constitution. The majority opinion, however, extends entitlement to fundamental rights depending on the nature of the rights, regardless of the complainants' nationalities or

how the constitutions of the complainants' countries treat our citizens, which is in contradiction with our Constitution which embraces theprinciple of reciprocity. Our Constitution is the Constitution ofthe Republic of Korea, not an international constitution. Too muchglobalization in terms of constitutional values, disregarding the historicalbackground of our Constitution, is not a proper way to uphold our Constitution.

The core of the general view which criticizes the opinion denying foreigners the same protection of fundamental rights as citizens is that "such denial runs counter to the trend of the contemporary times where the world has been reduced to a global village within a day's reach from one another and the protection of fundamental rights is becoming more and more globalized." But such anticipation of a global village cannot justify interpreting the Constitution against theexpress language of the Constitution. Once it is realized, the constituentpower will make a new political resolution to guarantee foreigners protection of individual fundamental rights. But the current situation is one where it is an international practice for each nation to have different standards for recognizing foreigners' status upon the principle of reciprocity, and I am worried that if we unilaterally takes a too progressive a view forejudging the future, it may possibly bring about an uncontrollable situation for us in the near future.

Fifth, from the perspective of handling constitutional complaints in practice, the majority opinion is unreasonable. According to the majority opinion, upon examining the complainant's argument, if he/she asserts a right reserved for human beings, the Court should review the constitutional complaint on its merit as the complainant is entitled to such right, whereas if he/she asserts a right reserved for citizens, the complaint should be dismissed before being reviewed on its merit. But such a line-drawing of fundamental rights between rights endowed to human beings and those endowed to citizens is unclear and unobjective, and moreover, if we divide one fundamental right, based on its contents, into two parts, namely a right reserved for human beings and one reserved for citizens, the standard for such a divisionor line-drawing becomes more ambiguous. Especially the opinion

of five Justices, among the majority opinion, argues that as this constitutional complaint pertains to the freedom to choose workplace among the types of the freedom of occupational choice which is closely related to the right to pursue happiness guaranteed under Article 10 of the Constitution, the complainants who are foreign nationals should be entitled to the fundamental right. But I can hardly presuppose what kind of fundamental rights guaranteed by the Constitution could be ruled out as not being related to the right to pursue happiness. Also, since the issue of entitlement to fundamental rights pertains to the general and abstract qualification to be a bearer of fundamental right, if a decision as to whether a complainant is entitled to a fundamental right can only be rendered after first reviewing the nature of the fundamental right at issue, it would be inappropriately putting the cart before the horse.

The statement by the opinion of five Justice that the complainants are entitled to the freedom to choose workplace simply because they legally entered our country with the employment permit legitimately issued pursuant to the Act does not correspond with the general and abstract nature of the entitlement to fundamental rights discussed above.

Sixth, the decision not to allow a foreigner to be subject to fundamental rights does not necessarily mean that foreign nationals are totally excluded from the realm of constitutional protection. Instead, it simply means that a foreigner may not file a constitutional complaint on the ground of the infringement of fundamental rights based on our Constitution. The status of foreign nationals can sufficiently and adequately be protected through international laws or treaties which have the same effect as domestic laws. Through the InternationalCovenant on Economic, Social and Cultural Rights (Covenant No. 1006)and the International Covenant of Civil and Political Rights (Covenant No, 1007) adopted by our Constitution, foreigners may enjoy rights which in substance are almost the same as rights our Constitution guarantees our citizens without discrimination. Even so, however, foreigners should not be considered as the bearers of fundamental rights guaranteed by the Constitution, but simply considered to have

the same rights under laws and treaties, subordinate to the Constitution,as our citizens. Therefore, when their rights are allegedly infringed, foreigners who are the subject of legal rights can ask the ordinary courts for remedy and while pending the case, they may ask the Constitutional Court to review the constitutionality of the statutory provision that stipulates foreigners status that contradicts the constitutional order for the protection of foreigners, through filing a motion to request for a constitutional review of the relevant provision in question pursuant to Article 41 of the Constitutional Court Act or filing a constitutional complaint pursuant to Article 68 Section 2 of the Constitutional Court Act. In the instant case, the complainants should have filed a motion to request for a constitutional review of the relevant provisions at issue while filing a suit for the confirmation of nullity of the discharge in the ordinary court.

2.As reviewed above, foreigners, in principle, cannot be entitled to fundamental rights guaranteed by the Constitution of the Republic of Korea. But, I also think it possible that if a foreigner without Korean nationality under the Nationality Act has been living in our country for a considerable amount of time maintaining a regular life the same as a Korean national (for instance, if qualified to be naturalized as a Korean citizen), he/she can be practically treated as a citizen so that his/her entitlement to fundamental rights under our Constitution can exceptionally be recognized. However, this is an exception, and therefore, the requirements for being qualified as the exception, such as the length of stay in our society and livelihood, should be carefully elaborated by decisions of the Constitutional Court.

B.Constitutional complaint pursuant to Article 68 Section 1 of the Constitutional Court Act and entitlement to fundamental rights

A constitutional complaint filed pursuant to Article 68 Section 1 of the Constitutional Court Act is a system with the feature of subjective litigation by which a citizen, when his/her fundamental right is infringed by exercise or non-exercise of governmental power, may file a constitutional complaint directly to the Constitutional Court asking for remedies, and the aggrieved party seeking a constitutional review

under Article 68 Section 1 of the Constitutional Court Act should be the one whose own fundamental rights are directly and presently infringed by exercise or non-exercise of governmental power (see 7-1 KCCR 416, 421, 93Hun-Ma12, March 23, 1995, etc.). This means thatonly those who are entitled to the fundamental rights recognized by theConstitution are eligible to file a constitutional complaint (see 6-2 KCCR 477, 480, 93Hun-Ma120, December 29, 1994, etc.). Accordingly, the question as to whether a foreign national is entitled to a fundamental right is equal to the question as to whether a foreign national is eligible to directly file a constitutional complaint pursuant to Article 68 Section 1 of the Constitutional Court Act. In my opinion, given that the direct purpose of constitutional adjudication is to provide a remedy for an infringement of fundamental rights (which is different from the filing of suit to the ordinary court to seek legal remedy), foreigners who cannot be entitled to fundamental rights under the Constitution are not eligible to file a constitutional complain pursuant to Article 68 Section 1 of the Constitutional Court Act.

C. Conclusion

Considering the structure of Articles that stipulate the fundamental rights under our Constitution, the history of the framing of our Constitution, the substance and function of human rights and the incorporation of human rights by our Constitution, the methods with which our Constitution protect foreign nationals, I believe that foreigners are not entitled to the fundamental rights under the Constitution. Therefore, the complainants in this case are not eligible to file a constitutional complaint pursuant to Article 68 Section 1 of the Constitutional Court Act which is a remedy for an infringement of fundamental rights guaranteed by the Constitution. Thus, this constitutional complaint should be dismissed as non-justiciable.

By Justice Lee, Kang-Kook (Presiding Justice), Kim, Jong-Dae,Min, Hyeong-Ki,Lee, Dong-Heub, Mok, Young-Joon, Song, Doo-Hwan, Park, Han-Chul, Lee, Jung-Mi