Definition of Abduction Victims Case

[21-1(B) KCCR 915, 2008Hun-Ma393, June 25, 2009]

Article 2 Item 1 of the 'Act on the Compensation and Support for Abduction Victims by North Korea after the Korean War ArmisticeAgreement' prescribes abductees and victims of North Korean abductionsoccurred after concluding the agreement on military armistice. The Constitutional Court decided that the said provision does not infringe on the right to equality and right to pursue happiness of the abduction victims by North Korea during the Korean War.

Background of the Case

According to the allegation of the complainant, whose father, Kim ○-dong, was a member of the founding National Assembly and abducted by North Korea during the Korean War. The complainant filed this constitutional complaint on May 19, 2008, claiming that the right to equality is infringed by Article 2 of the 'Act on the Compensation and Support for Abduction Victims by North Korea after the Korea War Armistice Agreement' (hereinafter, the "Instant Provision") that defines abductees as the persons abducted after the Korean War Armistice Agreement and excludes the abductees or abduction victims prior to the agreement out of the application of the law.

Provision at Issue

Act on the Compensation and Support for Abduction Victims by North Korea after the Korea War Armistice Agreement

Article 2 (definition)

1. Abductee is a Korean who entered into North Korea(north of the MDL, the same shall apply below) from South Korea(south of the MDL, the same shall apply below) and lived there against his own will after the Korean War Armistice Agreement on July 27, 1953.

Summary of the Opinions

The Constitutional Court held that the Instant Provision does not infringe on the right to equality and the right to pursue happiness of the abduction victims during the Korean War, in a 7 (constitutional) to 2 (unconstitutional) vote for the following reasons.

1. Court Opinion

A. The Nature of this Constitutional Complaint

The legislature may omit a certain group of people from a beneficiary provision of statutes as did they in the Instant Provision. A constitutional complaint that requests the extension of the applicable scope of such provisions may appear to be a legislative inaction case.However, the inaction is merely resulted from the reflective effect of the enactment of a beneficiary provision. The complainant alleged that legislators should have considered the abductees both before and after the Korean War Armistice Agreement under the principle of equality. Thus, this case would be not a genuine legislative inaction based on the constitutionally imposed obligation of enactment, but a quasi legislative inaction that is led by the limitation of the applicable scope of the beneficiary provision.

B. The Right to Equality

The Instant Provision does not include the abductees by North Korea during the Korean War in the beneficiary group for the following reasons. It is difficult to investigate the actual condition of abductions by North Korea during the Korean War due to the length of the time elapsed, and it is ambiguous how to determine whether it was the abduction by North Korea or not. Abductions occurred in time of war that is an exceptional situation where the government could not exercise its authority, and it may raise an equality issue in treatment of other war victims, such as death, injury, or disappearance. Because it belongs to the legislative discretion, the Instant Provision would be not an arbitrary discrimination. Therefore, the Instant Provision would not infringe on the right to equality of the

complainant.

C. The Right to Pursue Happiness

The instant provision states the scope of national protection and support with regard to the victims or survivors of abductions occurred after the Korean War Armistice Agreement. Because it is not related to the right to liberty or the limitation of the right to liberty, the Instant Provision would not infringe on the right to pursue happiness of the complainant.

2. Dissenting Opinion of Two Justices (Unconstitutional)

Article 1 (Purpose) of the said Act limits its applicable scope in the abductees by North Korea after concluding the Korean War Armistice Agreement. Besides, the said Act is named as the 'Act on the Compensation and Support for Abduction Victims by North Korea after the Korea War Armistice Agreement', so that it excludes the abductees during the Korean War. It suggests that there have been no legislative actions with regard to the compensation and support for the victims of North Korean abductions before the Korean War Armistice Agreement. Therefore, this case would be one of genuine legislative inaction.

The permanent existence of the State would be one of the most fundamental spirits of the Constitution, and the Citizens should be united and fight the enemy for the existence of the State. With the consideration of this rationale of national existence, the comprehensive interpretation of Preamble, Article 10, Article 39, Article 30, Article 32 of the Constitution indicates the Constitutional obligation to enact the legislation with regard to the compensation for the abductees by North Korea during the Korean War.

The Legislature has not taken any legislative actions to repatriate or compensate abductees during the Korean War despite it has been more than 50 years since armistice and we now become a major economic power. It could be the neglect of the highest priority obligation of the State and it may lose the national dignity as an independent state. Besides, the abductees by North Korea after the Korean War

Armistice Agreement are compensated and supported by the said Act. Under these circumstances, there would be no legitimate reasons of the inaction, from the perspective of the priority of national obligations and fairness.

The legislature has not enacted any legislation to compensate the abductees during the Korean War for more than 50 years despite the Constitution imposed the duty of legislation. It would be the legislative inaction beyond the scope of the legislative discretion, therefore, it violates the Constitution.