Stillborn Fetuses' Right to Claim for Damages Case

[20-2(A) KCCR 91, 2004Hun-Ba81, July 31, 2008]

As regards Article 762 of the Civil Act, which stipulates that "an embryo or fetus shall, in respect of the claim for damages, be deemed to have been already born", the ordinary court, based on its consideration of Article 3 of the Civil Act that states "all persons shall be subjects of rights and duties throughout their lives", interprets that a fetus shall have the claim for damages provided that it is born alive. In the same vein, the ordinary court denies the fetuses that die before birth the claim for damages against violation of their right to life. The issue of this case was whether the aforementioned provisions causing the said consequences violated the State's obligation to safeguard people's basic rights due to insufficient protection of fetuses' right to life. The Constitutional Court, in this regard, decided that the provisions at issue were constitutional.

Background of the Case

The petitioners of this case are parents of a baby stillborn from medical malpractice who filed for damages against the doctor in charge, arguing that if the fetuses have the right to claim for damages as they enjoy the capacity to rights and that if the fetuses are stillborn the claim is inherited to their parents who should have been the persons with parental authority had the fetuses been born. The petitioners, during their trial on appeal, filed a motion to request for a constitutional review of Article 3 and 762 of the Civil Act and, following the denying of the motion, filed a complaint with the Constitutional Court saying that the abovementioned provisions were unconstitutional.

Summary of Decision

In an opinion of 6 to 2, the Constitutional Court issued a decision that the provisions at issue are not in contradiction to the Constitution for the following reasons:

1. Majority Opinion

A.All human beings are subjects of the right to life safeguarded by the Constitution, and the fetuses as evolving lives should also be entitled to the same right to life. Fetuses, therefore, are also the subjects of right to life specified in the Constitution, and the State is obligated to protect the life of a fetus in accordance with Article 10 of the Constitution.

B.In case the State restricts the basic rights in exercising its power for passive defense, the restriction, in accordance with Article 37 Section 2 of the Constitution, is limited to cases necessary for the guarantee of national security, maintenance of law and order or public welfare. In addition, the restrictions cannot infringe the essence of freedom and rights, should take the form of laws, and the scope of violation should be confined to the minimum. However, when the State affirmatively assumes the responsibility of taking overall measures to guarantee people's basic rights, it is difficult to see that the state of protection falling short of people's ideal standard is always unconstitutional. This is because the State's fulfillment of the obligation to protect basic rights is only materialized through legislation, and how and to what extent the State must implement the obligation of protection falls under the scope of legislative discretion of the legislators in considering overall circumstances and judging the legislative policies accordingly.

Admittedly, it is ideal for the legislators to maximize the realization of fulfilling its obligation to protect basic rights, but such ideal standard cannot serve as the standard of review for the Constitutional Court based on which to judge the constitutionality. The Constitutional Court, from the perspective of separation of powers, reviews the observance of the "the principle of prohibition of insufficient protection", that is, whether the State took the appropriate and efficient minimum protective measures for the sake of protecting people's basic rights. Therefore, infringement on basic rights through or incomplete legislation can be acknowledged only in cases where there exists an evident violation of the legislators' obligation to protect basic rights. In other words, the Constitutional Court can find the State's violation of its duty of protecting basic rights provided that the State did not take any protective measures to protect the legal interest of the people or that

the State measures are apparently inadequate or insufficient (see 9-1 KCCR 90, 90Hun-Ma110, January 16, 1997).

C.The State has the responsibility to devise various protective measures for fetuses as they have lives as human beings. However, such obligation of the State to protect basic rights does not lead to constitutional commitment that fetuses should also enjoy the capacity to rights as required by the Civil Act, whether they are prenatal or postnatal. The quest for legal stability stemming from a constitutional State requires that a clear time point be determined to the possible extent as to when the capacity to rights begins. In that sense, the formation of life of human beings may be recognized as starting from a certain point before birth, but it cannot be said that it is unconstitutional to view that life starts from birth.

Legislators are fully executing preventive norms against risks of direct infringement of fetuses' lives through relevant regulations such as the Criminal Act and the Mother and Child Health Act. In that sense, the fact alone that the provisions at issue do not admit the stillborn fetuses' right to damage claims against illegal violation of right to life cannot be criticized that the legislators did not take the least protective measure required of the State in protecting the life of fetuses.

Being an identical life throughout the successive evolving stages of life itself does not necessarily require the same legal effect. The legal order classifies life evolution into certain stages although the life remains identical, and it is not impossible to apply different legal effects to each development stage. For instance, the Criminal Act generally treats fetuses as objects of abortion crimes, whereas fetuses, from the point of mothers' labor, are deemed as human beings, turning into objects of murder and subject to different degree of punishment for violation of life according to each stage of life. Furthermore, fetuses turn into objects of abortion crimes starting from the point of fertilized eggs' implantation in uterus. As implantation takes place around 14 days from fertilization, no form of protection before implantation is executed under the Criminal Act. As such, the legal order does not always grants the same legal protection or effect throughout the entire stages of life.

The provisions at issue also deny the right to claim for damages of fetuses that failed to be born unlike postnatal fetuses, thereby bringing disadvantageous consequences to unborn fetuses. However, such outcome results from the need to ensure legal stability as demanded by private law, which derives from the principle of the State of rule of law, and thus are constitutionally justified. Therefore, the existence of such discriminative legal measures itself cannot be viewed as a result of not fully taking the least legislative measures needed for the State's protection of basic rights and causing unconstitutional lack of or incomplete legislation.

If so, although the provisions at issue acknowledge the claim for damages under the condition that rights to capacity will be granted according to the time of birth and that fetuses will live to birth, such attitude about legislation is hard to be seen as having crossed the boundary of power to formulate legislation. Therefore, the provisions at issue are not to be seen as having violated the State's obligation of protecting the right to life.

2. Dissenting Opinions of Two Justices

A. Opinion of Justice Cho Dae-hyen (Limitedly unconstitutional)

Article 762 of the Civil Act recognizes the right to capacity of attaining the damage claims even during the prenatal period, which is a special regulation that specifies an exception to Article 3 of the Act that states general principles of the applicable period of capacity rights. In case Article 762 of the Civil Act, the special regulation, is applied, the general regulation Article 3 of the Civil Act will not be enforced.

In applying Article 762 of the Civil Act, the Supreme Court interprets that fetuses have the claim for damages against torts provided that they live to be born. This interpretation of law only protects postnatal fetuses, so only those who live until birth are retroactively protected against torts occurred during the fetal stage, and prenatal fetuses themselves do not enjoy the protection. In addition, the damage claim is admitted in case a fetus is injured or parents die due to others' illegal acts but is denied when the fetus dies from an

illegal act. Such interpretation of law reduces the idea of Article 762 of the Civil Act designed to protect dignity and value of fetuses and thus violates the dignity and value of fetuses guaranteed under Article 10 of the Constitution.

In conclusion, it should be declared that interpreting that Article 762 of the Civil Act is applied only to fetuses that live to birth is incompatible with Article 10 of the Constitution.

B. Opinion of Justice Kim Jong-dae (Limitedly unconstitutional)

If Article 762 of the Civil Act that stipulates "an embryo or fetus shall, in respect of the claim for damages, be deemed to have been already born" is not regarded as a special regulation of Article 3 of the Act and, solely based on general interpretation of Article 3, view that "only postnatal fetuses attain the claim for damages except that the effect of the claim takes place retroactively to the fetal stage", the fetus whose right to life is violated is unable to gain the damage claim as its birth is evidently impossible, and the one that has violated the life of fetus is not held accountable in judicial terms. This results from disrespect for fetal life by not recognizing for its substantial value but as fictitious and conditional being and the State failing to fulfill its duty to protect dignity and value as human beings and individual life.

Therefore, to interpret that Article 762 of the Civil Act allows claims for damages only to post-natal fetuses is in violation of Article 10, Sentence 2 of the Constitution that defines the duty to protect basic rights, which is unconstitutional.

--------------------------------------

Parties

Petitioners

1. Shin ○-ho

2. Jung ○-mi

3. Shin ○-jae

4. Shin ○-chang

Shin ○-ho and Jung ○-mi are legal representatives with parentalauthority (father and mother, respectively) of the underage complainants 3 and 4.

petitioners' attorneys are Shin Chang-eon and two others

Underlying case

Supreme Court, 2004Da29170, Damages (Eui)

Holding

1. Article 3 and 762 of the Civil Act do not violate the Constitution.

2. The constitutional complaints of the petitioners Jung ○-mi, Shin ○-jae, Shin ○-chang are dismissed.

Reasoning

1. Introduction of the Case and Subject Matter of Review

A. Introduction of the Case

(1)Petitioners Shin ○-ho and Jung ○-mi are a married couple, and Shin ○-jae and Shin ○-chang are their children. Since May 8, 2002 after the conception of her third child, the Petitioner Jung ○-mi had started receiving regular checkups at Shinsegae Women's Hospital, where the defendant Kim ○-soo works.

(2)Petitioner Jung ○-mi underwent a triple marker test at Shinsegae Women's Hospital for prenatal defect detection on July, 22, 2002 (16 weeks, 2 days pregnant) and was found to have an increased risk for Edwards Syndrome at 1 in 100. Kim ○-soo recommended an amniotic fluid test in order to precisely determine whether the fetus is deformedand, with the consent of Petitioner Jun ○-mi, conducted an amniocentesis on July 25, 2002.

(3)However, Kim ○-soo did not inform complainant Jung ○-mi in detail of the complications and risks of miscarriage that can occur from the stated test and therefore failed to fulfill his obligation for explanation as a doctor, and neither did he take appropriate measures when Petitioner Jung ○-mi revisited the said hospital and complained of fever and stomachache as she had developed symptoms of infection and premature rupture of membranes-complications of the amniocentesis. Petitioner Jung ○-mi underwent an ultrasound test at ○ hospital on August 3, 2002, the result of which found that she barely had amniotic fluid due to amnion rupture. The fetus then died prenatally the next day (19 weeks pregnant).

(4)Petitioners filed a lawsuit seeking compensation for damages against defendant Kim ○-soo with the Incheon District Court, arguing that fetuses also have the right to claim damages and that the said right of a stillborn child is inherited to their parents―those who would have the parental authority had they been born normally. However, the request (the subject matter of the underlying case that presupposes the inheritance of the fetus's right to claim damages) was denied in the appeal as well as the first instance. In response, the Petitioners appealed to the Supreme Court on May 27, 2004 and, during their trial on appeal, filed a motion to request for a constitutional review of Article 3 and 762 of the Civil Act (2004KaGi87). The Supreme Court notwithstanding dismissed the appeal and the denied motion on September 3, 2004, which was notified to the Petitioners on September 10, 2004.

(5)Petitioner Shin ○-ho appealed for a court-appointed counsel with the Constitutional Court on September 15, 2004 but had been refused on October 12, 2004, whereafter he had his attorney as his legal representative and filed a constitutional complaint in this case on October 28, 2004 arguing that abovementioned provisions infringe the basic rights of the fetus.

B. Subject matter of review

The subject matter of review in the instant constitutional complaint

is whether Article 3 and 762 (hereinafter, combined as "Provisions") of the Civil Act (Enacted as Act No.471 on February 22, 1958) are unconstitutional, and the text of the Provisions subject to review are as follows:

Article 3 (Duration of Enjoyment of Rights and Duties)

All persons shall be subjects of rights and duties throughout their lives.

Article 762 (Status of Unborn Child in respect of Claims for Damage)

An embryo or fetus shall, in respect of the claim for damages, be deemed to have been already born.

2. Arguments of Petitioners and Related Bodies

(intentionally omitted)

3. Review on Justiciability

A. Constitutional complaint filing period

(1) Regarding of petitioner Shin ○-ho

Petitioner Shin was notified on september 10, 2004 that his motion to request for a constitutional review of statute was denied.

Five day after, 0n september 15, 2004, Petitioner Shin applied to the Constitutional Court for appointment of court-appointed counsel. This application was refused on October 12, 2004, which was notified to the petitioner on October 18, 2004. In accordance with Article 70 Section 4 of the Constitutional Court Act, in case the application for court-appointed counsel is refused, the period from the application date to notification date shall not be included in calculating the complaint filing period as prescribed in Article 69.

Then at least the period from September 15 to October 18, 2004 is not included in the filing period specified in the above-mentioned Article 69. Thus, the Petitioner's filing period starting October 28, 2004 does not exceed the period designated in Article 69 Section 2 of the Constitutional Court Act.

(2) Regarding filing of Petitioners Jung ○-mi, Shin ○-jae and Shin ○-chang

Constitutional complaint under Article 68 Section 2 of the Constitutional Court Act should be requested within 30 days from when the motion to request for a constitutional review of statutes is denied (Article 69 Section 2 of the Constitutional Court Act), but the above petitioners filed the complaint in this case on October 28, 2004, which is 49 days past the date when the denying of motion to requesting for constitutional review of statutes was notified on September 10, 2004. Therefore, the filing of this petitioners exceeded the designated filing period and is thus nonjusticiable.

B. Precondition for the underlying case

(1) Article 3 of the Civil Act

Article 3 of the Civil Act defines the start and end point of persons entitled to rights under the Act, and the current prevailing theory and case law interprets this article that human life begins with childbirth. According to this interpretation, the right of a fetus is, in principle, not recognized by the provision. Since the right to claim damages of a stillborn fetus due to torts is at issue in the underlying case, it is to be determined whether Article 3 of the Civil Act, which denies the enjoyment of rights by of fetuses in general, is applicable in this case.

Article 762 of the Civil Act provides that "an embryo or fetus shall, in respect of the claim for damages, be deemed to have been already born", and it is possible to recognize the right to damage claim of a stillborn fetus if the provision is interpreted on the face. Nevertheless, the reason why stillborn babies are denied their right to damage claim is that the ordinary court jointly applies Article 3 of the Civil Act, which defines that all person shall be subjects of rights and duties throughout their lives. In other words, it is Article 3, not interpretation of Article 762, that denies the stillborn fetuses'right to claim damages. Since Article 3 of the Civil Act should be considered as being applied to the underling case, it is rendered relevant as precondition to the disposition of the underlying case.

(2) Article 762 of the Civil Act

The holding or conclusion of the underlying case may be affected or legal meaning about the contents or effectiveness of the underlying case may be affected, according to whether the Article 762 above, which has been interpreted in consideration of Article 3 by ordinary courts, is constitutional.

C. Whether filing of petitioner Shin ○-ho is nonjusticiable as challenging statutory interpretation

The Minister of Justice argues that the petitioner in this case does not challenge the constitutionality of a statutory provision itself but challenges the constitutionality of statutory interpretation and therefore does not constitute a constitutional complaint. Although denial of a stillborn baby's holding of legal rights is based on interpretation of the Provisions, ordinary courts has been to interpret Article 762, which deems fetuses to have already been born, in consideration of Article 3. Such interpretation by courts, as seen below, is an established precedent and has a certain group of cases that has been accumulated over a considerable period so as to judge that there is the "issue of constitutionality of provisions subject to review materialized by court interpretation". Therefore, the complaint in this case can be considered a case challenging the constitutionality of the statutory provision itself and is thus justiciable.

D. Sub-conclusion

This constitutional complaint of petitioner Shin ○-ho is justiciable, but that of other petitioners have exceeded the time limit for filing and is thus nonjusticiable.

4. Review on Merits

A. Relevant basic rights

The Provisions, unlike regulation of abortion as prescribed in the

Criminal Act aimed at direct protection of the right to life, concern damage claim after the act of violating life, but the constitutionality ofthe Provisions directly relate to the right to life - a basic right under the Constitution - since the right to claim damages for violation of life isone that seeks compensation for the that of life violation. Therefore, as seen below, judgment on the constitutionality of the Provisions requires review of whether the State violated its duty to protect basic rights, herein the right to life.

On the other hand, denying the right to claim damages of fetuses that died before birth despite the infringement on life during the fetal stage on grounds that they did not live to birth, while recognizing the right to claim for bodily damage of fetuses that were born alive results in discrimination of the two different cases solely based on the criteria of birth. However, insofar as the Provisions are deemed not to be in violation of the State's duty to protect the basic right to life, such discrimination is reasonable and difficult to be viewed as contradicting the right to equality. Therefore, as long as the subject matter of review is whether the Provisions violate the State's duty to protect people's basic rights concerning the right to life, there is no need for a separate review of whether equality rights guaranteed under the Constitution has been infringe.

Then, judgment on the constitutionality of the Provisions could be fully substituted by reviewing whether the State fulfilled its duty to protect basic rights, specifically the directly relevant right to life guaranteed under the Constitution, so no more review will be carried out regarding the infringement on equality rights.

B. Whether fetuses are entitled to right to life

The life of a human being is valuable and indispensable source of dignified human existence. Such right concerning life, or the right to life, is a priori and natural right based on human's survival instinct and raison d'être although it is not written into the Constitution. As such, it is the most basic right that acts as the premise of all basic rights protected under the Constitution (see 8-2 KCCR 537, 95Hun-Ba1, November 28, 1996). All human beings are entitled to the right to life as prescribed by the Constitution, and fetuses in the

formation of life should have their right to life recognized as well. Therefore, fetuses are also entitled to the right to life under the Constitution, and the State has the obligation to protect the life of fetuses in accordance with Article 10 of the Constitution.

C. Significance of Provisions and issues of the case

Article 3 of the Civil Act provides that "all persons shall be subjects of rights and duties throughout their lives". Thus a person can be a holder of rights provided in the Act from his/her birth. As regards exactly when birth takes place, case law and theories adhere to the theory that human life begins with childbirth. Thus, a fetus in the stage preceding birth is in principle is denied to be a holder of legal rights under the Act. Yet, the Civil Act protects fetuses through provisions which protect unborn fetuses in case they need to be protected for their rights in relation to torts. For this reason, an unborn fetus, though exceptionally, can be protected under the Civil Act, and Article 762 of the Act, which stipulates that "an embryo or fetus shall, in respect of the claim for damages, be deemed to have been already born", is also one of such exceptional protective provisions. Yet, the court, in interpreting individual protective provisions concerning fetuses, considers the purpose of Article 3 of the Act and views that fetuses are also given the capacity of enjoyment of rights retroactively provided that they are born alive (known as theory that enjoyment of rights is granted to fetuses on the condition that the fetus is born alive, refer to Supreme Court Decision 76Da1365, decided on September 14, 1976). Therefore, as in this case where the fetus fails to be born and faces death, there is no room for the fetus to enjoy of legal rights or right to claim damages recognized.

After all, the issue in this case is the constitutionality of an incomplete legislation or a legislative omission in which the State fails to take legislative actions to recognize the fetus's right to claim damages for violation of life by individuals. Yet, even though the State takes a legislative action to recognize the right of fetuses to claim damages for violation of life, such right to claim is realized only after the violation takes place. In that sense, it is difficult to

view that fetuses' right to damage claim for life violation is readily derived from, or, in itself, serving as the right to life. If fetuses'right to claim damages is nevertheless recognized, it is fully predictable that the resulting deterrence effect will reinforce general prevention of violating fetal life. From this perspective, a review is required as to if the current legal system which does not allow fetuses' right to claim damages serve to fulfill the State's duty of protecting basic rights to protect fetal life.

Meanwhile, the Criminal Act incriminates the act of violating the right to life of fetuses, and the Mother and Child Health Act protects fetal life by restricting abortion. The Civil Act also provides for measures to protect the interests of fetuses that live to birth via Article 762 or other individual protective provisions. In other words, the minimum legislative actions aimed at protecting life or other interests of fetuses do exist in the current legal system. Therefore, the key to this case is whether the State should be deemed to have fulfilled its obligation of protecting basic rights, herein the right to life of fetuses, only when the right to claim damage for fetal life violation is definitely recognized in addition to the existing protective measures.

D. Whether the Provisions neglect the protection of fetuses' right to life and violate the State's duty to protect basic rights

(1)The second sentence in Article 10 of the Constitution provides that "it shall be the duty of the State to confirm and guarantee the fundamental and inviolable human rights of individuals" and thereby proclaiming the State's duty to actively protect basic rights. Such proclamation reiterates that the State has the duty not only to make efforts toward protecting people's basic rights in its relationship with the people but also to respect and protect basic rights under the Constitution even in establishing judicial order that governs the relations between citizens.

Still, since the State's duty to actively protect people's basic rights can ultimately be realized through legislative acts by legislators, the duty is fundamentally different from the basic right in its passive sense of protection from governmental interference in that such passive aspect of basic rights merits extensive protection under the

Constitution solely through simple existence of basic rights without being activated by legislative actions.

In case the State restricts the basic right in its passive sense of protection from governmental interference, the restriction thereof shall be limited, pursuant to Article 37 Section 2 of the Constitution, to only when it is required to achieve national security, law and order or public welfare. The essence of freedom and rights cannot be infringed upon, and the form of restriction must be by statute with minimum necessary degree of invasiveness. Yet, when the State takes charge of the duty to take all possible measures to guarantee people's basic rights, it is not necessarily against the Constitution just because the level of protection falls short of people's ideal expectations. This is because the fulfillment of the State's duty to protect basic rights is only materialized through legislative actions by the legislators and also because to what extent the State has to fulfill its duty of protection is a matter of legislative discretion which the legislator should decide based on legislative policies with overall circumstances taken into account.

Indeed, it would be most ideal for the legislators to fulfill their duty of protecting basic rights to the maximum extent, but such an ideal standard cannot serve as the standard the Constitutional Court's review of constitutionality. Rather, the Constitutional Court reviews under the rule of prohibition of insufficient protection, which means the review is based on whether the State at least took the adequate, efficient and minimum protective measures in order to protect people's basic rights. Thus, the statement for infringement on basic rights by legislative omission or incomplete legislation can be validated only when the legislators evidently violate their duty to protect basic rights. In other words, the Constitutional Court can find the State to be responsible for violating its duty of protection limited to cases where either the State did not take any protective measures for people's interests or the adopted measures were clearly inadequate or insufficient (see 9-1 KCCR 90, 90Hun-Ma110, January 16, 1997).

(2)It is also advised to review the Provisions focusing on whether the legislators are equipped with the adequate, efficient and minimum protective measures in implementing their duty of protecting basic

rights. As the State takes legislative measures to protect the right to life, it is not impossible to differentiate the level or means of protection depending on the developmental stage of human life. For instance, the Criminal Act differentiates the means of protection in penalizing the act of infringement on right to life by categorizing into homicide, infant homicide and abortion according to life stages, and the Provisions also differentiate protection by distinguishing before from after birth. However, whether such differentiation or distinction can be justified should be discussed from the perspective of "implementation of the duty to protect basic rights" instead of the rule against excessive restriction. This is because the rule against excessive restriction is applied when the State restricts basic rights in the sense of passive protection, not, as in this case, when deciding the proper means to protecting life in each developmental stage as at issue is the infringement on basic interests between citizens, not basic rights involving the relationship between individuals and the State.

(3)Pursuant to the Provisions, stillborn fetuses are not entitled to the right to claim damages for unjustified violation of life. Yet, whether their right to claim damages will be acknowledged by law is a matter of ex post facto permission of damage compensation for torts of life violation instead of a direct means to protect fetal life, and thus whether to recognize such damage compensation falls into the area of legislative discretion.

Admittedly, a fetus is a human life in formation, and the State has the duty to provide for various protective measures for the fetus. However, this does not mean that the Constitution demands such duty of basic rights protection be extended to recognizing the fetus's general enjoyment of rights under the Civil Act irrespective of whether or not the fetus is born alive. The need to ensure legal stability which derives from the principle of the State of rule of law requires that the clearest-possible time point be determined regarding when the acquisition of enjoyment of rights begins. Therefore, even though human life is recognized from a certain time point before birth, it cannot be said that it is against the Constitution to legally view the beginning of human life as childbirth. It would not necessarily be impossible to set the period of holding of rights as a

certain point before childbirth, but even if possible, many obstacles are amply predictable in determining and attesting to the existence of enjoyment of rights in specific legal relationships.

(4)Meanwhile, the Criminal Act, with the purpose of protecting fetal life, provides that those who procure her own miscarriage through artificial means before the expected delivery period or taking life of a fetus whilst in mother's body shall be punished for abortion crimes (Articles 269, 270 of the Criminal Act). At the same time, Article 14 of the Mother and Child Health Act allows for exceptions for induced abortion operation limited to five justifiable reasons, while Article 15 of the Enforcement Decree of the Act regulates abortion operation by permitting such operation only within 28 weeks of pregnancy.

As such, the legislators fully prevent the risk of direct violation of fetal life through relevant provisions such as the Criminal Act and Mother and Child Health Act, so denying fetuses the right to claim damages for torts of life violation limited to cases in which they are stillborn alone cannot be the ground for condemning the legislator for not having taken the minimum protective measure for fetal life required of the State. Also, as the damage claim for torts committed during fetal stage in case the fetus is born alive can be effectively exercised under Article 762 of the Civil Act, fetuses are fully protected from bodily and health damage as long as they are born alive.

(5)The legal effect should not always be the same for every life throughout the stages of continuous development. Even if life is all the same, it is not impossible for legal order to divide the course of life development into stages and impose different legal effects on each stage. For instance, in the Criminal Act fetuses are generally considered objects of abortion crimes but from mothers' labor turn into objects of murder crimes, which means the level of punishment varies by life stages. Furthermore, fetuses become objects of abortion crimes from conception of fertilized eggs in the womb, and life before conception is by no means protected under the Criminal Act as conception takes places approximately 14 days after fertilization. As

such, it is not the case that legal order always gives the same legal protection throughout stages of life. The Provisions also deny the right to claim damages in case fetuses fail to be born alive unlike those born alive, thereby disadvantaging the former. Still, such outcome results from the need to ensure legal stability as demanded in private law relations, which derives from the principle of the State of rule of law, and thus are constitutionally justified. Furthermore, the existence of such discriminatory legislative measure alone cannot be the reason to judge that the State did not take minimum legislative actions needed to protect basic rights and this resulted in unconstitutional deficiency in legislation or incomplete legislation.

(6)In the Civil Act, all individuals are entitled to enjoy legal rights, or the abstract and general qualification for the entitlement to the right and duty in private law relations. Yet, as aforementioned, the time period as to when such entitlement to rights, which serves as the cornerstone for judicial relationships, can be acquired has to be clear above all, and it is advised in that regard to go hand in hand with other countries that pursue same legal ideologies. From the perspective of comparative law, Germany or Switzerland have written into law that enjoyment of rights of human beings begins with "completion of birth", and the law of Switzerland, in particular, specifies that enjoyment of rights fetuses are recognized on the condition that they are born alive. It is also difficult to find examples of legislation or practice that recognize the right to claim damages of stillborn fetuses.

(7)Even though the Provisions determine whether or not to grant enjoyment of rights based on birth and recognize the fetal right to claim damages provided that they are born alive, it is difficult to view that such legislative attitude clearly crossed the boundary of legislative power to formulate legislation. Therefore, the Provisions cannot be considered a contradiction to the State duty of protecting people's right to life.

5. Conclusion

For the stated reasons, this constitutional complaints of the

petitioners Jung ○-mi, Shin ○-jae and Shin ○-chang are nonjusticiable, and Article 3 and 762 of the Civil Act do not violate the Constitution and are thus decided as the Holding herein. This decision is based on the consensus of all Justices involved, except the opinions of limited unconstitutionality by Justice Cho Dae-hyen and that by Justice Kim Jong-dae.

6. Opinion of Limited Unconstitutionality by Justice Cho Dae-hyen

Neither Article 3 nor 762 of the Civil Act is difficult to be seen unconstitutional, but interpreting that Article 762 is applied only when the fetus is born alive is considered to be in violation of Article 10 of the Constitution.

All citizens shall be assured of human worth and dignity, and it shall be the duty of the State to confirm and guarantee such values (Article 10 of the Constitution). Human worth and dignity are the foremost values respected by the Constitution, and all of the State actions involving the legislature, executive and judiciary should be taken in a way that most guarantees human worth and dignity.

Fetuses are human beings in formation. Fetuses grow with the supply of nutrition and oxygen in the womb of their mothers' bodies but later form separate bodies with different blood, independent brain cells and neural tissues. As such, fetuses are lives growing into independent human beings, so it is to be viewed that they, as human beings in formation, enjoy human dignity and value deserving due protection even before birth. It should be considered that the dignity and value of fetuses should also be respected and protected as prescribed by Article 10 of the Constitution.

Article 3 of the Civil Act provides that "all persons shall be subjects of rights and duties throughout their lives", and fetuses "shall be considered as born" in case they require special protection: in case of damage from torts (Article 762 of the Civil Act); a father's affiliation of unborn child (Article 858 of the Civil Act); and unborn child's inheritance or bequest (Article 1000 Section 3, Article 1064 of the Civil Act). Therefore, it is interpreted that general enjoyment of rights by human beings is only recognized for those who are born, and unborn fetuses are not entitled to legal rights in principle with

special exceptions as prescribed by law. Enjoyment of rights is an entitlement to rights and duties. Unborn fetuses, while growing into human beings depending on the mother's body in the womb, generally do not form legal relations or relationship of rights and duties except for special cases, so it is fair to say that there is no need to recognize general enjoyment of rights by fetuses. Therefore, recognizing fetal holding of rights only when there is the necessity (damage claim for torts, affiliation, inheritance, bequest, etc.) while basically not granting it to unborn fetuses, as a whole, is hardly a disregard for fetal dignity and value or a violation of the Constitution.

The reason why it is difficult to consider that Article 3 of the Civil Act disregards fetal dignity and value or violates the Constitution is because there are exceptional regulations that recognize fetal holding of rights in case there is the need (damage claim for torts, affiliation, inheritance, bequest, etc.). However, not allowing such exceptions despite the need or unjustifiably reducing purpose or the scope of application of such exceptional regulations and thereby disregarding fetuses' dignity and value should be considered a violation of Article 10 of the Constitution.

Article 762 of the Civil Act provides that even unborn fetuses are entitled to the right to claim damages for torts with the purpose of protecting fetuses. The provision applies not only to cases where life of fetuses are violated but also to when, as referable to Article 752 of the Act, there is damage to the body or lineal ascendants and the spouse. It is therefore appropriate to see that Article 762 is a provision that aims at protecting the dignity and value as well as the right to life of fetuses.

As Article 762 of the Civil Act grants unborn fetuses the right to claim damages, this serves as a priority regulation that provides for an exception to Article 3 that sets forth a general principle for duration of holding of rights. It is to be viewed that Article 3, a general regulation, does not apply when Article 762 as a priority regulation is applied. For this reason, a fetus is entitled to obtain, maintain and exercise the right to claim damages even before birth, and, even when the fetus dies, the already recognized enjoyment of rights does not disappear retroactively but is maintained until and lapses at the time of death. Even when the fetus fails to be born alive, its right to

claim damages that had already been obtained does not become invalid from the first place or is extinguished retroactively, but is to be viewed that the fetus holds the right until death and inherits the right from death. This interpretation is a way to protect the dignity and value of fetuses in consideration of the purpose of enacting priority regulations such as Article 762 and the demand of Article 10 of the Constitution.

The interpretation of the Supreme Court is integrated into law and, with its normative power, serves as the standard for adjudication. Thus, if the Supreme Court's law interpretation is unconstitutional, the adjudication carried out accordingly will also involve unconstitutionality. For this reason, in case the Supreme Court's law interpretation is unconstitutional, the Constitutional Court will have to identify whether such interpretation of law leading to integration into law violates the Constitution, thereby removing such legal interpretation or the law itself and securing the constitutionality of legal contents. That is the cause of adjudication on constitutionality of statutes and the way to securing the highest normative power of the Constitution.

Ultimately, interpreting that application of Article 762 of the Civil Act is limited to when the fetus is born alive must be declared to be in violation of Article 10 of the Constitution.

7. Opinion of Limited Unconstitutionality by Justice Kim Jong-dae

A. Fetus's entitlement to basic rights

The judgment as to whether fetuses are entitled to basic rights is an issue of whether fetuses should be considered as human beings. As all human beings are entitled to basic rights, fetuses' entitlement to basic rights cannot be denied as long as they are considered as human beings. Whether to recognize their basic rights is a matter of normative value judgment, but in the end it is a matter inevitably determined by biological perception since the entitlement to basic rights is granted not limited to those that qualify as human beings deserving basic rights but to all biological human beings.

Some believe that human life begins at the point of conception, but

it is generally viewed in the biological or medical circle that individual human life takes place two weeks from fertilization, beyond the embryonic stage. In the oriental culture, fetuses become one year olds from birth and are considered to require education as shown in the term "prenatal education", which also seems to presuppose that fetuses are human beings.

As such, fetuses should be deemed human beings and therefore justly entitled to basic rights.

B. Human dignity and value and right to life of fetuses

As fetuses are living organisms that should be considered human beings, they have human dignity and value and are entitled to basic rights. However, they still are incomplete human beings, connected to mothers' bodies on which their subsistence and growth entirely depend. In reality, there inevitably are limitations on basic rights to be guaranteed for fetuses although fetuses are ideally entitled to all basic rights (In fact, most of the basic rights such as personal liberty, freedom of residence and movement, freedom of occupation, freedom of religion and freedom of the press and publication are insignificant to fetuses.).

The right to life, of all basic rights, however, is a "proto-right" that guarantees the life of people that serves as a prerequisite to all basic rights which should be granted to fetuses before birth as well as after birth. This is evidently specified in Article 10 of the Constitution that defines human dignity and value. Therefore, it is appropriate to understand that recognition of fetuses' entitlement to basic rights based on their biological features implies the need to recognize their human dignity and value and thus guarantee the right to life. In that case, the right to life of fetuses involves recognizing that fetuses are substantially entitled to human dignity and value and protecting their life from direct and indirect violation.

C. Constitutionality of the Provisions

(1)Article 3 of the Civil Act specifies that, "All persons shall be subjects of rights and duties throughout their lives", and the phrase

"throughout their lives" herein is interpreted from birth to death. Meanwhile, Article 762 of the Act provides that "An embryo or fetus shall, in respect of the claim damages, be deemed to have been already born", which sets forth a priority regulation to Article 3 of the Act regarding the damage claim of fetuses. Given that Article 3 mainly covers property rights while Article 762 serves as a priority regulation, a proper contextual interpretation of Article 762 would make it unnecessary to debate the issue of constitutionality of the abovementioned provisions.

Still, if Article 762 is not viewed as a priority regulation of Article 3 and is interpreted customarily that, "Fetuses obtain claim for damages only when they are born alive, except that the right to claim damages becomes effective retroactive to the fetal stage", this is, for the following reasons, inevitably seen as a violation of fetuses' human dignity and value as well as their right to life.

(2)The second sentence of Article 10 of the Constitution provides that the State has the duty to confirm and guarantee the fundamental and inviolable rights. Therefore, the State is obligated to protect life of individuals in order to realize human dignity and, along with this obligation, to offer legal and institutional mechanism to protect life of people from intrusion by individuals.

By holding judicially responsible those who have violated others' life through criminal punishment for homicide and entitlement to the right to claim damages, the State has placed the minimum legal and institutional measure to protect the life of people.

Fetuses are no different from born-alive human beings in that they should also enjoy the dignity and value and the right to life. That is why those who violate life of fetuses are also held criminally responsible for abortion crimes and violation of the Mother and Child Health Act.

Yet, if Article 762 of the Civil Act, which provides that, "An embryo or fetus shall, in respect of the claim for damages, be deemed to have been already born" is interpreted that "Fetuses obtain claim for damages only when they are born alive, except that the right to claim damages becomes effective retroactively to the fetal stage", the fetus that has its life violated is evidently unable to be born alive and

thus becomes incapable of obtaining the right to claim damages, which means the person who violated life of the fetus does not hold any judicial responsibility. This amounts to the neglect of fetal life by perceiving it as fictional and conditional instead of on that holds existential value, and this is a result of the State's failure to fulfill its duty of protecting human dignity and value as well as individual life.

(3)The State's neglect of its duty to protect basic rights by granting the right to claim damages limited to fetuses that are born alive in accordance with Article 762 would become more evident if we compare fetuses that die from torts of violation and those that are born alive just being injured. In case fetuses that have their rights violated by torts are born alive with injury, they are able to obtain the right to claim damages, whereas it is unable for fetuses to obtain the rights if they die from torts of violation. This implies that those who impair the body of fetuses are held judicially responsible whereas those who violate the life of fetuses are by no means held accountable, which is an evident violation of the duty to protect basic rights of fetuses imposed by the Constitution.

D. Conclusion

Therefore, interpreting that Article 762 of the Civil Act grants the right to claim damages only to the fetuses that are born alive is inconsistent with the second sentence of Article 10 of the Constitution, which specifies the duty of basic rights protection. This infringes on the right to life as well as human dignity and value and ultimately violates the Constitution.

Justices Lee Kang-kook (Presiding Justice), Lee Kong-hyun, Cho Dae-hyen, Kim Hee-ok, Kim Jong-dae, Min Hyeong-ki, Lee Dong-heub, Mok Young-joon, Song Doo-hwan