Age Restriction Case in the Open-Competitive Civil Service Entrance Examination for Rank 5 Position

[20-1(B) KCCR 329, 2007Hun-Ma1105, May 29, 2008]

Background of the Case

The Decree on Civil Service Entrance Examination places restriction on applicants' eligibility for taking civil service entrance examinations by establishing an age limit for every rank of civil service. The complainant has been preparing for the 2008 open-competitive civil service examination for rank 5 position (hereinafter, the "open-competitive exam for rank 5"). According to Article 16 of the Decree on Civil Service Entrance Examination (hereinafter, the "Instant Provision of the Decree")[Attached Table 4], the age limit for applicants who take the open-competitive exam for rank 5 is the age of 32, which stripped the complainant, who became over 32 years old when applying for the exam, of an opportunity to take the examination. Hereupon, the complainant brought a constitutional complaint to the Constitutional Court.

Summary of Decision

Concerning whether the Instant Provision of the Decree infringed upon the complainant's right to hold public office, five Justices issued an opinion of incompatibility with the Constitution which are dissented by three Justices issued an opinion of unconstitutionality, and one Justice issued an opinion of constitutionality. An opinion of unconstitutionality basically shares the same idea with an opinion of incompatibility with the Constitution and the latter, which is inclusive of the former, merely gives some extension for invalidation of the unconstitutional provision until when the legislature revises it by a deadline. Therefore, the Constitutional Court, as a final conclusion, issued a decision of eight Justices that the Instant Provision of the Decree is not compatible with the Constitution. The summary of the reasons are as follows:

1. Opinion of Five Justices (incompatible with the Constitution)

The Instant Provision of the Decree was enacted to promote "public welfare", which can be served as a ground for restriction on the basic rights, pursuant to Article 37 Section 2 of the Constitution. Moreover, placing an age requirement in an open-competitive civil service entrance examination, as provided in the Instant Provision of the Decree, cannot be regarded as an inappropriate means to achieve the aforementioned legislative purpose.

Nevertheless, it is unreasonable to say that applicants up to the age of 32 pass the threshold of minimum qualifications necessary for carrying out official duties of rank 5 position while those who are over the age of 32 automatically lose such qualifications. Accordingly, the Instant Provision of the Decree restricting the maximum age for rank 5 position by 32 years old cannot be deemed conformable to Article 37 Section 2 of the Constitution which demands any restriction on the basic rights be the least restrictive one.

However, as putting an age limit on applicants for the open-competitive examination for rank 5 should not be prohibited in full scale, and as some restrictions at minimum level on the age of examinees who are expected to be public officials within the framework of the retirement system may be necessary to increase efficiency in recruiting process and performance of official duties, such limits should be decided by the legislature with consideration of various legislative policies including the retirement system for public officials, personal management policies and balance between manpower supply and demand. In this regard, the Court decided that the Instant Provision of the Decree is not compatible with the Constitution and urged legislative revision.

2. Opinion of Three Justices (Unconstitutional)

The Instant Provision of the Decree seems to assume that a person would lose efficiency in performing the official duties of rank 5 position as soon as he/she becomes more than 32 years old of age. And, it directly restricts the right to hold public office of a person over 32 years old. Although the purposes of the Instant Provision of the Decree are to train and educate career public officials and to firmly settle down the career civil service system, it is still

questionable whether there is no other way to achieve the goals except directly putting limits on the right to hold public office for those who are over 32 years old.

The Instant Provision of the Decree also purports that the age limitation would lead many talented people not to immerge themselves in preparing for the time consuming civil service examinations for too long time, thereby effectively assigning a right person in a right place in various fields of the society. Such a purpose, however, may not be persuasive enough to validate the unreasonable restriction on the right to hold public office for rank 5 position. Rather, the purpose should have been accomplished by providing social infrastructure that makes it more attractive for the applicants to work in other sectors of the society than to hold a position as a rank 5 public official.

Further, it is uncertain whether the Instant Provision of the Decree can clearly present positive effects on the training and education of career public officials and on the settlement of the career civil service system. In contrast, however, the restriction by the Instant Provision of the Decree on the right to hold public office of the people over age of 32 is direct and obvious.

In addition, age discrimination is something that discriminates people based on a condition for which they cannot be responsible or control. In this modern society where people's life expectancy has drastically improved, restricting people's basic rights based on age is losing its ground. It seems more reasonable to let people freely enjoy an opportunity to work as long as they are not over the retirement age, or in other words, a maximum age to work for a certain position.

Therefore, the Instant Provision of the Decree violates Article 37 Section 2 of the Constitution and directly infringes upon the right to hold public office of the people over 32 years old.

3. Dissenting Opinion of One Justice (Constitutional)

Although the Instant Provision of the Decree admittedly limits the maximum age of applicants by 32 years old, such restriction seems neither markedly unreasonable nor unfair. Besides, it does not go beyond the scope of discretionary power given to the legislature. Therefore, it should be declared to be constitutional.

Significance of the Case

The decision in this case is the first decision rendered by the Constitutional Court to declare unconstitutional an age restriction regarding the right to hold public office. The Ministry of Public Administration and Security plans to revise the Decree on Civil Service Entrance Examination, pursuant to the Constitutional Court's decision of incompatibility with the Constitution.

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Party

Complainant

Kim ○-mahn

State-Appointed Counsel: Shim Bong-seok

Holding

1. The constitutional complaint pertaining to the part of 'age' in Article 36 of the State Public Officials Act (partially revised by Act No. 7189, March 11, 2004, but before partially revised by Act No.8996, March 28, 2008) is dismissed.

2. The part of 'age 32' in Annex 4 to Article 16 of the Decree on Civil Service Entrance Examination (fully revised by the Presidential Decree No. 18424, June 11, 2004), which is the maximum age limit for application to take the open-competitive civil service entrance examination for rank 5 position, is not compatible with the Constitution.

The above mentioned part shall remain effective until it is revised by December 31, 2008.

Reasoning

1. Introduction of the Case and Subject Matter of Review

A. Introduction of the Case

Complainant, born on February 8, 1971, has been preparing for the 2008 open-competitive civil service entrance examination for rank 5 position (hereinafter, the "open-competitive examination for rank 5"). The complainant filed this constitutional complaint on the grounds that Article 36 of the State Public Officials Act and Annex 4 to Article 16 of the Decree on Civil Service Entrance Examination, which establish a maximum-age requirement for taking the open competitive examination for rank 5 to be 32 years of age, infringe on the complainant's right to hold public office and right to equality.

B. Subject matter of review

The subject matter of this case is constitutionality of 1) the part of "age" in Article 36 of the State Public Officials Act (partially revised by Act No. 7189, March 11, 2004, but before revised by Act No.8996, March 28, 2008, hereinafter the "Instant Provision of the Act") and 2) the part of 'maximum age limit of 32 years of age'(hereinafter, the "Instant Provision of the Decree") stipulated in Annex 4 to Article 16 [attached table 4] of the Decree on Civil Service Entrance Examination (fully revised by Presidential Decree No. 18424, June 11, 2004). The text of the Instant Provision of the Act and the instant Provision of the Decree and the related provisions are as follows:

The State Public Officials Act (revised by Act No. 7189 on March 11, 2004, but before revised by Act No.8996 on March 28, 2008)

Article 36 (Eligibility for Examination)

Minimum scholastic ability, career, age, or other qualification requirements for various examinations, etc., required for carrying out duties to be assumed shall be determined by the National Assembly Regulations, the Supreme Court Regulations, the Constitutional Court Regulations, the National Election Commission Regulations or the Presidential Decree.

The State Public Officials Act (revised by Act No. 8996 on March

28, 2008)

Article 36 (Eligibility for Examination)

Minimum qualification requirements for various examinations for carrying out duties to be assumed shall be determined by the National Assembly Regulations, the Supreme Court Regulations, the Constitutional Court Regulations, the National Election Commission Regulations or the Presidential Decree.

Addenda

Article 1 (Enforcement Date)

This Act shall enter into force on the date of its promulgation: Provided, that the enforcement date of the revised provisions of Article 36 shall enter into force on January 1, 2009 and the provisions of Article 43 Section 2 shall enter into force three months after the date of its promulgation.

The Decree on Civil Service Entrance Examination (fully revised by the Presidential Decree No.18424 on June 11, 2004)

Article 16 (Age Requirement)

Any applicant for civil service entrance examinations shall meet the minimum and maximum limits of age at the year when the expected date of final examination falls: Provided, an applicant who was born in January 1 and exceeds one year from the maximum limit of age [attached table 4] can apply for the examination.

[Table 4] Age Requirement for Application for Civil Service Entrance Examination The attached table was partially revised by the Presidential Decree No. 19808 and the Presidential Decree No. 20650, respectively. But the portion of the provisions in this case was not revised.

2. Arguments of Complainant and Related Bodies

(intentionally omitted)

3. Review of the Instant Provision of the Act

Although the Instant Provision of the Act allows setting minimum requirements regarding 'age' in civil service entrance examinations, details of such limits are subject to the Presidential Decree. As a result, the Instant Provision of the Act does not directly infringe upon the complaint's basic rights because detailed contents of such limits are supposed to be determined and enforced by subordinate regulations to which the authority to decide details is delegated by the Instant Provision of the Act. Consequently, we should determine whether the complainant's basic rights are infringed or not, based on the detailed contents set by subordinate regulations, not by the Instant Provision itself. (2001Hun-Ma93 et al., September 25, 2003)

Therefore, the constitutional complaint regarding the Instant Provision of the Act is not justiciable because the complainant's basic right cannot be regarded as being directly infringed by the Instant Provision of the Act.

4. Review of the Instant Provision of the Decree

A. Legislative history and purpose of the Instant Provision of the Decree

The legislative purpose of the Instant Provision of the Decree is to

cultivate career civil servants who can contribute to promoting administrative stability and efficiency, by employing young, talented people as rank 5 public officers who are expected to make a life-long commitment to the civil service and promoting them to high ranking public office holders through providing continuous training and education programs to increase job efficiency and performance and to manage their career in the public service.

Also, since competition between applicants for open-competitive civil service entrance examination is fierce, those applicants must devote substantial amount of time and effort to enter their would-be positions within the public sector. Therefore, in order to address this situation, the Instant Provision of the Decree was enacted with the purpose to effectively distribute quality human resources to various parts of the society by way of putting maximum limits on the age of applicants, thereby inducing many talented applicants to unfold their abilities in different sectors of the society other than the civil service.

The statutory grounds for the age limitations imposed on civil service entrance examinations have been supplied since the enactment of the State Public Officials Act on April 17, 1963: Article 36 of the first State Public Officials Act provided that "minimum scholastic ability, career, age, or other qualification requirements for various examinations, etc., required for carrying out duties to be assumed shall be determined by regulations for human resource administration". After going through several revisions, the Act had been revised by Act No. 7181, March 11, 2004 and by the Presidential Decree No. 18424, June 11, 2004 which respectively contain the provisions at issue in this case.

Recently, the Instant Provision of the Act was revised once again by Act No. 8996, March 28, 2008, providing that "minimum qualification requirements for various examinations for carrying out duties to be assumed shall be determined by the National Assembly Regulations, the Supreme Court Regulations, the Constitutional Court Regulations, the National Election Commission Regulations or the Presidential Decree". Here, the part of "age" in the previous provision was eliminated. The revised Act is to be effective from January 1, 2009. The Instant Provision of the Decree, however, has not yet lifted the age limit.

B. Restriction of basic right by the instant provision of the decree

The maximum limit of age requirement for applicants who are expected to take the open-competitive examination for rank 5 position is age of 32, while that for applicants to take the open competitive examinations for rank 6 and 7 is age of 35. The difference, however, does not bring about any problem of infringing on the basic rights from the outset, because qualifications required for rank 5 position and those required for rank 6 and 7 positions cannot be compared. With these observations, we cannot conclude that the Instant Provision of the Decree is in violation of the principle of equal treatment.

On the other hand, the Instant Provision of the Decree, by placing the maximum age requirement of age 32 on applicants for the open-competitive examination for rank 5 position, directly restricts the right to hold public office for those who are over 32 years old. To make this restriction legitimate, the Instant Provision of the Decree should conform to the principle against excessive restriction demanded by Article 37 Section 2 of the Constitution.

Concerning whether the Instant Provision of the Decree meets the constitutional requirement under Article 37 Section 2, the opinions of Justices are divided as follows:

C. Opinion of incompatibility with the Constitution by Justice Lee Kang-kook, Justice Kim Hee-ok, Justice Min Hyeong-ki, Justice Lee Dong-heub and Justice Song Doo-hwan

Ones of the purposes of the Instant Provision of the Decree is to effectively distribute quality human resources to various parts of the society pertinent to their individual abilities, by dissuading talented applicants from spending too much time and effort on preparing for civil service examinations, as well as to establish the career civil service system by training and educating career public officials. Hiring people who are approaching to retirement age seems to be an inappropriate way to promote efficiency in the civil service system, which may vindicate establishment of certain levels of age limit for applicants who want to take civil service entrance examinations in some sense. As the Instant Provision of the Decree is enacted to

promote public welfare, such a legislative purpose can be served as a ground for restriction on the basic rights.

Moreover, establishment of age requirement for an open-competitive civil service entrance examination, as provided in the Instant Provision of the Decree, cannot be regarded as an inappropriate means to achieve the above-mentioned legislative purpose.

Nevertheless, it is unreasonable to say that applicants up to the age of 32 pass the threshold of minimum qualifications necessary for carrying out the official duties of rank 5 position while those who are over the age of 32 automatically lose such qualifications. This consideration is clearly reflected in the non-competitive civil service entrance examination for rank 5, which places no age limits on applicants for the examination. Also, it is still unreasonable that the maximum age limit for the open-competitive examinations for rank 6 and 7 positions is the age of 35 whereas that of the open-competitive examination for rank 5 position is the age of 32. Rather, it seems more logical to provide a higher age limit to applicants for rank 5 position than to applicants for rank 6 or 7 positions because it may be sometimes preferable for higher position holders like rank 5 public officials to be older than those under their supervision in the hierarchical civil service system for smoother administrative practice.

Accordingly, the Instant Provision of the Decree restricting the maximum age of applicants for rank 5 position by age 32 cannot be regarded as conformable to Article 37 Section 2 of the Constitution which requires the restriction on the basic rights to be the least restrictive one.

However, considering that putting an age limit on applicants for the open-competitive examination for rank 5 should not be prohibited in full scale, and considering that minimum restrictions on age requirement for applicants expected to be public officials within the framework of retirement system may be necessary to increase efficiency in recruiting process and performance of official duties, such limits should be decided by the legislature in consideration of various legislative policies including the retirement system for public officials, personal management policies and balance between manpower supply and demand.

In this regard, we declare that the Instant Provision of the Decree is

not compatible with the Constitution and urges legislative revision.

D. Opinion of unconstitutionality by Justice Cho Dae-hyen, Justice Kim Jong-dae and Justice Mok Young-joon

What the Instant Provision of the Act has delegated to the Enforcement Decree to settle the details is about "minimum scholastic ability, career, age, or other qualification requirements for various examinations, etc., necessary for carrying out duties to be assumed". And the Enforcement Decree provided that "age 32" is the minimum qualification requirement for carrying out the official duties of rank 5 position.

However, as the opinion of incompatibility with the Constitution suggests, the age of 32 cannot be regarded as the Maginot line beyond which people would immediately lose their ability to carry out the official duties. Therefore, the maximum age of "32" laid down in the Instant Provision of the Decree as a minimum requirement for performing the official duties seems to be unreasonable and excessively arbitrary, going beyond the scope of the authority delegated by Instant Provision of the Act.

Although the Instant Provision of the Decree contributes to foster career public officials and settle down the career civil service system, it is still questionable whether there is no other way to achieve the goals except directly putting limits on the right to hold public office for those who are over 32 years old.

The majority said that one of the purposes of the Instant Provision of the Decree is to dissuade many talented applicants from spending too much time and effort on preparing for the time consuming examinations, so that they can exert their respective abilities in the right place of the society. Having said that, such a purpose may not be persuasive enough to validate the unreasonable restriction on the right to hold public office for rank 5 position. Rather, the purpose should be accomplished by providing social infrastructure that makes it more attractive for the applicants to work in other sectors of the society than to hold a position as a rank 5 public official.

Also, it is uncertain whether the Instant Provision of the Decree can clearly present positive effects on the training and education of career

public officials or the settlement of the career civil service system. In contrast, however, the negative effect of the Instant Provision of the Decree that confines the right to hold public office of the people over age of 32 is direct and obvious. In this case, the public interests expected to be realized by the Instant Provision of the Decree do not clearly outweigh the disadvantages caused by the restriction on the right to hold public office of the people over 32 years old.

Moreover, age discrimination is something that discriminates people based on a condition for which they cannot be responsible. In this modern society where people's life expectancy has drastically improved, restricting people's basic rights based on age is losing its ground. It seems more reasonable to have people freely enjoy an opportunity to work as long as the people's age does not exceed a retirement age, or in other words, a maximum age to work for a certain position.

For the foregoing reasons, the Instant Provision of the Decree directly infringes the right to hold public office of the people over the age of 32.

E. Opinion of constitutionality by Justice Lee Kong-hyun

Age restriction in a civil service entrance examination should be carefully imposed within the purview of the constitutional recognition as it is closely related to restriction on people's right to hold public office. In making a decision regarding age restriction in a civil service examination, the legislature usually compels to take various situations including the supply and demand of manpower into consideration and such legislative discretion should be honored unless it goes far beyond reasonable grounds. The decision on the age restriction in relation to the right to hold public office is a matter of choice by the legislature in order to effectively achieve the legislative purpose. Unless a means to achieve the purpose is clearly irrational or unfair, the decision should be left to legislative discretion. (9-1 KCCR 674, 683, 96Hun-Ma89, June 26, 1997; 18-1(B) KCCR 134, 143, 2005Hun-Ma11, May 25, 2005)

Contemplating whether the maximum age limit of 32 prescribed in the Instant Provision of the Decree is a clearly irrational or unfair to

achieve the above mentioned legislative purpose, I found that it cannot be concluded as going beyond the scope of legislative discretion, given the fact that the age limit has been determined based on reasonable consideration of various facts such as the length of time to achieve professional experience necessary for those who are in charge of 'planning and managing public policy' the length of time to serve the people as public officials until retirement; the time and expense required to train and educate newly appointed high ranking public officers; and the length of time for promotion. Moreover, as the Instant Provision of the Decree seems to provide applicants with sufficient time and opportunities to prepare for the examination, for example, amounting to eight to ten years upon the average applicants' graduation of college, it cannot be said that the Instant Provision of the Decree offers too little opportunity to take the examination.

Therefore, the constitutional complaint should be denied, because the Instant Provision of the Decree does not infringe on the complainant's right to hold public office.

F. Sub-conclusion

As reviewed above, concerning whether the Instant Provision of the Decree infringes on the complainant's right to hold public office, five Justices issued an opinion of constitutional incompatibility, three Justices issues an opinion of unconstitutionality, while one Justice issues an opinion of constitutionality. Although the number of Justices who issued an opinion of constitutional incompatibility falls short of the quorum requirement (six or more Justices' votes are required) to hold the infringement of complainant's basic rights, given the fact that an opinion of unconstitutionality shares the same basic idea with an opinion of incompatibility, it can be said that eight Justices including three Justices with an opinion of unconstitutionality agree that the Instant Provision of the Decree is not compatible with the Constitution.

5. Conclusion

Regarding the Instant Provision of the Act, since the Provision is

not justiciable as previously reviewed, the Court decides to dismiss the constitutional complaint by the unanimous decision.

Regarding the Instant Provision of the Decree, the Court declares a decision of incompatibility with the Constitution, with a unanimous opinion of all Justices except Justice Lee Kong-hyun, allowing the Provision to remain effective pending its revision by the legislature, to be completed by December 31, 2008.

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