Awarding Additional Points to the FamilyMembers of Patriots and Veterans Who Take the Public Servant Examinations to Work at National and Local Level of Organizations.

[18-1(A) KCCR 269, 2004Hun-Ma675·981·1022(consolidated),

February 23, 2006]

Held, the relevant provisions of the Cordial Reception and Support Act for Patriots and Veterans(Paragraphs 1 and 2 of Article

31) as well as other corresponding clauses providing an award of extra 10% of the perfect score to the family members of patriots and veterans who take the examinations to work as pubic servants for the national or local organizations are unconstitutional for the reasons that the relevant provisions violate the right to equality as well as the right to hold public office.

Background of the Case

The relevant provisions of the Cordial Reception and Support Act for the Patriots and Veterans provide that when the family members of patriots and veterans take the public servant examination to work at local as well as national level organizations, they get additional points of 10% of perfect score at all times. The complainant, who have prepared for or taken such examinations selecting either Level 7 or Level 9 public servants, requested the Court to review the constitutionality of the relevant provisions of the Act above in that those provisions violate their right for equality, right to hold public office.

Summary of the Decision

The Constitutional Court has held, in 7 : 2 decision, that the relevant provisions of the Cordial Reception and Support Act for the Patriots and Veterans are not in conformity with the Constitution. The summary of the grounds for the Court's decision is stated in the following paragraphs.

1. Majority Opinion of Seven Justices

A. The Constitutional Court held that, as decided on February 22, 2001, in 2000Hun-Ma25(hereinafter referred to as the "the former decision"), the old version of the Cordial Reception and Support Act for the Patriots and Veterans with the provisions of same contents along with the contested clauses of the current case did not violate the right to equality and the right to hold public office. However, a certain need to make a different decision has arisen for the following reasons.

Since the year of 1984, the numbers of people who get the benefit as family members of patriots and veterans have been on the dramatic rise. Since the former decision was rendered, other Acts such as the Special Act on the May 18 Democratic Movement have extended the same privileges to the persons concerned as well

as to the surviving family members. Also, since the year 2000, the number of beneficiary from such Acts has increased, because the award extends to the family members and the number of such family members have increased.

Meanwhile, taking the Level 7 public servant examination as an example, the pass rate of beneficiaries from such Acts was 30.3%(189 passers) in 2002, 25.1%(159 passers) in 2003, and 34.2%(163 passers) in 2004, respectively. In addition, the pass rate of the beneficiaries amounted to 26.9%(784 passers) in 2002, 17.6%(331 passers) in 2003, and 15.7%(282 passers) in 2004 for those who got selected as the Level 9 public servants. On June 30th of 2005, among the numbers of people who have the preferential opportunities to work as public servants(the beneficiary of additional points), which are 86,862, only 7,013(8%) people are the patriots and the veterans themselves and 79,849(92%) people are their family members as well as their surviving family members. Those records above show that the preferential treatment system for patriots and veterans has degenerated into a system where their family members get unfair advantage when they take public servant examinations.

In the former decision, the Constitutional Court found that Paragraph 6 of Article 36 of the Constitution, which provides "the opportunity to work shall be accorded preferentially, under the conditions as prescribed by the Act, to those who have given distinguished service to the State, wounded veterans and policemen, and members of the bereaved families of military servicemen and policemen killed in action." should be construed broadly, so the Paragraph of the Article can be a ground for a system awarding additional points to the patriots and veterans themselves as well as their family members. However, pursuant to the facts that the numbers getting such preferential treatment have been increasing rapidly and the competition to be public servants through public servant examinations has become so fierce, the broad interpretation of the contested clause brings the inevitable result of restricting the opportunity of the general public to hold public office. Therefore, there is a need that the Paragraph of the Article should be construed narrowly. For that reason, the beneficiaries of such act should be limited to 'those who have given distinguished service to the State', 'wounded veterans and policemen' and 'the bereaved families of military servicemen and policemen killed in action.'

B. While the discriminatory effect of awarding additional points pursuant to the Act in this case is nothing to be overlooked, the need for giving extra 10% of points to the family members of the patriots and veterans is not material. Even if the purpose of such

legislation is being taken into consideration, the discriminatory effect against the general applicants in terms of restricting the opportunity to hold public office is excessive. Since, the discriminatory effect of the Act is so great and the legitimacy of the legislative purpose and the appropriateness of the means to achieve the purpose cannot be satisfied, the statutory provisions at issue in this case violate the right to equality as well as the right to hold public office.

Meanwhile, the unconstitutionality of the statutory provision at issue in this case is based upon the magnitude of discriminatory effect not upon the inherent ban of existence of any sort of preferential system of giving extra points as legislative policy matter. For the reason, as an alternative, the legislators could slash the extra points given, and make readjustment in terms of the scope of beneficiaries at the same time, curing the unconstitutionality of the statutory provision at issue. Therefore, We hereby issue a decision of nonconformity to the Constitution, to the effect that the legislators shall be obligated to affirmatively cure the unconstitutionality, and order that the statutory provisions at issue in this case shall continue to apply to avoid any legal confusion which might occur to the beneficiaries. The legislators, at the latest of June 30, 2007, should replace the law with a new one. Otherwise, the provisions at issue in this case become nullified as of July 1, 2007.

2. Dissenting Opinion of Two Justices

Fundamentally, the provisions at issue in this case, awarding the extra points to the patriots and veterans as well as to their family members, are in accordance with the meaning and contents of Article 32 Paragraph 6 of the Constitution. Considering (1) the purpose of contributing their livelihood, (2) the purpose of maintaining their social status, (3) the danger of any financial support being a temporary measure, (4) the possibility that the pass rate of the patriots and veterans might drop dramatically without such system of giving extra points to them, the preferential treatments at issue in this case seem to be appropriate. Presently, among the numbers of public servants the people who passed the public servant examination with the benefit of getting extra points only occupy 3% of total number of public servants and the revised version of the Cordial Reception and Support Act for the Patriots and Veterans limits the percentage of people who pass with the help of extra points to 30%. Therefore, the proportion of extra points are not far-fetching which could be construed as either restricting

the rights and opportunities of the general public or causing enormous amount of difficulty in the country management. In short, without any data that awarding additional points to the family members of patriots and veterans is either grossly unfair or unjustifiable to be deemed as deviating from the purpose of the system, the provisions at issue in this case are not in violation of the right to equality. In addtion, the provisions at issue in this case do not violate the right to hold office of the general public by violating the right to equality of them. Therefore, the former decision which held the provisions at issue are not unconstitutional and it should be sustained.