Agreement for Trade of Garlic betweenRepublic of Korea and People's Republicof China

(16-2(B) KCCR 568, 2002Hun-Ma579, December 16, 2004)

The Constitutional Court dismissed on the procedural ground the constitutional complaint challenging the clause for free importation of garlic by South Korean private enterprises included in the

agreement between South Korea and China concerning the trade of garlic, and also challenging the failure to act for notification thereof

to the citizens.

Background of the Case

In order to settle the disputes including the South Korean measure restricting the import of garlic produced in China and the termination of import by China of the South Korean mobile telephones, the government trade representative, with the Chinese counterpart, signed on July 31, 2000 an agreement concerning the trade of garlic between the Republic of Korea and the People's Republic of China to the effect that the restriction upon the import of garlic produced in China that had already been imposed by South Korea for the previous three years would be maintained. The government thereupon disclosed through press release that the amount of garlic to be imported from China was practically frozen for the three years to come at the level of the amount imported in 1999 or less. However, in fact, the supplemental document to the above agreement with China contained the additional agreement stating that the "private enterprises of the Republic of Korea may freely import garlic from the date of January 1, 2003," which the government did not disclose. The complainants, who were cultivating garlic, filed the constitutional complaint in this case claiming that their right to know and property right had been infringed by the above additional agreement and the failure to notify

such additional agreement.

Summary of the Decision

The Constitutional Court, in the opinion of all justices with the exception of the separate concurring opinion of one justice, dismissed the constitutional complaint on the procedural ground. The summary of the grounds therefor is stated in the following

paragraphs.

1. Summary of the Majority Opinion of Eight Justices

A. The measure restricting the import of garlic produced in China is merely to provide a certain amount of extra time for countermeasure by temporarily protecting the agricultural households that have failed to adjust themselves to the concrete economic

situation that face them, and not to secure a legal situation beneficial to the agricultural households cultivating garlic by maintaining the import barrier against the garlic produced in China for a long term or without temporal limit. Therefore, no legally justifiable expectation interest whatsoever can be endowed to the agricultural households cultivating garlic with respect to the renewal of the above import restriction measure, neither may the property right of the agricultural households cultivating garlic be deemed to be restricted by the government's decision to not renew the import restriction measure. In addition, the opportunity to cultivate garlic in an economically manageable way with constant profit is not something guaranteed as the basic right. Thus, even if they should discontinue the cultivation of garlic due to the exacerbation of business situation, the freedom to choose occupation may not be deemed to have been affected thereby. Therefore, as there is no room for the infringement upon the basic right of the complainants such as their property right, the constitutional complaint challenging

the above agreement is unjustified.

B. The government's obligation to disclose that is derived from the right to know, exists only upon the citizen's act of active collection of information and especially the request for disclosure of specific information unless there is an exceptional situation. Therefore, in this case where there was no request for disclosure of information, the government was under no obligation to disclose in advance the import liberalization measure part out of the agreement concerning the trade of garlic between the Republic of Korea and

the People's Republic of China.

In addition, although an obligation to disclose corresponding to the right to know may be recognized as an exception in the case of a certain categories of treaties for which there exists the obligation to promulgate even without request for disclosure, the above agreement with China may not be deemed as the final decision over the renewal of the emergency import restriction measure even pursuant to the supplemental document at issue in this case because such a decision should go through the process of investigation and recommendation of the Trade Committee under the applicable law. Thus, it may not be deemed that the government as the matter of Constitution should necessarily give such agreement the effect

identical to that of the domestic law by way of promulgation.

As such, there is no obligation on the part of the government to disclose the supplemental agreement with respect to the import of garlic. Therefore, the constitutional complaint challenging the failure to act that is based on the premise of the government's obligation

to disclose is unjustified.

2.Summary of the Separate Concurring Opinion Of One Justice

The above agreement concerning the trade of garlic is equivalent to the so-called public notice-type treaty, which under the domestic law has the status equivalent to the public notice and does not have the status as statute. The authority of the executive branch of the government to enter into such public notice-type treaties accompanies in its own nature a very broad discretion. Such discretion of the executive branch is fundamentally strategic and tactical and, further, may not depart from mutualism. Therefore, the constitutional complaint in this case should be dismissed, as the exercise of the authority by the government and the content thereof with respect to the conclusion of the public notice-type treaty may not be the subject matter of review on constitutional complaint unless there is a clear digression from or abuse of the procedure

determined by the Constitution and the statute.