Retirement Age for Judges Case

(14-2 KCCR 541, 2001Hun-Ma557, October 31, 2002)

In this case, the Constitutional Court upheld the provision of the Court Organization Act stipulating the retirement age limit of 63 for judges.

A. Background of the Case

The instant statutory provision stipulates that "The retirement ageof the Chief Justice of the Supreme Court shall be seventy years ofage; the Justices of the Supreme Court, sixty-five years of age; andthe judges, sixty-three years of age." The complainant, a former judge,retired at the age of 63. The complainant filed the instant constitu-

tional complaint, arguing that the instant statutory provision to forcea judge to retire against his wish would be against the Constitutionstipulating job security for judges and that it would be against theprinciple of equality to apply different retirement age for judgesholding different positions.

B. Summary of the Decision

The Constitutional Court unanimously upheld the instant statutoryprovision as follows:

(1) Article 105(4) of the Constitution stipulates that "The retire-ment age of judges shall be determined by Act." Judges are stateagencies entrusted with the judicial power, one of three basic powersof the Government along with legislative power and administrative power,and they rule independently according to their conscience and in con-formity with the Constitution and other Acts (Article 103 of the Con-stitution). Judges are heavily protected by the Constitution in order toensure the independence of the Judicial Branch (Article 106 of the Con-stitution). Therefore, the legislators need to consider the special char- acteristics of judges' work in determining the retirement age of judges.

(2) The instant statutory provision stipulates different retirement ages for judges in different positions. However, age, unlike sex, re-ligion, or social status, is not enumerated under Article 11 of the Con-stitution as a factor not to be used as a basis for differential treatment.No privileged caste is established by such differential treatment ofjudges. Different retirement age for judges in different positions wereset upon with due consideration to the nature and special charac-teristics of their work, average life span, and order of the organiza-tion. Differential treatment of judges by the instant statutory provi-sion, then, has a legitimate basis, and does not violate the com-plainant's right of equality.

(3) The reasons for setting on the retirement age for judgesare to prevent improper performance of court work which may becaused by deterioration of mental and physical abilities of a judge ashe gets old, and to promote efficiency of court process through thereplacement of judges. Such a legislative objective is legitimate. Whilethere may be some difference in degree among different individuals, it is a scientifically proven fact that mental and physical abilities ofan individual generally deteriorates as an individual ages. It would beimpossible to achieve the aforementioned legislative objective if it isleft to each judge to determine for himself whether he is fit to handlejudical work. Furthermore, it is difficult to make objective obser-vation of deterioration of individual and subjective capacities of eachjudge. Then, it is appropriate as the means to achieve the legisla-tive objectives to set a certain retirement age for retirement ofjudges with due consideration to special characteristics of

the judge'swork and other objective conditions. The retirement age for judges set by the instant statutory provision is relatively high when com-pared to that for other public officials, and it is not too low comparedto that of judges in other countries which have adopted a retirement age limit system. Then, the instant statutory provision does not in-fringe on the freedom of occupation or the right to hold public office.

(4) This Court does not recognize order between constitutional pro-visions nor allow review for unconstitutionality of a constitutionalprovision. Therefore, Article 106 of the Constitution stipulating jobprotection of judges should be harmonious interpreted with Article 105(4) of the Constitution stipulating the retirement age of judges.In light of this, Article 106 should be interpreted to prohibit removal ofa judge from office except by impeachment or a sentence of imprison-ment without prison labor or heavier punishment as well as suspensionfrom office, reduction of salary, or any other unfavorable treatmentexcept by disciplinary action under the premise that each judge wouldretire upon reaching a certain retirement age. Under such inter-pretation, as long as the legislators do not abuse the legislative dis-cretion and infringe on the basic rights of an individual, legislationof a statutory provision setting an retirement age for judges underArticle 105(4) of the Constitution would not violate the Constitution.Since the instant statutory provision does not violate any basicrights of the complainant including the right to equality, freedom ofoccu-pation, and the right to hold public office, it does not violate Article106 stipulating job protection for judges.