Omission of Administrative Rule-making About Average Income Case

(14-2 KCCR 65, 2000Hun-Ma707, July 18, 2002)

In this case, the Constitutional Court declared that omission ofadministrative rule-making by the Minister of Labor about averageincome in spite of delegation of legislation by a statute violated theConstitution.

A. Background of the Case

Husbands of the complainants were sailors, and disappeared asthe ship they were aboard sank in a storm on their first day ofwork.Since there was no record of salary for the missing people aftertheywere hired by the ship owner, it was impossible to calculate their average wages(the amount calculated by dividing the total amountof wages paid to a relevant worker during three calendar monthsimmediately before the day on which a cause for calculating hisaverage wages occurred by the total number of calendar daysduring those three months) that would be used as the basis for calculationof the compensation to be paid to the surviving families under the Industrial Accident Compensation Insurance Act. Then the KoreaLabor Welfare Corporation only paid compensation amount using the minimum standard of compensation. The complainants instituted an administrative litigation for compensation, and filed the instant con-stitutional complaint, arguing that omission of administrative rule-making by the Minster of Labor infringed on the basic rights of thecomplainants because such omission is against the law delegatingtheMinister of Labor to determine and publicly announce the averagewage if it is not possible to determine the average wage using the

provisions of the related statutes.

B. Summary of the Decision

The Constitutional Court declared that omission ofadministrativerule-making to determine and publicly announce the average wagebythe Minster of Labor against the delegation of the related statutesisagainst the Constitution, by a majority vote of eight Justices, andruled as follows:

(1) Majority Opinion

A constitutional complaint against omission of administrativerule-making could be filed when the following conditions are met:First, the administrative agency should be under an obligationderived from the Constitution to make necessary administrative rule-making;Second, the administrative agency must not have made necessarylegislation after the elapse of a considerable period of time.

The labor laws delegate to the Minister of Labor the duty todetermine and publicly announce the average wage in order toprovidea detailed criterion appropriate for a specific case when it isimpossibleto determine the average wage, which is the basis to calculateretirement allowance under the Labor Standards Act andcompensation under the Industrial Accident Compensation Insurance Act, using theprovisions of the Labor Standards Act, or when inappropriate toemploysuch average wage. Thus, the Minister of Labor is under anobligationto make necessary administrative rule-making in accordance withthe above statutes. It would result in an infringement on the legislative power by the executive power if the administrative agency, contraryto delegation of legislation by the parental acts, does not makenecessary administrative rule-making, thus leaving a vacuum inlaw.Therefore, while the Constitution does not directly impose on theMinister of Labor to enact administrative legislation, it is a consti-tutional duty to enact necessary administrative rules andregulations. It has been 30 years since the related statutes have delegated rule- making to the administrative agency, and yet, the agency still hasnot performed its duty. Thus, omission of necessary rule-makingby the Minister of Labor infringes on the complainant's propertyrights and right to humane livelihoods.

(2) Dissenting Opinion of One Justice

The majority of Justices conclude that failure of the Minister ofLabor to prepare a standard to determine the average wage for along time is unconstitutional on the premise that it is anadministrative rule-making to decide the average wage. However, determination of the

average wage by the Minister of Labor is not an administrative rule-making, but is an administrative disposition in that it is a de-termination of an individual and specific standard for a specificcase.Therefore, the constitutional complaint filed on the premise thatomission of the Minister of Labor is an omission of rule-makingshould be dismissed.