Act on the Immigration and Legal Status of Overseas Koreans Case

(13-2 KCCR 714, 99Hun-Ma494, November 29, 2001)

Contents of the Decision

1. A case where subject matters of review were expanded to provi-sions in the Enforcement Decree inseparable from provisions ofthe Act on review.

2. Whether it is possible to file a constitutional complaint againstprovisions of an act before its promulgation.

3. Whether an Act bestowing benefits upon its legislation could in- fringe on the citizens' basic rights.

4. Whether a foreigner is entitled to basic rights.

5. Whether it violates the principle of equality not to apply the Acton the Immigration and Legal Status of Overseas Koreans to ethnicKoreans with foreign nationalities who emigrated prior to the es- tablishment of the Republic of Korea, which make up most of the ethnic Koreans in China and the former Soviet Union.

6. Decision of nonconformity to the Constitution and ordering tempo-rary application of provisions declared nonconforming to the Con-stitution.

7. A case where the decision of unconstitutionality of the definitionprovision was accounted by the decision of unconstitutionality on related provisions.

Summary of the Decision

1. Complainants only requested the constitutional review on Arti-cle 2[2] of the Act on the Immigration and Legal Status of Overseas Koreans. However, Article 3 of the Enforcement Decree of the Act,on the Immigration and Legal Status of Overseas Koreans, concretizesArticle 2[2] of the Act, and they regulate the same legal matter as aninseparable entity. Moreover, provisions of an enforcement decreecannot exist without provisions of the parental Act. Thus, the Courtshould include the above provision of the Enforcement Decree in thesubject matter of review, and Article 3[2] of the Enforcement Decree,the provision decisively excluding ethnic Koreans who emigrated priorto the establishment of the Republic of Korea, should be include asa matter of course. Also, since the complainants filed the instant constitutional complaint for pseudo legislative omission of the Actwhich bestowed certain benefits to ethnic

Koreans with foreign na-tionalities but denied the complainants the privileges set out in theAct, alleging that such legislation was against the principle of equality,Article 3[1] of the Enforcement Decree should also be included inthe subject matter of review.

2. Unless the President vetoes a bill and ultimately abrogates it,a bill retains its identity and becomes an act after its promulgation.Therefore, a constitutional complaint against such an act.

3. In the case of an "act bestowing certain benefits," an individu-al who is excluded as a beneficiary under the act becomes a party andcan claim that his or her right to equality has been violated by suchlegislation. If a decision of unconstitutionality or nonconformity tothe Constitution could effectively recover the state of equality for suchindividuals discriminated by the Act in relation to individuals benefitedby the Act, then an infringement on the basic rights is recognized.

4. A "foreigner" has a status similar to that of a "national," and therefore, a foreigner is entitled to the basic rights in principle.

5. The Act on the Immigration and Legal Status of Overseas Koreans provide a wide range of benefits to ethnic Koreans withforeign nationalities living abroad. The provisions on review in theinstant case distinguish ethnic Koreans who emigrated before the es-tablishment of the Republic of Korea from those who emigrated afterthe establishment of the Republic, and the Act provides various privi-leges to those belonging to the latter group, while denying those inthe first group the same privileges. However, ethnic Koreans be-longing to these two categories are identical in that they are ethnicKoreans with foreign nationalities. Whether an ethnic Korean emi-grated before the establishment of the Republic of Korea or after isnot a critical factor in the matter. However, the Act basically grantsall the requests of those who emigrated to a foreign country after theestablishment of the Korean Government (mostly Korean-Americans,especially first generation Korean-Americans with US citizenship),while ethnic Koreans who emigrated before the establishment of the Korean Government (mainly ethnic Koreans in China and the formerSoviet Union) were not included in the scope of application of theAct, thereby being denied opportunities they desperately seek - oppor-tunities to enter and exit and opportunities for employment in Korea. While the State cites socioeconomic and security reasons for this dis-criminatory legislation, such argument cannot be said to have gonethrough a thorough renew in the light of the fact that lawmakersoriginally planned to include ethnic Koreans who emigrated before theestablishment of the Korean Government but excluded them in thelatter process of legislation. The definition clause in the Act pro-fesses adoption of a neutral standard based on the former nationalityof ethnic Koreans. However, the provision in the Enforcement Decree requires those ethnic Koreans who emigrated before the establishmentof the Korean

Government, mostly ethnic Koreans living in China orthe former Soviet Union who were forced to leave their motherlandto join the independence movement, or to avoid military conscriptionor forced labor by the Japanese imperialist force, to prove that theywere explicitly recognized as Korean nationals before becoming foreigncitizens. Such requirement which effectively excludes these ethnicKoreans from receiving benefits under the Act does not have a le- gitimate basis. In sum, the statutory provisions in the instant casedenying the complainants and other ethnic Koreans who emigratedbefore the establishment of the Republic of Korea the privileges underthe Act, are arbitrary legislation without legitimate justifications, andthey are against the principle of equality stated by Article 11 of the Constitution.

6. Legislators are free to choose a particular means among manyoptions to restore the state of constitutionality when it is found thata statute is against the constitutional principle of equality. If theCourt renders a decision of simple unconstitutionality, all ethnicKoreans with foreign nationalities will be deprived of privileges theyenjoy under the Act from the time of the Court's decision. Thiswould bring a vacuum in law and much confusion in society, inad-missible to a Government by the rule of law. Therefore, the Courtfinds the instant provisions nonconforming to the Constitution butorders them to remain effective temporarily until the legislature re-vises the Act. The legislature has to revise the Act by December 31,2003 or the Act becomes invalid.

7. The statutory provisions on review in the instant case aredefinition clauses. The decision of unconstitutionality of a definitionclause would accompany the recognition of unconstitutionality ofother provisions in the Act dealing with ethnic Koreans with foreign nationalities, and it would be the same with lower rules, namely, theEnforcement Decree and the Enforcement Rule. Therefore, if legis-lators do not revise the Act in accordance with the Constitution byDecember 31, 2003, all related provisions in the Act, the EnforcementDecree, and the Enforcement Regulation would become null and void as of January 1, 2004.

Justice Kwon Seong's Concurring Opinion

The statutory provisions in the instant case use regional factors to decide the scope of application of the Act. In other words, under the present Act, ethnic Koreans who emigrated before the establish-ment of the Korean Government are classified into different categoriesbased on whether there is a Korean diplomatic establishment suchas an embassy or a consulate in the country of their residence, afterthe establishment of the Korean Government. A strict standardshould be used for the

equality review of discrimination based on sucha factor. Article 11(1) of the Constitution prohibits discrimination based on gender, religion or social status, and any actions consti-tuting discrimination in these domains should be scrutinized under astrict standard. In addition, discrimination based on regional back-ground or racial factors, being equally detrimental to social harmony,should also be reviewed using a strict standard. Under the standardof strict scrutiny, the instant statutory provisions discriminatingagainst ethnic Koreans who were not explicitly recognized as Koreannationals before becoming foreign citizens violates the principle ofproportionality, and hence, is against the principle of equality.

Dissenting Opinions of Justices Yun Young-chul,

Han Dae-hyun and Ha Kyung-chull

In a constitutional case where the violation of the principle ofequality becomes an issue, the Court should not make its decisionbased on whether a particular legislation is the "most reasonable andappropriate means" but on whether such legislation is "arbitrary ornot." Under the arbitrariness renew, legislation bestowing benefits tocitizens such as the instant Overseas Koreans Act is constitutionaleven if the means employed in the Act may not be enough to realizethe legislative objective to the fullest extent. In other words, the leg-islature needs not simultaneously address all the problems associ-ated with the legislative purpose. Instead, it may take one step at atime, and may choose to deal with an issue that seems most acuteat the time of legislation. Ethnic Koreans living abroad face differentpolitical, diplomatic, economic, and social conditions depending on thecountries of their residence. Upon legislation of the Act on the Im-migration and Legal Status of Overseas Koreans, the National Assem-bly recommended "Three Items to Improve the Present Legal SystemDealing with Overseas Ethnic Koreans," and accordingly, the Ministryof Justice has reviewed measures to provide ethnic Koreans in Chinawith more opportunities to obtain Korean nationality and other meansto relieve restrictions. Moreover, it is not unreasonable to takenecessary measures to avoid potential diplomatic friction that mayarise if dual citizenship is allowed, for it is the international customnot to allow dual citizenship as much as possible. Therefore, classi-fication made by the instant provisions is not arbitrary.

Parties

Complainants

1. Cho and 2 others

Counsel of record: Lee Seok-yeon

Holding

1. Article 2[2] of the Act on the Immigration and Legal Status ofOverseas Koreans (revised by Act No.6015 on September 2, 1999) andArticle 3 of the Enforcement Decree of the Act on the Immigrationand Legal Status of Overseas Koreans (revised by Presidential DecreeNo. 16602 on November 27, 1999) are nonconforming to the Consti-tution.

2. The instant statutory provisions shall remain effective tempo- rarily until the legislature revises the Act by December 31, 2003.

Reasoning

1. Overview of the Case and the Subject Matter of Review

A. Overview of the Case

The National Assembly legislated the Act on the Immigration andLegal Status of Overseas Koreans to facilitate overseas Koreans' entryinto and departure from the Republic of Korea and to stabilize theirlegal status in Korea. On August 12, 1999, the National Assemblypassed the bill, in an extraordinary session, and the bill was sent tothe President on August 19, 1999. The President promulgated theAct (Act no. 6015) on September 2, 1999, and the Act entered intoforce on December 3, 1999.

Complainants are ethnic Koreans with Chinese nationality andcurrently reside in the Republic of China (hereinafter called "China").On August 23, 1999, the complainants filed a constitutional complaint,arguing that Article 2[2] of the Act on the Immigration and LegalStatus of Overseas Koreans excluding a person and linear descendentsof a person who emigrated before the establishment of the Korean Government in 1948 from overseas Koreans as specified on th Act,thus denying the privileges bestowed by the Act, violated the humandignity and worth clause and the right to pursue happiness (Article10 of the Constitution) as well as the right to equality (Article 11 of the Constitution).

B. Subject Matter of Review

(1) Complainants' Request for Constitutional Review

Complainants filed a constitutional complaint only against Article2[2] of the Act on the Immigration and Legal Status of OverseasKoreans (revised by Act No.6015 on September 2, 1999, hereinaftercalled the "Overseas Koreans Act"). Contents of Article 2 of theOverseas Korean Act and Article 3 of the Enforcement Decree of theAct (revised by Presidential Decree No.16602 on November 27, 1999) related to Article 2 of the Act are as follows:

Act on the Immigration and Legal Status of Overseas Koreans(revised by Act No. 6015 on September 2, 1999)

Article 2 (Definitions)

The term "overseas Korean" in this Act means a person whofalls under any of the following subparagraphs:

1. A national of the Republic of Korea who has obtained the right of permanent residence in a foreign country or is resid-ing in a foreign country with an intent to living permanentlythere (hereinafter referred to as a "Korean national residingabroad"); and

2. A person prescribed by presidential decree, among thosewho once held the nationality of the Republic of Korea or theirlineal descendants, but who now has the nationality of a foreigncountry (hereinafter referred to as an " Ethnic korean withforeign nationality").

Enforcement Decree of the Act on the Immigration and LegalStatus of Overseas Koreans (revised by Presidential Decree No.16602 on November 27, 1999)

Article 3 (Definition of Ethnic Korean with Foreign Nationality)

"A person prescribed by presidential decree among those who onceheld the nationality of the Republic of Korea or their lineal descen-dants, but who now obtain the nationality of a foreign country" asused in Article 2[2] of the Act means a person who falls under anyof the following subparagraphs:

1. A person or lineal descendant of a person who emigratedafter the establishment of the Korean Government and who lostthe Korean nationality; and

2. A person or lineal descendant of a person who emigratedafter the establishment of the Korean Government and who wasexplicitly recognized as a Korean national before obtaining the nationality of a foreign country.

(2) Expansion of Subject Matter of Review

Persons to whom the Overseas Koreans Act is applied to "aKorean national residing abroad", or a national of the Republic ofKorea who has obtained the right of permanent residence in a foreigncountry or is residing in a foreign country with the intention topermanently live in a foreign country (Article 2[1] of the OverseasKoreans Act), and "a Korean with foreign nationality", or a person orlineal descendants of a person who was a Korean national but ob-tained the nationality of a foreign country and who was designatedby a presidential decree to be subject to the Act (Article 2[2] of theOverseas Koreans Act). However, Koreans with foreign nationalities are classified into two groups: one group consists of persons or linealdescendents of person who emigrated after the establishment of theKorean Government and who lost their Korean nationality (Article 3[1]of the Enforcement Decree of the Act); the other consists of persons or lineal descendants of a person who emigrated after the establish- ment of the Korean Government and who were explicitly recognizedas Korean nationals before obtaining the nationality of a foreigncountry (Article 3[2] of the Enforcement Decree of the Act). As aconsequence, the Overseas Koreans Act deny the application of theAct to ethnic Koreans with foreign nationalities who are "persons orlineal descendants of persons who emigrated before the establishment of the Korean Government and who were not explicitly recognized asKorean nationals before obtaining the nationality of a foreign country"(hereinafter called "ethnic Koreans who emigrated before the estab-lishment of the Korean Government"). As seen above, Article 3 ofthe Enforcement Decree of the Overseas Koreans Act concretizesArticle 2[2] of the Act, and they regulate the same legal matter asan inseparable entity. Moreover, provisions of an enforcement decree cannot exist without provisions of the parental Act. Thus, the Courtshould include the above provision of the Enforcement Decree in thesubject matter of review, and Article 3[2] of the Enforcement Decree,the decisive provision excluding ethnic Koreans who emigrated beforethe establishment of the Republic of Korea, should be included as amatter of fact. Also, since the complainants filed the instant consti-tutional complaint for pseudo legislative omission of the Act whichwas legislated to bestow certain benefits to ethnic Koreans withforeign nationalities but denied the complainants the privileges set outin the Act, alleging that such legislation was against the principle of equality, Article 3[1] of the Enforcement Decree should also beincluded in the subject matter of review. Therefore, the Court willreview the constitutionality of both Article 2[2] of the OverseasKoreans Act and Article 3 of the Enforcement Decree of the Act(hereinafter called the "statutory provisions of the instant case").

2. Complainants' Arguments and Opinions of Related

Agencies

A. Complainants' Arguments

(1) The Nationality Act adopts Jus Sanguinis (Article 2(1)[1],2(1)[2] of the Nationality Act), and Article 2(2) of the Constitutionmakes it a duty of the State to protect citizens residing abroad.Ethnic Koreans with foreign nationalities are included in the categoryof citizens living abroad in the broad sense. It would violate thehuman dignity and worth clause and the right to pursue happinessprotected by Article 10 of the Constitution to exclude complainantsand other ethnic Koreans who emigrated before the establishment ofthe Korean Government when legislating to protect other citizensresiding abroad.

(2) Ethnic Koreans who emigrated before the establishment of the Korean Government and persons or lineal descendants of persons whoemigrated after the establishment of the Korean Government and wholost their Korean nationality (hereinafter called "ethnic Koreans whoemigrated after the establishment of the Korean Government") are identical in that they are ethnic Koreans with foreign nationalities.The Overseas Koreans Act which provides diverse privileges only to ethnic Koreans who emigrated after the establishment of the KoreanGovernment upon the arbitrary standard of whether a person had theKorean nationality in the past, is discrimination without a reasonable basis, and violates the essential aspect of the right of equality statedin Article 11(1) of the Constitution.

(3) The statutory provisions in the instant case effectively limitthe scope of ethnic Koreans with Foreign nationality to those whoemigrated after the establishment of the Korean Government. Thisis tantamount to negating the legitimacy of the Provisional Republic of Korea Government, and it is against the Preamble of the Consti-tution, stating that the Republic of Korea upholds the cause of theProvisional Republic of Korea Government born of the March FirstIndependence Movement of 1919.

B. Opinion of the Minister of Justice

(1) Legal Prerequisites

(A) A constitutional complaint filed against legislative omissionscan be approved on limited conditions such as a legislative failure toperform a duty to enact a particular legislation that the Constitution expressly delegated to the legislature to protect certain basic rights.The instant case does not meet the required conditions, and theconstitutional complaint against the instant legislative omission isinappropriate.

Moreover, if an Act is to be subject to a constitu-tional review, it has to be at least promulgated, but the complain-ants filed this constitutional complaint against the Overseas KoreansAct on August 23, 1999, before the Act was promulgated. The instantcomplaint is also improper on these ground.

(B) A constitutional complaint based on Article 68(1) of the Con-stitutional Court Act can be filed only by an individual whose basicrights has been violated. The Overseas Koreans Act does not giverise to and bestow specific rights to certain individuals, and whatsome ethnic Koreans living abroad receive upon implementation of theAct are only incidental benefits. Therefore, even if the complain-ants were denied such benefits, the instant complaint does not satisfylegal prerequisites of a constitutional complaint.

(C) The complainants are "foreigners" with Chinese nationality.A natural person with foreign nationality can only file a constitutional complaint against the violation of natural basic rights. The OverseasKoreans Act is not a legislation about natural human rights, and theright of equality is generally not a basic right guaranteed to foreign-ers. Therefore, a foreigner cannot be a bearer of a basic right withregard to the Overseas Koreans Act, and the complaint filed by thecomplainants who are foreigners is not legally sufficient.

(D) There is no evidence that the complainants are ethnic Koreanswho emigrated to a foreign country or their lineal descendents (Theonly evidence regarding qualification of the complainants is a copyof passports proving that the complainants are Chinese nationals).Therefore, the complaint does not meet the prerequisite of self-relatedness, or the requirement that the restriction on basic rightsby the instant provisions must be related to the complainants them- selves, and hence, is inadequate.

(2) Review on the Merits

(A) There is a reason why the Overseas Koreans Act adopted the"Past Nationality Principle" when defining ethnic Koreans with foreignnationalities. Legislation adopting "Jus Sanguinis", or the principlethat a person's citizenship is determined by the citizenship of theparents, would be against the general principle of the public inter-national law and is contrary to international customs. Moreover, itcould bring about diplomatic friction with other countries. The defini-tion is also too vague so that it may be applied without limit. Alsoit may result in violating the international public law prohibiting dis-crimination of individuals based on race or nationality. Therefore,current international customs have adopted the "Past NationalityPrinciple". Ethnic Koreans in China

and the former Soviet Union are excluded and denied the privileges under the Act as a consequence ofadopting the "Past Nationality Principle", which explicitly stipulatesthe aforementioned process of confirming ethnic Koreans with foreignnationalities. There was no legislative intention to unreasonablydiscriminate against these individuals.

(B) Provisions in the Overseas Koreans Act aim to ease restric-tions imposed on economic activities of ethnic Koreans with foreignnationalities based on their preemptive rights in Korea. Therefore, thenecessity to apply these provisions to ethnic Koreans who emigrated before the establishment of the Korean Government is weak because they do not have any preemptive rights in Korea. Simplification ofregulations on entry and exit of ethnic Koreans who emigrated beforethe establishment of the Korean Government could lead to an influx ofethnic Koreans with Chinese nationality, relatively low-waged work-ers, into the nation's labor market and cause a significant numberof social problems. Under the ongoing South-North confrontation,there is also the risk of it being used by North Koreans as a routefor infiltration, thereby causing immediate security threats. It is alsovery likely that the State will face diplomatic frictions with Chinawho is extremely sensitive to nationalism among racial minoritieswithin its border if the Act were to include ethnic Koreans who emigrated before the establishment of the Korean Government aspotential beneficiaries of the Act. In this light, it can be concludedthat the legislators stayed within the boundary of their legislativediscretion when determining the scope of overseas Koreans to receivelightened regulation in such areas as exit from and entry in to thecountry with due consideration to such factors as socio-economicalstability and preventing unexpected danger.

(C) If the Court renders a decision of unconstitutionality against the statutory provisions in the instant case, the instant provisions ofthe Overseas Korean Act will become null and void. Thus about13,000 individuals from 60 countries including the United States ofAmerica, Germany, Argentina, and New Zealand, currently receiving benefits under the Act, may be forced to leave the country immedi-ately, or suffer restriction in real estate dealings or financial transac-tions. Such unexpected change in law will cause much demage toinnocent individuals.

3. Review on Legal Prerequisites

The Minister of Justice challenged the legal sufficiency of thecase on the following grounds: whether it is legitimate to file a con-stitutional complaint against legislative omission in the instant case;whether there actually exists infringement on basic rights; whethera foreigner is entitled to basic rights; and whether the complainantsmeet the

prerequisite of self-relatedness. Therefore, the Court willfirst examine these issues.

A. Legitimacy of the Constitutional Complaint

(1)Constitutional Complaint against a Legislative Omission

There are two types of legislative omissions: genuine legislativeomissions and pseudo legislative omission. A constitutional complaintchallenging a pseudo legislative omission must have a certain provi- sion as a subject, and affirmatively state the specific constitutionalviolations such as the violation of the principle of equality caused bythe provisions of defective legislation (8-2 KCCR 480, 489, 94Hun-Ma108, October 4, 1996; 12-1 KCCR 556, 565, 99Hun-Ma76, April 27, 2000). The statutory provisions on review in the instant case pro-vide certain benefits to some ethnic Koreans with foreign national-ities but deny the complainants and other ethnic Koreans who emi-grated before the establishment of the Korean Government such ben-efits because of the limited scope of the application of the Act. Inother words, the problem in the case is not that the legislature didnot have a legislation on overseas Koreans, especially ethnic Koreanswith foreign nationalities, but that the legislation was imperfect orinsufficient. Therefore, it is a case of a pseudo legislative omission,and the complaint challenging the constitutionality of the statutoryprovisions in the light of the principle of equality is legitimate.

(2) Constitutional Complaint against an Act before its

Promulgation

Unless the President vetoes a bill, the President has to promul-gate it within fifteen days after receiving the bill from the legisla- ture. If the President does not promulgate the bill within the lim-ited period of fifteen days, the bill becomes law (Article 53(5) of theConstitution). Therefore, unless the President vetoes the bill andultimately abrogates it, a bill retains its identity and becomes an act after its promulgation. In its earlier decision, the Court included a transitional clause of the new law which was not in existence at thetime of the request for constitutional review in the subject matterfor review (12-2 KCCR 167, 172, 97Hun-Ka12, August 31, 2000). In the light of this precedent, as long as the Act was promulgated andentered into force after the request for constitutional review, and com-plaints argue that basic rights, such as equality rights, have beeninfringed by the law, a constitutional complaint against provisions of the Act cannot be dismissed just because it was not promulgated at the time of the request for constitutional adjudication.

B. Infringement on the Basic Rights

In case of an "act infringing on people's rights", an individualwhose basic rights have been violated by regulation or restrictionimposed by the act becomes a party claiming an infringement on hisor her rights. On the other hand, in case of a "statute bestowingcertain benefits", an individual who is excluded from receiving bene-fits under the act becomes a party claiming that his or her right toequality has been violated by such legislation. In such case, theCourt could decide that there is an infringement on the basic rightsif a decision of unconstitutionality or nonconformity to the Consti-tution could effectively put an end to discrimination against suchindividual from the beneficiaries of the act. In the instant case, the complainants claim that there is a violation of the right of equality because the provisions of the instant Act deny the complainants theprivileges accorded by the Act, and the Court can review the casebased on its merits to put an end to such discrimination.

C. Foreigner's Entitlement to Basic Rights

A constitutional complaint under Article 68(1) of the Constitu-tional Court Act can only be filed by individuals whose basic rightshave been violated. Qualification for an individual to be a complain-ant whose basic rights has been violated means that only a personwho is a bearer of basic rights can file a constitutional complaint.In its earlier decision, the Court ruled that a "national" or a "foreigner"who has a status similar to that of a national can be the bearer of basic rights (6-2 KCCR 477, 480, 93Hun-ma120, December 29, 1994).Thus a foreigner is entitled to basic rights in principle. The com-plainants argue that their human dignity and worth and right to pur-sue happiness have been violated by the instant provisions. Theseare "human rights", and a foreigner can be the bearer of these rights.The right to equality is also a human right, and a foreigner's rightto equality can only be limited subject to the nature of the rightconcerned, such as the right to political participation, or the principleof reciprocity. In the instant case, the complainants do not asserttheir rights of equality in comparison to Korean nationals. Theyallege that their right of equality has been violated because of dis-crimination between ethnic Koreans with foreign nationalities. In thiscase, the complainants are entitled to the right of equality withoutany restriction imposed by the nature of the right concerned or theprinciple of reciprocity. Therefore, the complainants can be recognizedas bearers of basic rights.

D. Self-relatedness

Self-relatedness in a constitutional complaint is whether the stat- utory provisions on review could "possibly infringe on" the complain-ant's basic rights (47 KCCG 604, 409, 99Hun-Ma289, June 29, 2000).Since a constitutional complaint has the dual purpose, namely, the"subjective" function of providing legal relief to particular individuals and the "objective" function of protecting the constitutional order, the Court could recognize self-relatedness if the complainant successfullypersuades the Court that he or she is the bearer of the basic rightsat issue (6-2 KCCR, 395, 407, 89Hun-Ma2, December 29, 1994).Complainant Cho is an individual who emigrated to Manchuria from Soonchon Chollanam-Do in 1944 to escape forced labor upon receiv-ing a conscription notice by the Japanese colonialists, and Complain-ants Moon and Chun are second-generation ethnic Koreans whoseparents emigrated to Manchuria to avoid Japanese exploitation. Thecomplainants argue that they are being discriminated against, throughthe Overseas Koreans Act, and based on their argument, the Courtcan recognize that the complainants are indeed the bearers of thebasic rights at issue. Therefore, self-relatedness in this case cannotbe denied.

4. Review on Merits

A. Legislative Purpose and Contents of the Overseas

Koreans Act

(1) The legislative purposes of Overseas Koreans Act regarding ethnic Koreans with foreign nationalities are as follows (Gazette of the Korean Government 8-9, September 2, 1999). The Act has beenlegislated to promote globalization of the Korean society by en-couraging more active participation of ethnic Koreans living abroadin all spheres of the Korean society. The Act aims to encourageinvestment in Korea by simplifying regulations with regards to entryand exit, acquisition of real estate, financial transaction, and foreignexchange dealings of ethnic Koreans. Also, the Act focuses on dis-solving the discontents overseas Koreans have for their motherland,by selectively accepting their demands exemplified in their call fordual citizenship, while removing the side-effects on granting dualcitizenship, such as problems regarding military service, taxes, anddiplomatic relations, as well as the obstruction of national unity.

(2) The basic contents of the Overseas Koreans Act include thefollowing. First, the Act subdivides ethnic Koreans living abroad intotwo groups, namely, Korean nationals residing abroad and ethnicKoreans

with foreign nationalities (Article 2). The Act applies with respect to the entry into and departure from the Republic of Korea and the legal status therein of Korean nationals residing abroad andethnic Koreans with foreign nationalities who have the status ofsojourner (Article 3). Ethnic Koreans with foreign nationalities canstay in Korea with the status of sojourner for two years, apply forextension of the length of their sojourn, and enter or depart fromKorea without reentry permission from the State during such period(Article 10(1) - (3)). The Act guarantees ethnic Koreans with foreignnationalities who have obtained the status of sojourner the freedom ofemployment and other economic activities within the scope that theydo not impair social order or economic stability (Article 10(5)). Theyare entitled to equal rights with a Korean national in terms of theacquisition, possession, utilization, and disposal of real estate in theRepublic of Korea except lands within military installations protectionzone (Article 11(1)), and they will be made exempt from forced per- formance charges or fines as long as they register real estate origi- nally registered in the name of a title transferee under actual title- holder's name or dispose of the real estate through sale within oneyear after the Overseas Koreans Act enters into force (Article 11(2)).Ethnic Koreans with foreign nationalities also have equal rights toKorean nationals in the use of domestic financial institutions, exceptin the case prescribed by Article 18 of the Foreign Exchange Trans- actions Act (Article 12), and those who stay longer than ninety daysare entitled to medical insurance coverage pursuant to acts and sub-ordinate statutes related to medical insurance (Article 14).

(3) The legislature made a preliminary announcement on legisla- tion of the bill on September 29, 1998. In the original bill, "personswith Korean ancestor with foreign nationality" was defined as "anethnic Korean who obtained the nationality of a foreign country andwho was prescribed by the presidential decree to be subject to theAct" (Gazette of the Korean Government 15-16, September 29, 1998).The original provision was amended as some pointed out that suchlegislation could invite diplomatic friction with neighboring countries, because it concerned on the sensitive issue involving national policiestoward minorities (i.e. ethnic Koreans in China).

B. Basic Rights in Violation

The complainants argue that the statutory provisions on reviewviolates the human dignity and worth clause and the right to pursue happiness prescribed by Article 10 of the Constitution as well as theright to equality stipulated by Article 11 of the Constitution, and thatthey are against the Preamble of the Constitution which states thatthe Republic of Korea upholds the cause of the Provisional Republic of Korea Government

born of the March First Independence Movement of1919. But, the problem at issue is that the complainants are deniedprivileges under the Overseas Koreans Act because of the instant pro-visions. The statutory provisions do not violate the human dignityand worth clause and the right to pursue happiness, hitherto enjoyedby the complainants. Therefore, the Court only needs to reviewwhether the instant provisions violate the right of equality of thecomplainants in comparison to other ethnic Koreans with foreignnationalities who are granted special benefits under the OverseasKoreans Act.

C. Unconstitutionality of the Instant Statutory

Provisions

(1) Meaning of the Principle of Equality

Article 11(1) of the Constitution states that "all citizens shall beequal before the law, and there shall be no discrimination in political,economic, social or cultural life on account of gender, religion, orsocial status." The principle of equality prescribed by Article 11(1)is the supreme principle in the field of protection of basic rights. It provides a standard which the state must abide by in interpreting or executing laws, and it is a mandate by the State not to discriminatewithout a reasonable basis. Everyone is entitled to the right to claimequal treatment, and the right to equality is the most basic of allbasic rights (1 KCCR 1, 2, 88Hun-Ka7, January 25, 1989). The con-stitutional principle of equality, however, does not require absoluteequality negating any form of differential treatment whatsoever.Rather, it means relative equality forbidding discrimination in legis-lating and executing laws without reasonable basis. Therefore, differ-entiation or inequality with reasonable basis is not against the prin-ciple of equality. Whether a discrimination is grounded on a reason- able basis or not depends on whether such discrimination is a neces-sary and adequate means to achieve a legitimate legislative purpose,while upholding the constitutional principle for respect for human dig-nity (6-1 KCCR, 72, 75, 92Hun-Ba43, February 24, 1994; 10-2 KCCR 461, 476, 98Hun-Ka7 and etc., September 30, 1998).

(2) Standard and Effect of Discrimination

(A) The Act classifies a group of Koreans with foreign national-ities (Article 2[2] of the Overseas Koreans Act) into two categories: one group consists of persons or lineal descendents of persons whoemigrated after the establishment of the Korean Government and who lost Korean nationality (Article 3[1] of the Enforcement Decree of theAct); the other consists of persons or lineal descendants of personswho emigrated after

the establishment of the Korean Government andwho were explicitly recognized as Korean nationals before obtainingthe nationality of a foreign country (Article 3[2] of the EnforcementDecree of the Act). As a consequence, the Overseas Koreans Actdeny the privileges under the Act to ethnic Koreans with foreignnationalities who are "persons or lineal descendants of persons whoemigrated before the establishment of the Korean Government and who were not explicitly recognized as Korean nationals before ob-taining the nationality of a foreign country". This is because of thefollowing reasons: According to Article 2(1) of the Enforcement Reg-ulation of the Act on the Immigration and Legal Status of OverseasKoreans, "a person who was explicitly recognized as a Korean na-tional" is an individual who registered oneself at one of the Koreandiplomatic establishments or at other authorized agencies or organi- zations in the country of his or her residence, pursuant to the pro- visions of the Registration of Korean Nationals Residing Abroad Act(enacted on November 24, 1949 as Act No.70; wholly amended onDecember 28, 1999 by Act No. 6057); Because Korea and China agreedto establish diplomatic relations with each other on August 24, 1992and because the Korean embassy in China opened on August 28, 1992(The Beijing Office of the Korea Trade-Investment Promotion Agency,or KOTRA, opened on January 30, 1991), it was physically impossiblefor ethnic Koreans in China to fulfill the registration requirement;The situation is not much different for Koreans living in the formerSoviet Union ("Investigation Report" on the Bill on the Immigrationand Legal Status of Overseas Koreans by the Legislation and Judici-ary Committee of the National Assembly, p. 8, August 1999).

(B) The statutory provisions on review are definition clauses onethnic Koreans with foreign nationalities, and an individual classified as an ethnic Korean with a foreign nationality under the Act receivesa wide variety of benefits and privileges as seen above. In prin-ciple, ethnic Koreans with foreign nationalities are "foreigners", and,therefore, they cannot become public officials of the Republic of Korea(Article 35 of the State Public Officials Act; Article 33 of the LocalPublic Officials Act; Article 9 of the Diplomatic Public Officials Act).They also cannot enjoy the freedom of residence and the right tomove at will (Article 14 of the Constitution; Article 7 and 17 of theImmigration Control Act), freedom of occupation (Article 15 of theConstitution; Article 5 of the Fisheries Act; Article 6 of the PilotageAct), right to property (Article 23 of the Constitution; Article 3 of the Foreigner's Land Acquisition Act; Article 25 of the Patent Act;Article 6 of the Aviation Act), right to vote and right to hold publicoffice (Article 24 and 25 of the Constitution; Article 15 and 16 ofthe Act on the Election of Public Officials and the Prevention ofElection Malpractices), right to claim compensation (Article 29(2) ofthe Constitution; Article 7 of the State Compensation Act), right toreceive aid for injury from criminal acts (Article 30 of the

Consti-tution; Article 10 of the Crime Victims Aid Act), right to vote onReferendum (Article 72 and 130(2) of the Constitution; Article 7 of the National Referendum Act) and other social rights, or can onlyenjoy them in a limited fashion (12-2 KCCR 167, 183, 97Hun-Ka12,August 31, 2000). The Overseas Koreans Act lifts some of these re-strictions for a limited group of ethnic Koreans with foreign nation-alities, and the standard employed to distinguish qualified benefici-aries under the Act discriminates against the complainants and otherethnic Koreans who emigrated before the establishment of the Re-public of Korea in their exercise of basic or legal rights.

(3) Violation of the Right to Equality

(A) The principle of equality prohibits the legislature from treat-ing essentially equal things arbitrarily unequally, or treating unequalthings arbitrarily equally. The legislature violates the principle ofequality when it enacts laws discriminating facts that are essentiallyequal without reasonable justification for the discrimination. Whenthings being compared are identical not in every aspect, but only incertain aspects, whether to see them as identical in legal terms ornot depends on the standard employed to determine such identity.In general, such standard draws upon the intent and meaning of thestatute in question (8-2 KCCR 680, 701, 96Hun-Ka18, December 26,1996). As we have seen previously, the provisions on review dis-tinguish ethnic Koreans who emigrated after the establishment of theRepublic of Korea, mostly Korean-Americans in the US or ethnicKoreans in European countries, from those who emigrated before theestablishment of the Republic of Korea, mainly ethnic Koreans inChina and the former Soviet Union. The Overseas Koreans Actprovides various privileges to those belonging to the first group whiledenying those in the latter group the same privileges. However,ethnic Koreans belonging to these two categories are identical in thatthey are ethnic Koreans with foreign nationalities. The only differ- ence between them is the time of their emigration. This differenceis not so essential as to affect equal treatment of individuals belong-ing to the two groups. In other words, whether ethnic Koreansemigrated before or after the establishment of the Republic of Koreacannot be a decisive factor warranting discrimination between thetwo groups.

(B) Legislation discriminating a group of people from others nat- urally has a specific legislative objective. In order for such discrimi-nation with regard to basic rights to be a reasonable one, the objec-tive should be legitimate and in accordance with the Constitution. Inaddition, the standard for such discrimination should be substantially related to the legislative purpose, and resulting discrimination should not be excessive (8-2 KCCR 46, 56, 93Hun-Ba57, August 29, 1996).

The Overseas Koreans Act provides a wide scope of benefits andprivileges to an ethnic Korean who emigrated to a foreign countryafter the establishment of the Korean Government, and virtually grantshim or her a status as that of a dual citizenship. However, the stat-utory provisions on review deny such privileges to an ethnic Koreanwho emigrated before the establishment of the Korean Government, thereby treating him or her merely as another foreigner. As such,the Overseas Koreans Act grants basically all the requests of thosewho emigrated to a foreign country after the establishment of theKorean Government (mostly Korean-Americans, especially first gen-eration Korean-Americans with US citizenship), while ethnic Koreanswho emigrated before the establishment of the Korean Government(mainly ethnic Koreans in China and the former Soviet Union) werenot included in the scope of application of the Act, thereby beingdenied opportunities they desperately seek - opportunities to enter andexit Korea and opportunities for employment in Korea. Supplementa-ry measures to meet the needs of the ethnic Koreans in the lattergroup proposed by the Ministry of Justice are not giving sufficient help to ethnic Koreans with foreign nationalities. The fact that theAct was legislated based on the requests of ethnic Koreans whoemigrated after the establishment of the Korean Government cannotbe a decisive factor justifying such great discrimination. Needs ofethnic Koreans who emigrated before the establishment of the Korean Government are equal to, if not greater than, those of ethnic Koreanswho emigrated after the establishment of the Korean Government.While the State cites socio-economic and security reasons for thisdiscriminatory legislation, such argument cannot be said to have gonethrough a thorough review in the light of the fact that lawmakersoriginally planned to include ethnic Koreans who emigrated before theestablishment of the Korean Government but excluded them in thelatter process of legislation. It does not seem that the State con-ducted a thorough research and analysis of possible results of legis-lation which includes ethnic Koreans who emigrated before the estab-lishment of the Korean Government within the scope of the Act.

The State argues that ethnic Koreans who emigrated before theestablishment of the Korean Government are excluded and denied theprivileges under the Act as a consequence of the adoption of the "PastNationality Principle" when defining ethnic Koreans with foreign na-tionalities in the Act, according to international customs. The State emphasizes that legislation adopting "Jus Sanguinis", or the principlethat a person's citizenship is determined by the citizenship of theparents, would be against the general principle of public internation-al law and contrary to international customs; that it could bring aboutdiplomatic friction with other countries; and that the notion is toovague so that the application of the Act may be extended withoutlimit. The State

cited Ireland, Greece and Poland as countries adopt- ing the "Past Nationality Principle" and allowing special treatment inentry and departure of expatriates who obtained the nationality ofanother country ("Investigation Report" on the Bill on the Immigra-tion and Legal Status of Overseas Koreans by the Legislation and Judiciary Committee of the National Assembly, p. 8, August 1999).However, the extent of past nationality recognized in these countries is drastically different from that in the instant case. Although there may be an apprehension of diplomatic friction, the instant provisionsdefining ethnic Koreans with foreign nationalities cannot be seen asa necessary and adequate legislation resulting from a through reviewof policy alternatives. Instead of enacting a singular special act toaddress the existing difficulties that ethnic Koreans with foreignnationalities face in Korea, the State should first have reviewed if itwould be possible to achieve the same objective by individuallyrelieving restrictions, considering all circumstances. If legislationadopting "Jus Sanguinis" has problems, instead of approaching thematter by guaranteeing a certain legal status to ethnic Koreans withforeign nationalities, it would be better if the State started by im-proving the status of foreigners in Korea in general while focusingon supporting the activities aiming to instill a sense of national iden-tity and strengthen cultural solidarity in the countries of their resi- dence in the case of overseas Koreans.

(C) As we have seen previously (Section 4(A)(3)), ethnic Koreanswho emigrated before the establishment of the Korean Government areexcluded and denied the privileges under the Act not because theState adopted the "Past Nationality Principle" from the beginning.The State adopted the "Past Nationality Principle", a somewhat neutralterm, in the Overseas Korean Act in defining ethnic Koreans withforeign nationalities, while through the Enforcement Decree, requiringthose ethnic Koreans who emigrated before the establishment of theKorean Government, mostly ethnic Koreans living in China or theformer Soviet Union who were forced to leave their motherland tojoin the independence movement, or to avoid military conscription orforced labor by the Japanese imperialist force, to prove that they wereexplicitly recognized as Korean nationals before obtaining foreigncitizenship, thereby making it virtually impossible for these ethnicKoreans to receive benefits bestowed under the Act. Legislation ofan act discriminating ethnic Koreans who were involuntarily displaceddue to historical turmoil sweeping over the Korean peninsula cannotbe justified from a humanitarian perspective, let alone from a nationalperspective, in the sense that no country on earth has legislated anact to discriminate against such compatriots, when it seems only ap-propriate to assist them. The public interest to be achieved by this legislation is too minor compared to the injury inflicted on individu- als being discriminated by the Act.

Article 2 of the Overseas Korea Foundation Act (enacted onMarch 27, 1997, by Act No. 5313) which was legislated before theOverseas Koreans Act defines overseas Koreans as persons with the nationality of the Republic of Korea who have stayed overseas for along time or who have obtained the permanent resident status in aforeign country (Article 2[1]) or persons with Korean lineage whoreside and make a living in a foreign country regardless of their na-tionality (Article 2[2]). The first definition corresponds to "Koreannationals residing abroad" under the Overseas Koreans Act, and thesecond corresponds to "Koreans with foreign nationalities". The twoActs may differ in their respective legislative purposes, but it wouldlead to confusion in the application of the Acts if different defini- tions are to be used for the same term ("overseas Koreans") in thetwo Acts.

(4) Sub-conclusion

In sum, discrimination based on the statutory provisions in theinstant case that deny the complainants and other ethnic Koreans whoemigrated before the establishment of the Republic of Korea the priv-ileges under the Act is arbitrary and is without legitimate reasons.Since the standard used for such discrimination is not substantiallyrelated to achieving the legislative purpose and the extent of dis-crimination cannot possibly be seen as reasonable, these provisionsare against the principle of equality stated in Article 11 of theConstitution, and thereby violate the complainants' right to equality.

D. Decision of Nonconformity to the Constitution and

Order for Temporary Application

(1) When a statutory provision violates the Constitution, theCourt must in principle issue a decision of unconstitutionality andthereby protect the normative power of the Constitution. However,when the elimination of statutory provision from the codes may causea vacuum or confusion in law, the Court can issue a decision ofnonconformity to the Constitution and leave the statutory provisiontemporarily effective. In other words, if an unconstitutional state of leaving the unconstitutional statutory provision temporarily effectiveis constitutionally far more desirable than a constitutional state of vacuum in law brought on by a decision of unconstitutionality, theConstitutional Court may need to prevent vacuum in law and theresulting disorder. The vacuum in law and the resulting disorderare unacceptable to the government by rule of law. So the mostfeasible decision is to leave the unconstitutional statutory provisiontemporarily effective for a limited period until the legislature improvesit in the manner consistent with the Constitution

(11-2 KCCR 383,417, 97Hun-Ba26, October 21, 1999).

In a case where a statute is against the principle of equality, itis up to the legislature to choose the means to restore the consti-tutionality in the legal order when the Constitution does not specifyemployment of a particular means and when there are many ways toremove the unconstitutional state at hand. The Court could render a decision of unconstitutionality to restore the state of constitution-ality infringed by a violation of the principle of equality. However,this would form a legal state unprovided by the Constitution andwithout the consideration of the legislature, and it would ultimatelyinfringe on the formative power of the legislature. Because of thesereasons, the Court avoids the decision of simple unconstitutionalityand renders a decision of nonconformity to the Constitution.

(2) The Overseas Korean Act entered into force on December 3,1999, and according to the report submitted by the Ministry of Justi-ce, as of August 30, 2001, 23,664 individuals reported their Koreanresidences under Article 6 of the Act. Of these, 10,532 are Koreannationals residing abroad, and 13,132 are ethnic Koreans with foreign nationalities. These individuals currently enjoy the privileges granted by the Overseas Koreans Act. If the Court were to render a decisionof unconstitutionality against the statutory provisions in the instantcase, the aforementioned ethnic Koreans with foreign nationalities will be instantly deprived of the status they enjoy under the Act from thetime of the Court's decision. Accordingly, they will be forced to leavethe country immediately. They will also be forced to stop all theireconomic activities in Korea including real estate acquisitions and use of domestic financial institutions, and medical insurance coverage forthese individuals will no longer be available. This would bring avacuum in law and much confusion in society, inadmissible to aGovernment by the rule of law. To prevent such vacuum in law, theCourt needs to leave the unconstitutional statutory provision tempo-rarily effective until the legislature improves it in the manner con- sistent with the Constitution. Considering the unconstitutional as-pects of the instant statutory provisions, the legislature should enacta revision to the Act as soon as possible, by December 31, 2003 atthe latest, to remove the unconstitutional aspects of the Act.

(3) The statutory provisions on review are definition clauses. A decision of unconstitutionality of a definition clause would accompanythe recognition of the unconstitutionality of related provisions. Inother words, if Article 2 of the Act defining ethnic Koreans with for- eign nationalities is found unconstitutional, then Article 5, 10, 11, and16 (revised by Act No.6307 on December 29, 2000) of the OverseasKoreans Act which exclusively apply to ethnic Koreans with foreign nationalities, as well as parts of Article 6, 7, 8, 12, 14, and 17 of theAct dealing with

ethnic Koreans with foreign nationalities are uncon-stitutional. The same applies to the provisions in the EnforcementDecree and Enforcement Regulation. This is because of the followingreasons: When a provision of an act delegates the particulars of a certain matter to lower rules, such as a presidential decree, and ifthe Court renders a decision of unconstitutionality against the provi-sion of the act, not only does the provision of the act but also thelower rules such as the presidential decree delegated by the instantprovision lose effect; The provisions in the lower rules lose effectbecause there no longer exists a legal basis for formulation of theseprovisions when the provision in the act loses its effect upon thedecision of unconstitutionality. (95Nu11405, Supreme Court, April 9,1996). Therefore, if the legislators do not revise the Act in accor- dance with the Constitution by December 31, 2003, all related provi-sions in the Act, the Enforcement Decree, and the Enforcement Regu-lations will become null and void as of January 1, 2004. Accordingly,the ordinary courts, other state agencies, and local governments will not be able to apply these provisions.

5. Conclusion

Thus, the Court finds the instant statutory provisions noncon-forming to the Constitution but orders them to remain effective tem-porarily until the legislature revises the Act. This decision is pur- suant to the consensus of all Justices except Kwon Sung who wrotea separate concurring opinion and Justices Yoon Young-chul, HanDae-hyun and Ha Kyung-chull who wrote a dissenting opinion.

6. Justice Kwon Seong's Concurring Opinion

I think it is necessary and possible to analyze the unconstitu-tionality of the instant statutory provisions using the standard ofstrict scrutiny employed for review of the violation on the principleof equality.

A. As the majority opinion indicates, persons to whom the Over- seas Koreans Act applies include "a Korean national residing abroad",or a national of the Republic of Korea who obtained the right ofpermanent residence in a foreign country or is residing in a foreigncountry with the intention of permanently living in a foreign country(Article 2[1] of the Overseas Koreans Act), and "a Korean with for-eign nationality", or a person or lineal descendants of a person whowas a Korean national, but obtained the nationality of a foreign coun-try and who was designated by a presidential decree to be subject to special privileges under the Act (Article 2[2] of the Overseas KoreansAct). However, Koreans with foreign nationalities are subdividedinto two groups: one group consists of persons or lineal descendentsof persons who emigrated after the

establishment of the KoreanGovernment and who lost the Korean nationality (Article 3[1] of theEnforcement Decree of the Act); the other consists of persons orlineal descendants of persons who emigrated after the establishmentof the Korean Government and who were explicitly recognized asKorean nationals before obtaining the nationality of a foreign country(Article 3[2] of the Enforcement Decree of the Act). As a conse-quence, the Overseas Koreans Act deny the privileges under the Actto ethnic Koreans with foreign nationalities who are "persons or linealdescendants of persons who emigrated before the establishment ofthe Korean Government and who were not explicitly recognized asKorean nationals before obtaining the nationality of a foreign country" (hereinafter called "ethnic Koreans without explicit recognition of theirnationality").

In sum, among the ethnic Koreans who emigrated before the es-tablishment of the Korean Government1)and who obtained the nation-ality of foreign countries2)are individuals who obtained foreign na-tionality after being explicitly recognized as Korean nationals andindividuals who obtained foreign nationality without being explicitlyrecognized as Korean nationals. The Overseas Koreans Act denythe benefits and privileges under the Act to those individuals in the latter group.

B. To be "explicitly recognized as a Korean national" means toregister oneself at one of the Korean diplomatic establishments or at other authorized agencies or organizations able to process such reg-istration in the country of his or her residence3)pursuant to the Na-tionality Act4), the Registration of Korean Nationals Residing AbroadAct5), and the Act on the Establishment of Overseas Diplomatic andConsular Missions of the Republic of Korea6). Since there couldhave been no Korean diplomatic establishment before August 15, 1948,it was originally impossible for an ethnic Korean who obtained thenationality of a foreign country prior to that time to be explicitlyrecognized as a Korean national. It was also impossible for anethnic Korean who emigrated after the establishment of the KoreaGovernment on August

15, 1948 and obtained the nationality of aforeign country to be explicitly recognized as a Korean national ifthere was no Korean diplomatic establishment in the country of theirresidence at the time he or she obtained the nationality of a foreign country.

C. The present Overseas Koreans Act employs two standards todivide ethnic Koreans who emigrated prior to the establishment ofthe Korean Government.

The first of such standards is whether an ethnic Korean obtainedforeign nationality before or after the establishment of the KoreanGovernment. In the case an ethnic Korean who obtained foreignnationality before the establishment of the Korean Government, the Overseas Koreans Act cannot be applied to that individual (since itwas impossible for the ethnic Korean to get recognized as a Koreannational before the foundation of the Republic of Korea). On theother hand, if an ethnic Korean obtained the foreign nationality afterthe establishment of the Korean Government, application of the Over-seas Koreans Act to that individual depends on whether there was a diplomatic establishment in the individual's country of residence.

The second standard employed is whether there was a Korean diplomatic establishment in the country of residence of the ethnicKorean at the time when he or she obtained foreign nationality. Ifthere was no Korean diplomatic establishment in the country of resi- dence, the Overseas Koreans Act cannot be applied to that individual(since it was impossible for the ethnic Korean to be recognized as aKorean national because of an absence of an authorized agency inthe country of his or her residence). On the other hand, if therewas a Korean establishment in the country of residence, the Over-seas Koreans Act can be applied to that individual.

D. The first standard employed by the Overseas Koreans Act, a time factor, discriminates against ethnic Koreans who obtained theirforeign nationality before the establishment of the Korean Governmentby excluding them from the Act altogether. Since it is unavoidable to designate a critical date to enforce the Overseas Koreans Act andit is up to the legislature to decide on what such date should be,the Court should refrain from reviewing the constitutionality of dis-crimination based on the first standard. However, the Court shouldreview the constitutionality of discrimination based on the secondstandard.

The second standard employed is whether there was a Koreandiplomatic establishment in the country of residence of the ethnicKorean (in case of lineal descendents of such individual, their birth-place) at the time when he or she obtained foreign nationality. This is employment of a regional factor as a basis for discrimination underthe Overseas Koreans Act.

Whether to establish a diplomatic mission in a particular foreignnation is a problem of choice in the area of absolute policy issues.However, this cannot be used as a standard to decide whether tobestow a particular ethnic Korean with foreign nationality with priv-ileges similar to those of a Korean national. In other words, a stand-ard used to decide whether to establish a diplomatic mission in aparticular country and a standard used to decide the status of a par-ticular ethnic Korean with foreign nationality are two separate matters.In this light, I think a strict standard should be used for equalityreview of the constitutionality of discrimination against ethnic Koreans without explicit recognition of their nationality based on whether therewas a Korean diplomatic establishment in the particular country oftheir residence, a regional factor. The reasons are as follows.

Article 11(1) of the Constitution prohibits discrimination based ongender, religion or social status, and any discrimination by these three factors should be scrutinized under a strict standard. (11-2 KCCR 732,98Hun-Ba33, December 23, 1999; 11-2 KCCR 770, 98Hun-Ma363,December 23, 1999).

Discrimination based on these three factors represented the social vices existing at the time of the enactment of the Constitution. Suchdiscrimination had to be overcome as it was inhumane, against de-mocratic ideals, and detrimental to cultural development, and thefounders felt the need to ban any form of inequality based on thesefactors through the Constitution. However, there may also be dis-crimination based on factors other than the three stipulated by theConstitution which may be as cruel, if rare, as discrimination basedon gender, religion or social status. Such discrimination may not havebeen proscribed by the Constitution because the founders felt that in-equality resulting from such discrimination had been overcome ideo- logically and nearly overcome in reality at the time of enactment ofthe Constitution. But if such discrimination were to reappear, a strictstandard must be used to review its constitutionality even though it does not fall under Article 11(1) of the Constitution. Discriminationbased on regional factors such as the birthplace or place of resi-dence of an individual, or discrimination based on race is not prohi-bited by Article 11(1) of the Constitution, but such discriminationneeds to be reviewed for its constitutionality using a strict standard.

Discrimination based on regional factors is as inhumane as dis-crimination based on race. Such discrimination should be bannedbecause it obstructs social integration and hinders the exercise ofthe freedom and creative initiative of individuals7).

As seen above, the instant statutory provisions discriminateagainst ethnic Koreans with foreign nationalities who reside in acountry where there is no Korean diplomatic establishment fromethnic Koreans with foreign nationalities who reside in a countrywhere there is a Korean diplomatic establishment. This is discrimi-nation based on a regional factor, and its constitutionality naturallyneeds to be scrutinized using a strict standard.

E. Since the majority of Justices declared the statutory provisionsunconstitutional using a relaxed standard and expounded their rea- soning process, it would not be necessary to explain the unconsti- tutionality of the instant provisions when scrutinized under a strictstandard, but I will summarize the conclusion of the constitutionalreview using a strict standard. The Overseas Koreans Act discrimi-nates against ethnic Koreans without an explicit recognition of theirnationality for economic reasons and for convenience in administrativeregulation, and this places the legitimacy of the Act in doubt. It isnot impossible to come up with alternative measures to avoid dif-ficulties that may arise when all ethnic Koreans with foreign nation-alities are treated equally, while minimizing discrimination againstethnic Koreans without explicit recognition of their nationality. Thereis no fixed formula for the installation and closure of overseas dip-lomatic establishments. Diplomatic establishment may be in operationwhen an ethnic Korea moves to a particular country but may nolonger be in existence when the individual is about to obtain the for-eign nationality. Discrimination based on such a variable factor initself is not appropriate. Therefore, discrimination at issue does notpass the appropriateness of means test and does not meet the ruleof least restrictive means. Moreover, the public interest achieved bysuch discrimination is not greater than the private interest of ethnic Koreans without explicit recognition of their nationality. In conclu-sion, the instant statutory provisions which discriminate ethnic Koreanswithout explicit recognition of their nationality violates the principle of proportionality, and hence, is against the principle of equality.

7. Dissenting Opinion of Justices Yun Young-chul, Han

Dae-hyun and Ha Kyung-chull

We do not think the instant statutory provisions are unconstitu- tional because of the following reasons.

A. The Constitutional Court and the legislature are both boundby the Constitution, but the nature of the duty is not the same. Toaffirmative policy-making institutions such as the legislature, the

Constitution acts as guidance and as a limit on actions, or as thenorm for behavior. However, to the Constitutional Court, the Consti-tution acts as the standard against which to evaluate the constitu-tionality of the actions of other government institutions, or as thenorm for control. Thus, as the norm for behavior, the principle of equality requires the legislature to treat people equally in the sub-stantive sense of "treating equals as equals and treating unequals as unequals." On the other hand, as the norm for control, the principleonly requires the Court to develop a standard to prohibit arbitrari-ness in the exercise of legislative power, and the Court may recognizethe violation of this principle only when there is no reasonable jus-tification for discrimination in legislative policy. In other words, the legislative body's duty to realize the principle of equality is reducedto the rule against arbitrariness for the Constitutional Court. In aconstitutional case where the violation of the principle of equalitybecomes an issue, the Court should not make its decision based on whether a particular legislation is the "most reasonable and appro-priate means", but on whether such legislation is "within the consti-tutional limits" or whether such legislation is "arbitrary or not".The legislature's policy-making power and the functional separationof powers in a democratic country can best be secured this way(9-1 KCCR 91, 115, 90Hun-Ma110 and etc., January 16, 1997; 10-2KCCR 504, 98Hun-Ka7 and etc., September 30, 1998).

B. According to the arbitrariness review, legislation bestowingbenefits to citizens such as the instant Overseas Koreans Act is con- stitutional even if the means employed in the Act may not be enoughto realize the legislative objective to the fullest extent. In otherwords, the legislature needs not simultaneously address all the prob-lems associated with the legislative purpose. Instead, it may take onestep at a time, and may choose to deal with an issue that seemsmost acute at the time of legislation. In such case, the legislator canexercise its discretion to enact the statute which it deems is appro-priate after giving due consideration to such factors as the legisla-tive purpose, current conditions of potential beneficiaries, and federalbudget or ability for compensation. Through its precedents, the Courthas ruled likewise as follows:

Even under the constitutional principle of equality, the State isvery much free to choose when, where, and for whom it would start taking measures to improve upon the present conditions or the pres- ent system regarding basic rights. In other words, the State shouldhave an option to take a gradual approach to improve the presentsystem to embody high ideals under a reasonable standard, using itspresent capabilities. If this is not allowed, the State cannot makeimprovement on any existing system except in the very few cases where it is possible to improve upon all aspects of the system foreveryone concerned simultaneously,

because doing otherwise would violate the principle of equality. Such conclusion is clearly unrea-sonable, and is against the intent of the principle of equality (2 KCCR178, 197, 89Hun-Ma107, June 25, 1990; 3 KCCR 11, 25, 90Hun-Ka27, February 11, 1991; 5-2 KCCR 622, 640, 89Hun-Ma189, December 23,1993; 10-2 KCCR 819, 834, 98Hun-Ka1, December 24, 1998).

C. Ethnic Koreans living abroad face different political, diplomatic,economic, and social conditions depending on the countries of theirresidence. It should not be ignored that the differences exist among ethnic Koreans with foreign nationalities as well as between Koreannationals residing abroad and ethnic Koreans with foreign national-ities. Upon legislation of the Act on the Immigration and LegalStatus of Overseas Koreans, the National Assembly recommended"Three Items to Improve the Present Legal System Dealing withOverseas Ethnic Koreans" to the Ministry of Justice and the Ministryof Foreign Affairs and Trade. The recommendation included simpli-fied naturalization procedures for alienated ethnic Koreans such asethnic Koreans in China; system reform and government support tosecure the livelihood of ethnic Koreans with illegal alien status andtheir return to the countries of their residence; and adoption of policyto designate Korean-Chinese in Korea as a special group of peoplerequiring governmental protection. Accordingly, the Ministry of Jus-tice revised and enforced the "Guide for Affairs Dealing with Statusof Ethnic Koreans in China" to give more opportunities for ethnic Koreans in China to attain Korean nationality. The Ministry alsoformulated and enforced "Measures to Supplement the EnforcementDecree of the Overseas Koreans Act (Management of Entry and Stayof ethnic Koreans in China)" to enforce multiple measures designedto simplify restrictions imposed on these individuals. As a result,much of the existing discriminatory treatment has been relieved.Moreover, it is not unreasonable to take necessary measures to avoidpotential diplomatic friction with other countries that may arise if dualcitizenship is allowed, as there still exists a principle in interna-tional law avoid dual citizenship.

In this light, classification made by the instant provisions hasits reasons, and is not unreasonable nor arbitrary.

D. While it may be necessary to accord ethnic Koreans in China with additional support from national and humanitarian perspectives,it is a matter to be settled by the legislature through its legislationlater on, and it is a matter of legislative policy. Decision of uncon- stitutionality based on "all or nothing" approach is not in accordancewith the arbitrariness test based on the principle of separation ofpowers.

Justices Yun Young-chul(Presiding Justice), Han Dae-hyun(Assigned Justice), Ha Kyung-chull, Kim Young-il, Kwon Seong,Kim

Hyo-jong, Kim Kyoung-il, Song In-jun, and Choo Sun-hoe