Agent Orange Victims Case

(13-1 KCCR 1393, 99Hun-Ma516, June 28, 2001)

In this case, the Constitutional Court found nonconforming to theConstitution the provision of the Act to Support Veterans Sufferingfrom Exposure to Defoliants which denies the eligibility of benefitsfor bereaved families of veterans who died without applying for ben-efits under the Act, on the grounds that the provision violates theprinciple of equality.

A. Background of the Case

During the Vietnam War, defoliants such as Agent Orange were widely used by the armed forces in military operation areas. Longafter the War, scientists have epidemiologically proved that thesedefoliants could cause serious illness such as lung cancer. OnMarch 10, 1993, the National Assembly legislated the Act to SupportVeterans Suffering from Exposure to Defoliants (hereinafter called the "Act") to help Korean Vietnam War veterans suffering as a result ofexposure to defoliants or bereaved families of veterans who died ofaftereffects from exposure to defoliants.

However, the Act limited the families qualifying as beneficiariesunder the Act to ① family members of a veteran who is confirmedto have died of illness resulting from exposure to defoliants beforethe enforcement of the Act, and ② family members of a veteran who,having applied to the Minister of the Office of Patriots and VeteransAffairs for benefits under the Act, died before being classified as aqualified beneficiary under the Act, but was posthumously recognizedas a defoliant victim. Therefore, family members of a veteran who died before applying for benefits after enforcement of the Act, suchas the complainants, do not qualify for benefits under the Act evenif it is later proven that the cause of death of the deceased veteranwas illness directly linked to exposure to defoliants. Complainantsfiled a constitutional complaint alleging that the instant statutory pro-vision violated the right of equality and the right to property.

B. Summary of the Decision

(1) Majority Opinion

The Constitutional Court issued a decision of nonconformity, ona majority vote of six Justices, as follows:

(A) Violation of Property Right

Article 32(6) of the Constitution states that "the opportunity towork shall be accorded preferentially, under the conditions as pre-scribed by Statute, to those who have given distinguished service tothe State, wounded veterans and policemen, and members of bereavedfamilies of military servicemen and policemen killed in action." To provide "the opportunity to work" refers to only one of many pos-sible means to reward people who rendered distinguished service tothe State. The statutory provision as a whole proclaims that theState has a comprehensive duty to compensate for the sacrifice anddistinguished service of these individuals. Details of compensationare problems of the legislative policy, and the legislature should pre-pare necessary measures with due consideration to the economicstatus of the State, financial means available, and public sentiment.Individuals with distinguished service recognition can make claimsfor compensation only after legislators enact laws with detailed pro-visions awarding compensation to these individuals, and such is thecase here.

The right to receive compensation has the same attributes asthe right to property. However, because it is recognized as a rightupon legislation in a particular statute, the right to receive compen-sation is not a property right protected by the Constitution until aparticular individual meets qualification requirement stipulated by thelaw. Therefore, the complainants who have not yet met the legalrequirements prescribed by the Act have not yet acquired the rightto receive compensation, and the provision on review does not vio- late the complainants' property rights.

(B) Violation of the Principle of Equality

Whether death of a veteran suffering from illness related to ex-posure to defoliants occurs before or after the enforcement date of theAct depends on very fortuitous factors such as the type of illness,time of contracting the disease and its seriousness, and the rate ofprogress of the disease. In either case, there is no difference in the fact that a veteran has suffered from aftereffects of exposure to de-foliants. Therefore, it is unreasonable to discriminate against be-reaved family members of veterans based on whether a veteran died

before or after the Act entered into force.

Among the veterans who died after filing for benefits but beforebeing recognized as a defoliant victim, there may be cases wherethe State was accountable for the delay in recognizing him as adefoliant victim, whereas in the case of veterans who died without applying at all, the State cannot be held accountable for a delay in the determining process. This may be the reason for distinguishing the two cases. However, the State does not need to take steps to compensate individuals for administrative delays if a veteran nearinghis demise because of illness linked to exposure to defoliants filed for benefits but died immediately after applying for benefits. But,in cases of veterans who died before applying for benefits, it wouldbe unreasonable to uniformly penalize veterans who neglected toinstitute proceedings because there would be many different reasonsas to why veterans who died before applying for benefits under theAct did not apply: some veterans may not have known that theysuffered from aftereffects of exposure to defoliants because of mis-diagnosis; some veterans may have died before applying for benefitsbecause of rapid development of disease; and some may not have known that the State enacted new laws to provide benefits to de-foliant victims or that defoliant victims need to follow special pro-cedural requirement to qualify for benefits.

However, what is more important is that compensation for veter- ans suffering from defoliant exposure and for family members of suchveterans is not merely a gratuitous favor of the State. It is justcompensation by the State for the honorable sacrifice that these vet-erans made for the State during the Vietnam War. Therefore, the State should continuously afford compensation for all veterans rec-ognized as defoliant victims and their families to the maximum pos- sible extent, which would be in accordance with the spirit of Article 32(6) of the Constitution. The central issue for compensation, then, is whether the cause of the veteran's death is illness resulting fromexposure to defoliants during his tour of duty in Vietnam, notwhether the deceased applied for benefits before his death.

It would be convenient for administrative purpose if the deceased applied for benefits before his death: in that case, a careful and moreaccurate diagnosis could have been made to determine whether thedisease resulted from exposure to defoliants. It would be far moredifficult and less accurate to posthumously determine whether thecause of death of a veteran was illness related to exposure to de-foliants. However, the Act stipulates that in cases where a veterandied before enforcement of the Act or after applying for benefits underthe Act, the cause of death would be determined by the certificateof death or medical records. This means that difficulty in accurately

determining the cause of death does not only exist in cases where aveteran died before applying for benefits after the Act entered intoforce.

In conclusion, the statutory provision stipulating that whether family members of a defoliant victim qualify to apply for benefitsunder the Act depends on the fact whether or not the deceased appliedfor benefits before his death discriminates against family members ofa defoliant victim who died before applying for benefits arbitrarilyand without a reasonable basis, and hence, is unconstitutional.

(2) Dissenting Opinion

Details of rewarding those who rendered distinguished serviceto the State are problems for the legislative policy. The legislatureshould prepare necessary measures with due consideration to theeconomic status of the State, financial means available, and publicsentiment, and there exists a large degree of discretion.

The reasons that only family members of a defoliant victim whoapplied for benefits before his death qualify for compensation under the Act are as follows: First, the State can refuse protection of thebereaved family of an individual if the deceased, during his lifetime,was delinquent in exercising his legally protected rights; Second, be-cause it takes a while to confirm that a veteran indeed suffered froman illness related to defoliant exposure, due to the lack of veteranshospitals, doctors and laboratory equipment, special treatment is re-quired for a veteran who died after applying for benefits but before being recognized as a defoliant victim; Third, if a veteran is not re- quired to apply for benefits, it is almost impossible to find out how many defoliant victims there are, and this leads to difficulty in as- sessing actual budget required to make compensation and the stand-ard of the compensation itself; Fourth, if family members of a de- ceased defoliant victim are allowed to apply for benefits regardlessof whether the veteran applied for benefits before his death, a deci- sion of qualification for benefits will have to be based on records ofmedical facilities other than those designated and entrusted by theprovisions in the Act. Considering the complications inherent inaftereffects of exposure to defoliants, this would bring questions ofaccuracy and reliability of the system recognizing defoliant victims;Fifth, considering the fact that family members of a veteran who wasrecognized as a defoliant victim but failed to be classified into classI-VII following a physical examination do not qualify for benefitsunder the Act, a question of equity would arise if the complainantsare allowed to apply for benefits under the Act.

In conclusion, the statutory provision, stipulating that whether

family members of a defoliant victim qualify to apply for benefitsunder the Act depends on the fact whether or not the deceased ap-plied for benefits before his death has a reasonable basis, is notagainst equity or justice, is not arbitrary, and hence, is constitutional.