Constitutional Complaint against Article34(1) of the Act on the HonorableTreatmentand Support of Pensions, etc. of DistinguishedServices to the StateCase

(13-1 KCCR 386, 2000Hun-Ma25, February 22, 2001)

In this case, the Constitutional Court upheld the provisions grant-ing extra points to individuals who rendered distinguished service forthe State and their families in all employment examinations for thecivil service.

A. Background of the Case

Article 34(1) of the Act on the Honorable Treatment and Supportof Pensions, etc. of Distinguished Services to the State (hereinaftercalled the "Act") grants an extra 10% of the full score in each subjecttested in all employment examinations for the civil service to indi-viduals who rendered distinguished service for the State and theirfamilies (hereinafter called "individuals with distinguished service rec-ognition"). The complainant who was preparing for the national pub-lic employee employment examination filed a constitutional complaint against the statutory provision alleging that it infringes on the right of equality, the freedom to choose one's occupation, and the right to hold public office of the complainant who is not classified as an in- dividual with distinguished service recognition.

In 1999, the Constitutional Court ruled that the statutory provi- sions in the Support for Discharged Soldiers Act, granting veteransan extra 5% of the full points as extra in each subject tested in allhiring examinations for civil service, were unconstitutional becausethey discriminated against women and men who were not classified as veterans, in violation of the principle of proportionality.

B. Summary of the Decision

The Constitutional Court unanimously upheld Article 34(1) of theAct, and ruled as follows:

(1) Review on violation of the equality principle can be conducted using either of the two standards, namely, the principle against arbi- trariness or the principle of proportionality. In most equality reviews,the principle against arbitrariness is employed, but in those caseswhere the Constitution specially demands equality or where differ-ential treatment causes a significant burden on the related basicrights of other individuals, the constitutional review shall be con-ducted using a strict standard of the principle of proportionality.

The extra point system for individuals with distinguished service recognition puts a great burden on the basic rights, namely, the rightto hold public office and the freedom to choose one's occupation.Therefore, in the instant case the Court should employ the principleof proportionality as the standard of review. However, because Article32(6) of the Constitution orders preferential treatment of individualswho have given distinguished service to the State in the field of op-portunity to work, the Court should employ a more relaxed standardof review than the usual strict standard of the principle of propor-

tionality.

The legislative purpose of the extra point system for individualswith distinguished service recognition is designed to help them achievea stabilization of livelihood and to provide them with another chance to serve the State and society by providing preference in job oppor-tunities as stipulated in Article 32(6). The extra point system isalso appropriate as the policy to achieve such legislative objective.

And also, since Article 32(6) of the Constitution demands priorityin providing job opportunities for individuals with distinguished ser- vice recognition, preferential treatment of these individuals is neces- sary.

In most civil servant examinations, individuals protected by thegovernmental employment protection program make up about 10% oftotal successful candidates. In the light of this fact, we can con-clude that there is a balance between the legislative purpose and theextent of discrimination. In some cases, only individuals under the state employment protection program may qualify for the openingsin a particular civil service sector due to the limit in the number of final candidates or the difficulty of the examination. However, suchexceptional cases do not make the extra point system unconstitu-tional altogether. The veterans' extra point system was declared un-constitutional by the Court because it discriminated against womenin violation of the constitutional provisions. However, the extrapoint system for individuals with distinguished service recognition,based on Article 32(6) of the Constitution stipulating preferentialtreatment for individuals who have given distinguished service tothe State, meets the balance of interest test despite some problemsit poses.

Therefore, the instant extra point system does not give prefer-ential treatment to individuals with distinguished service recognitionin violation of the principle of proportionality, and it does not infringeon the complainant's right to equality.

(2) The right to hold public office protected by Article 25 of theConstitution means that all citizens will have equal opportunities toserve as public officials according to their abilities and aptitudes.Thus, discrimination by factors unrelated to the required job quali-fications such as gender, religion, social position, or region is prohi- bited by the Constitution, in principle.

However, exceptions to the principle of meritism in selectingpublic official candidates can be made if they are based on a consti-tutional principle, or a particular statute of the Constitution, and ifthey are within reasonable limits.

Restriction on the right to hold public office imposed by the

instant extra point system is an exception to the merit system inselecting public official candidates based on Article 32(6) of the Con- stitution, and as we have seen, does not violate the principle of pro-portionality or the rule against excessive restriction in the reviewon violation of the principle of equality. Therefore, the extra pointsystem does not violate the complainant's right to hold public office.