Constitutional Complaint against Article 8 (1) of the Support for Discharged Soldiers Act

(11-2 KCCR 770, 98Hun-Ma363, December 23, 1999)

Contents of the Decision

1. Whether the practice of giving veterans extra points of 3 or 5%in each subject test of civil service examinations (“veterans' extra points system”, hereinafter) is constitutionally based;

2. The group discriminated by the veteran's extra point system;

3. The standard of review in equality review of the veterans' extrapoint system;

4. Whether the veterans' extra point system violates women andhandicapped's rights to equality;

5. Whether the veterans' extra point system violates women and the handicapped's rights to hold public offices.

Summary of the Decision

1. Article 39 (1) of the Constitution imposes a duty of national defense on people. Serving in the military pursuant to the Military Service Act is mere discharge of one's sacred duty. Each instanceof performance of that duty cannot be compensated as if it is a special sacrifice. Therefore, Article 39 (2) does not impose on the statea duty to grant compensation or a privilege for discharging one's

duty of military service. It literally bans any disadvantageous treatment on ground of having served in the military. The veterans'extra point system administered pursuant to Article 8 (1) and (3) ofthe Support for Discharged Soldiers Act the Veterans' Assistance Actand Article 9 of its Enforcement Decree constitute an affirmativecompensatory scheme above and beyond the scope of Article 39 (2).It cannot be said to be founded on Article 39 (2) of the Constitution.Veterans are not “surviving families of national merit achievers, orsoldiers and police officers injured or killed in war” under Article 32(6) of the Constitution, which therefore cannot be the constitutionalbasis for the veterans' extra point system like any other provisionof the Constitution.

2. An extremely small minority of women can become veterans.Almost all men are veterans. The veterans' extra point system iseffectively discrimination based on gender. Whether one can be successfully inducted into the full-duty military service does not dependon his will but on the results of the induction examination, his educational backgrounds, and the demand for and supply of military personnel. Therefore, the veterans' extra point system distinguisheshealthy males who can serve in the full-duty positions or full-timenational reserve positions against other men, i.e., those who are exempted or serve in back-up positions.

3. In equality review, whether a strict or relaxed standard shallbe used depends on the scope of the legislative-formative power givento the legislature. However, in those cases where the Constitutionspecially demands equality or differential treatment may cause a greatburden on the related basic rights, the legislative-formative powershall be curtailed and scrutinized under a strict standard. The veterans' extra point system is differential treatment in the area of 'labor'or 'employment', where the Constitution specially demands equalityin its Article 32 (4), and causes a great burden on the Article 25right to hold public offices, and is therefore reviewed under a strict standard of review.

4. A. Veterans may need be supported through various socialpolicies, but not by depriving other groups in the community of equalopportunity. The veterans' extra point system is an unfinanced attempt to support veterans that ends up shifting burdens to the socialweak such as women and the handicapped. Our Constitution abides by various international treaties, and stands for substantive equality and a social state, the ideals further manifested in our legal system. The veterans' extra point system violates the basic order firmly established in our legal system, namely, 'anti-discrimination and protection of women and the handicapped', and therefore loses the requisite appropriateness and reasonableness as the means of policyimplementation.

B. The veterans' extra point system poses an obstacle in many

women's hope for civil service positions, and gives 5% or 3% in eachsubject tested in a hotly contested civil service examination wherethe passage or failure is decided by decimal points and the cut-offis usually above 80%, thereby exerting a decisive influence on theresults of the exam. This is tantamount to excluding the nonbeneficiaries of the veterans' extra point system from civil servicehiring below Grade 6. Veterans can receive the benefits an unlimited number of times. For each veteran, several non-veterans sacrifice their opportunities. In comparison to the weight of the public interest aimed at, the inequality due to the differential treatment isserious. The veterans' extra point system is not proportional.

C. The veterans' extra point system, therefore, discriminatesagainst women and non-veteran males, in comparison to veterans,through unjust methods and overly unequally, violating Article 11 of the Constitution and the petitioners' right of equality.

5. The Article 25 right to hold public offices guarantees all anequal opportunity to hold public offices according to one's ability andinterest. A standard of selection not based on merit and unrelatedto one's ability to perform the duties demanded of the positions violates that right. Veterans' assistance, as a legislative purpose, cannotjustify curtailing of merit-based selection. However, the veterans'extra point system uses an unreasonable standard such as gender or'whether one is healthy enough to serve full-duty positions', therebyexcessively restricting the petitioners' right to hold public offices in contravention of Article 25 of the Constitution.

Parties

Complainants

Cho Kyung-ok and five others

Counsel of record: Lee Suk-yeon and one other

Holding

Article 8 (1) and (3) of the Support for Discharged Soldiers Act(revised by Act No. 5482, 1997. 12. 31) and its Enforcement DecreeArticle 9 (1998. 8. 21, Presidential Decree No. 15870) are unconstitutional.

Reasoning

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

A. Overview of the Case

Complainant Lee Yoo-jin graduated from Ehwa Women's University in February 1998, and complainants Cho Kyung-ok, Park Eun-joo, Kim Jung-won, and Kim Eun-jung, are seniors in the sameschool. They are preparing for the open-competition hiring examination for Grade 7 or 9 national public employees. Complainant KimHyung-soo is a senior at Yonsei University and a handicapped male,who is also preparing for the Grade 7 National Public Employee HiringExamination.

Complainants argue that Article 8 (1) and (3) of the Support for Discharged Soldiers Act and Article 9 of its Enforcement Decree, by granting veterans 5% or 3% of the full points as extra in each subject tested in all hiring examinations for civil service positions ofGrade 6 or lower and for public and private business entities, violated their right to equality, right to hold public offices, and freedomto choose their occupations, and filed this constitutional complaint onOctober 19, 1998.

B. Subject matter of Review

The subject matter of this review is whether the Support forDischarged Soldiers Act (revised by Act No. 5482, 1997.12.31, "theAct", hereafter) Article 8 (1) and (3) and its Enforcement Decree(1998.8.21, Presidential Decree No. 15870, "the Decree", hereinafter)Article 9 violate the basic rights of the complainants. The provisions are as follows:

The Act, Article 8 (extra points in hiring examination)

① When job protection agencies1)under Article 7 (2) conducthiring examinations, veterans receive up to 5% of the full score asextra points in each subject tested in the written examination as determined by presidential decrees. If the agencies do not conductwritten examinations, the points are added in skills tests, documentevaluations, or interviews conducted in lieu of them.

③ The grade levels in which the points are added in hiring examinations conducted by job protection agencies are determined bypresidential decrees.

The Enforcement Decree, Article 9 (the number of extra pointsin hiring examination)

① Pursuant to Article 8 (1) of the Act, veterans sitting for

hiring examinations receive extra points as follows:

1. Veterans who discharged after serving two or more years:5%

2. Veterans who discharged after serving less than two years:3%

② Pursuant to Article 8 (3) of the Act, the following gradelevels are subject to the extra point system:

1. Grade 6 or lower level positions, including technical officials, specified by Article 2 of the State Public Officials Actand Article 2 of the Local Public Officials Act;

2. All levels in which new hiring is conducted by job protection agencies specified by Article 30 (2) of the Act on the Honorable Treatment and Support of pensions, etc. of Distinguished Services to the State.

The Act, Article 7 (job protection)

② Articles 30 to 33 of the Act on the Honorable Treatment and Support of pensions, etc. of Distinguished Services to the State shallbe incorporated here and applied to the scope of job protection agencies, its hiring duties, and hiring orders.

The Act on the Honorable Treatment and Support of pensions,etc. of Distinguished Services to the State, Article 30 (job protection agencies)

The following agencies must conduct job protection:

1. State agencies, local government agencies, and schoolsspecified by Article 2 of Elementary and Secondary EducationAct and Article 2 of the Higher Education Act, except theagencies with less than five technical officials and the private schools with less than five staff people excluding the faculty.

2. Public or private businesses and organizations that hiretwenty or more employees on a daily basis, except manufacturing businesses identified by presidential decree that hire lessthen two hundred employees.

2. Complainants' Arguments and the Related Agencies'

Opinions

A. Complainants' Arguments

(1) The legislative intent behind the veterans' extra point system is

said to be to create a climate encouraging voluntary completion of military duties and to assist veterans in readjusting to thesociety and thereby redress the drawback they suffered by completing the service. However, the climate favorable for voluntary completion of military duties must be achieved by strict enforcement ofthe Military Service Act and by forming healthy awareness aboutmilitary duties. The veterans' extra point system that grants them5% or 3% of the full points as extra in each subject tested in thehiring examinations for civil services and public or private businesses is not an appropriate means. Redress for veterans must bemade financially or by other reasonable means and cannot be doneby creating a new social status and granting a privilege, thereby infringing on other subjects2)of basic rights.

(2) In Grade 7 or 9 Civil Service Hiring Examination, the cutoff averages far above 80 points and the pass or failure is decided upon decimal points. Extra points of 3% or 5% given to veteransexert a decisive influence on the results and may even cause a contradictory result where non-beneficiaries fail even after receiving themaximum score. The consequent, cruel burden tantamount to effective deprivation of the right to sit for the examination violates theprinciple of minimum restriction.

(3) Women and the handicapped, due to tangible or intangibleforms of gender discrimination or social prejudice and hostilities, areextremely difficult to find jobs appropriate for their abilities. Theveterans' extra point system pushes the social weak women and the handicapped out of a job market for not having completed themilitary duties that they cannot perform, and threaten their rights to livelihood.

(4) Article 25 of the Constitution guarantees the right to hold public offices. Its intent is to establish a merit-based standard ofselection upon which all people are given equal opportunities to holdpublic offices according to their abilities and interests. The veterans' extra point system uses the fact of having performed militaryduties, not the ability to perform job duties, as the standard of selection, and therefore infringes on people's right to hold public offices.

(5) Article 15 of the Constitution guarantees freedom of occupation. The permitted scope of restriction is relatively narrower forfreedom to choose occupations than for freedom to conduct occupations. The veterans' extra point system effectively blocks women andthe handicapped from being hired by public and private businesses, infringing their freedom to choose occupations.

(6) Therefore, the veterans' extra point system violates the ruleagainst excessive restriction in infringing the petitioners' right to equality, right to hold public offices, and freedom to choose occupations.

B. Ministry of Patriot's and Veteran's Affairs Opinion

(1) Women are protected by the women hiring goal-program andthereby can be hired even if they fall below the cut-off. Since theyreceive these benefits, they cannot be considered the victims of the veterans' extra point system and therefore do not have a standingto bring this constitutional complaint.

(2) The Act was enacted on December 31, 1997 and brought intoeffect on July 1, 1998. The time limit for filing a constitutional complaint begins to accrue from the time of the enactment. This complaint was filed on October 19, 1998, well past the time limit for filing.

(3) The veterans' extra point system restores the rights andinterests that they were deprived of in being forced into the militaryduties and keeps the full-duty soldiers' morale up, thereby maintaining a stable national defense capability. Soldiers must forego education, career, job opportunities, and even an opportunity to preparethemselves for jobs during their service. Restoring their personal lossand assisting them in prompt readjustment into the general societyis consistent with fairness in relation to those who did not performmilitary duties.

(4) Mechanical equal treatment of those who served in the military and those who did not and subjecting them to competition constitutes a fundamental restriction on the first group's right to holdpublic offices and choose their occupations, and violates the principle of substantive equality.

3. Review

A. Legal Prerequisites

(1) The Minister of Patriot's and Veteran's Affairs argues thatwomen benefit from the women hiring goals program and therefore cannot claim to be the victims of the veterans' extra point systemand do not have a standing in this constitutional complaint. However,the women hiring goal-program has a different purpose and intent.As long as their status vis-à-vis basic rights are affected by theveterans' extra point system, their self-relatedness cannot be denied.

The Minister of Patriot's and Veteran's Affairs also argues thatthe complainant Lee Yoo-jin failed in the 1997 Grade 7 National Civil Service Hiring Examination with a score regardlessly low of the veterans' extra point system, and therefore does not have a standing.However, unless it cannot be shown that the complainant is notpreparing for the same

examination, her standing cannot be denied.

(2) At the time of the filing, the complainants were preparing fornational civil service hiring examinations, and therefore their basicrights were not presently being infringed by the instant provisions.However, it is clearly predictable that the veterans' extra point system will be applied to their future exams. Therefore, their present injuries are recognized (4 KCCR 659, 669, 92Hun-Ma68 etc., Oct. 1,1992). When the present injury requirement is satisfied by ascertainable future injuries, the filing time limit could not have expired.The filing time limit begins to accrue and later becomes an issueonly after the infringement has taken place. In this case, there hasbeen no infringement, yet we recognize its presentness in advance.Therefore, the Minister's argument concerning the filing time limit iswithout basis.

(3) Since there is no defect in relation to the legal prerequisites, we move on the review on merits.

B. Review on Merits

(1) Veterans' Extra Point System

The veterans' extra point system is the practice of granting veterans extra 5% or 3% of the full score in each subject tested (or inskills tests, document evaluations, or interviews conducted in lieu of written exams) in hiring examinations conducted by certain job protection agencies.

(A) Veterans

Veterans are those who completed their military duties and weredischarged (retired, exempted from further service, or released fromfull-time reserve service) pursuant to the Military Service Act or theMilitary Personnel Management Act. (Article 2 of the Act)

All male citizens of the Republic of Korea have a duty of national defense (Article 39 (1) of the Constitution, Article 3 (1) of theMilitary Service Act) and accordingly must complete military dutiespursuant to the Military Service Act or the Military Personnel Management Act (Articles 3 (1) and 4 of the said Act). Military dutiesare classified into full-duty, reserve, backup, first-class national,and second-class national (Article 5 (1) of the said Act). The word'discharge' applies only to those who completed full-duty service(including those converted into combat police personnel or correctionfacility security guards) or full-time reserve services. Therefore,those who completed backup services or second national services arenot veterans.

Women can volunteer for full-duty services (Article 3 (1) (ⅱ)of the Act) and therefore can be veterans.

Also, those full-duty servicemen expected to be discharged withinsix

months are also considered veterans (Article 8 (2) of the Act).

(B) Job Protection Agencies

Job protection agencies are state agencies, local government agencies, and schools specified by Article 2 of Elementary and Secondary Education Act and Article 2 of the Higher Education Act (except the agencies with less than five technical officials and the private schoolswith less than five staff people excluding the faculty) and public orprivate businesses and organizations that hire twenty or more employees on a daily basis (except manufacturing businesses identifiedby presidential decree that hire less than two hundred employees)(Article 7 of the Act, Article 30 of the Act on the Honorable Treatment and Support of pensions, etc. of Distinguished Services to theState).

(C) Extra Points

Veterans who were discharged after serving two or more yearsreceive 5% and those who were discharged after serving less thantwo years receive 3% (Article 9 (1) of the Enforcement Decree of thesaid Act).

(D) Positions and Levels Subject to Extra Points System

All Grade 6 or lower level positions, including technical officials,specified by Article 2 of the State Public Officials Act and Article 2of the Local Public Officials Act, and all positions for which newhiring is conducted by job protection agencies specified by Article30 (2) of the Act on the Honorable Treatment and Support of pensions, etc. of Distinguished Services to the State are subject to extrapoints system.

(2) Constitutionality of the Veterans' Extra Point System

(A) Basis of the Veterans' Extra Point System

1) We shall review whether the veterans' extra point system isconstitutionally based or merely based on a legislative policy is animportant element in evaluating its constitutionality.

2) Article 39 (2) of the Constitution states "no one shall receiveadverse treatment for the reason of having discharged his military duty", and we shall review whether this provision can become theconstitutional basis for the extra point system. Article 39 (1) of the Constitution imposes the duty of national defense on people in order to protect national independence and land from direct or indirect aggression from external hostile forces. Serving in the military pursuant to the Military Service Act is merely discharge of a sacredduty, and cannot be considered a special sacrifice that the state imposes on individuals for public interest. People's discharge of their constitutionally imposed duties is indispensable to national integrityand livelihood. Each instance of such discharge cannot be considered a special sacrifice that requires compensation.

Therefore, Article 39 (2) of the Constitution does not impose onthe state a duty to grant compensation or a privilege for discharging one's duty of military service. It literally bans any disadvantageous treatment for reason of having served in the military. 'Disadvantageous treatment' in the provision does not cover all factual oreconomic drawbacks but only means legal disadvantages. Otherwise,the provision would mean that the state must protect from all disadvantages that are causally related to the performance of militaryduties the scope of which is broad beyond counting or prediction, and would contradict with Article 39 (1) that imposes on people theduty of national defense.

Therefore, the veterans' extra point system constitutes an affirmative compensatory scheme above and beyond the scope of Article39 (2) and cannot be said to be founded on Article 39 (2).

3) Article 32 (6) of the Constitution provides that "surviving families of national merit achievers, or soldiers and police officers injured or killed in war are granted priorities in job opportunities pursuant tostatute." However, veterans are not "surviving families of nationalmerit achievers, or soldiers and police officers injured or killed inwar." They are not national merit achievers even under the Act onthe Honorable Treatment and Support of pensions, etc. of Distinguished Services to the State (Article 4). The state merely incorporated the extra points system for national merit achievers and extended them to veterans (Article 70) for legislative convenience. Thegroups are treated under separate schemes since passage of the Act.Therefore, Article 32 (6) of the Constitution cannot be the constitutional basis for the veterans' extra point system.

4) The veterans' extra point system is therefore not constitutionally based but merely based on a legislative policy of assistingveterans in readjusting to the society.

(B) Violation of the Right to Equality

1) Discriminated Groups

The veterans' extra point system has the form of distinguishing veterans and non-veterans. However, the substance of the veterans'extra point system cannot be clearly grasped with the formal concepts such as veterans and non-veterans. We must examine concretely what groups of people fall under veterans or non-veterans under the current legal system. Veterans include ① males discharged(or retired or exempted from further service) after completion offull-duty service ② males discharged from full-time reserve service③ females who volunteered for and completed full-duty service.Non-veterans are ① the super majority of women who did not volunteer for military service ② males classified at induction examinations as unable to perform military duties due to illness or handicap (Articles 12 (1) (ⅲ), 14 (1) (ⅲ) of the Military

Service Act) ③ males who completed military service in backup or second-class national positions.

Most of all, the veterans' extra point system factually discriminates women in comparison to men. Among veterans, women thatfall under ③ are an extremely small minority of women. Most womenare not veterans. Most men fall under ① or ② and are thereforeveterans. According to the records attached to this case [MilitaryService Classification Notice], for five years between 1994 and 1998, full-duty classifications range between 81.6% and 87%, meaning thatmore than 80% of men can become veterans (backups, 4.6% to 11.6%; second-class nationals, 6.4% to 9.85; exemptions, 0.4 to 0.6%). Sincethe veterans' extra point system distinguishes most men from mostwomen, the current status of law must be considered as discrimination based on gender.

Next, the veterans' extra point system discriminates males unableto perform military duties due to illness or handicap in comparisonto healthy males able to perform as full-duty or full-time reserveservicemen. Whether one can serve full-duty depends not on the willof the service-men but on the results of the induction examination(Articles 11, 12, and 14 of the Military Service Act). Ill or handicapped males, even if they want to serve full-duty, cannot do so andtherefore cannot become veterans and benefit from the veterans' extrapoint system.

Finally, the veterans' extra point system discriminates those who served as backups. Backup classification is done according to educational backgrounds and physical fitness levels and in consideration ofthe supply and demand of military personnel (Articles 5 (1) (ⅲ) and 14 of the Military Service Act). It is done regardless of the will ofthose classified. Backups, even if they complete certain duties inlieu of military duties (in public interest service, public interest legalservice, public health, specialized research, and industrial technicalservice), they cannot benefit from the veterans' extra point systemmerely because the form of service is not a full-duty service.

2) Standard of review

A) In equality review, whether a strict or relaxed standard shallbe used depends on the scope of the legislative-formative power givento the legislature. However, those cases where the Constitution specially demands equality shall be scrutinized under a strict standard.If the Constitution itself designates certain standards not to be used as reason for discrimination or certain domains in which discrimination shall not take place, it is justified to strictly scrutinize the discrimination based on that standard or in that domain. Also, if differential treatment causes a great burden on the related basic rights,the legislative-formative power shall be curtailed and strictly scrutinized.

B) The veterans' extra point system requires a strict standardof

review for both of the two reasons. Article 32 (4) of the Constitution states, "women's labor is specially protected, and they are notunjustly discriminated in hiring, wages, and conditions of employment," specially requiring gender equality in the domain of 'labor'or 'employment'. The veterans' extra point system differentiates menand women in that domain. Also, it causes a great burden on theArticle 25 of the Constitution the right to hold public offices (andon the Article 15 of the Constitution freedom to choose one's occupation in case of the veterans' extra point system conducted by private businesses).

The veterans' extra point system therefore is reviewed understrict scrutiny, which goes above the rule against arbitrariness, i.e.,testing whether there is rational basis, and means a test under theprinciple of proportionality, i.e., whether there is a strict proportionality between the means and the end of the differential treatment.

3) Violation of Equality by the Veterans' Extra Point System

A) Legislative Purpose of the Veterans' Extra Point System

The veterans' extra point system is mainly aimed at redressingthe opportunity for jobs or job preparation that veterans lose while serving in the military and thereby helping them promptly readjustback to the society. They devoted their golden times in their earlyor mid 20s to performing military service in an isolated and controlled environment with no opportunity for self-development, andthereby made a contribution to the country and the society. Theyare at a disadvantage in preparing for civil service hiring examinations, relative to non-veterans. It is a necessary and permissiblepurpose to assist veterans' readjustment.

B) Appropriateness of Discrimination

a) Assistance for veterans' readjustment must be done throughan reasonable and proper means

Firstly, veterans can be redressed for any legal disadvantage theysuffer in comparison to non-veterans.

It is permissible to take into account the service periods in calculating salaries or retirement benefits, as the current legal systemalready does. Article 8 and its Table 15 of the Civil Service Compensation Rules takes all mandatory military service periods as aperiod of employment and even adds one year. Article 23 (3) of the Public Officials Pension Act also accepts the period of all full-dutyservices or non-commissioned officer's involuntary services as a period of civil service employment. the State Public Officials Act alsoconsiders the duration of military service under a leave of absenceduring which the status as a civil servant is protected (Articles 71to 73).

Next, it is permissible to formulate a social or financial assistance

program such as job referral, occupational training, reeducation, educational loan or loan forgiveness, or medical benefits. Articles4, 10, 11, 12, and 13 of the Act does provide such program for longterm duty veterans. It will be truly reasonable to extend the benefits to veterans as much as possible.

b) However, the veterans' extra point system is not a reasonable means of supporting veterans. The veterans' extra point system grants veterans a special privilege by adding 5% or 3% in each subject tested in civil service hiring examinations by eroding or depriving non-veterans of their job opportunities. Non-veterans arenone other than the super majority of women and a substantial number of men (handicapped or ill males who cannot perform militaryduties, males who served as backups) who could not be veterans.Women and the handicapped are the weak of our society. The Constitution professes in several instances the state's duty to affirmatively protect them in accordance to the principle of substantiveequality and social state, e.g., Article 11 that bans gender discrimination, Article 34 (1) that guarantees humane livelihood, the aforementioned Article 32 (4), Article 34 (3) that provides, "the state must endeavor to promote women's welfare and rights", Article 34 (5) that provides, "the handicapped and others who cannot make living due to illness and age are entitled to the state's protection pursuant to statute", and Article 36 (2) that provides, "the state must endeavor toprotect maternity". Despite this, women and the handicapped suffervarious institutional, or tangible or intangible factual forms of discrimination, and hardship due to social and cultural prejudice in allareas of living. It is especially difficult for them to obtain jobs appropriate for their abilities. In order to negate this reality and realizethe constitutional ideals of equality and welfare, a comprehensive legal system is established in the area of women and the handicapped. TheFramework Act on Women's Development, the Act on Prohibition andRemedy for Sexual Discrimination, and the Sexual Equality Employment Act emphasize expansion of women's social participation andspecially institute discrimination bans and affirmative actions forwomen in public offices and employment. Also, the Welfare of Disabled Persons Act and the Promotion, etc. of Employment of DisabledPersons Act specify various discrimination bans and protective measures for the handicapped. If a means to achieve a certain legislative purpose contradicts an entire legal system that institutes a certain constitutional ideal, it cannot be considered an appropriate policymeans. The Convention on the Elimination of All Forms of Discrimination against Women and other international treaties, the aboveconstitutional provisions, and the legal system establish the ban ondiscrimination against and the protection for women and the handicapped as a basic order. However, the veterans' extra point system,in attempting to support veterans with no financial backup, causessacrifice on the social weak, conflicting with the basic order of ourlegal

system and causing a systemic disharmony.

In sum, veterans may need be supported through various socialpolices but not by depriving other groups in the community of equal opportunity. The veterans' extra point system deprives women andthe handicapped of an opportunity to participate in the society, usinggender and other criteria that do not have any rational relationship to the ability to perform official duties. It has lost appropriatenessand reasonableness as a means.

C) Proportionality of Discrimination

The veterans' extra point system also has lost proportionalitybecause the discriminatory effect is serious in comparison to theweight of the public interest aimed at.

a) The veterans' extra point system restricts quantitatively avery large number of women's right to hold public offices. According to the attached records, [Grade 7 and 9 Hiring ExaminationWomen Applicants and Their Passing Rate], about ten thousand women annually sat for the Grade 7 exam and about forty to fiftythousand women for the Grade 9 exam for three years between 1996and 1998. The veterans' extra point system is an obstacle to somany women desiring to participate in public offices.

b) The effect of the veterans' extra point system on the hiringresult is too great. 5% or 3% of the full score in each subjecttested is a decisive factor in determining whether one passes or not.In Grade 7 or 9 exams, the competition is intense, the cut-off rangesfar above the average of 80 points, and a few tenths of a point decides passage or failure. (According to the attached record, [Menand Women Applicants and Passers, and their Average Scores, Ages,and Passing Scores], the lowest passing score for men were 86.42,for women 85.28 in Grade 7 General Administrative Exam, and 95.50generally in Grade 9 General Administrative Exam in 1998.) Thereis even a possibility that one who does not benefit from the veterans' extra point system and yet achieves the perfect score may failthe exam.

The effect of the veterans' extra point system is apparent statistically. The attached record, [Subject Grades of Passers], uponanalysis, shows that, in Grade 7 General Administrative Exam, 72out of 99 hires, 72.7%, are veterans who received the extra points.Those who did not receive the extra points are only six, 6.4%, threeof who were below the cut-off of 86.42 but benefited from the women's hiring goals program. In other words, 3 hires or 3.3% of the hires were all that overcame the wall of the veterans' extra pointsystem. In 1998 Grade 7 Prosecutors' Office Clerical Exam, only oneout of fifteen hires did not receive the extra points.

These facts show that the veterans' extra point system bringsabout

the result equivalent to excluding women and other nonbeneficiaries of the system from the Grade 6 or lower level civilservice hiring.

c) Furthermore, the veterans' extra point system grants the benefits to veterans in an unlimited number of times. Regardless of thenumber of trials or whether a veteran has already obtained a job by benefiting from the extra points, he or she can receive them repeatedly. For one veteran, many non-veterans' opportunities are beingsacrificed.

d) The veterans' extra point system does not merely discriminate at a public workplace but interferes with entry into it and therefore deprives a public employment opportunity from its entry stage,imposing a great burden on the right to hold public offices.

e) What is more serious, a civil service hiring examination isnearly the only market in which women and the handicapped can fairly compete. Social and cultural prejudice makes it very difficult for women and the handicapped to find a job appropriate for their abilities in the private sector. Contrarily, civil service hiring is supposedto be conducted openly on the basis of merit and in observance ofthe principle of equality (Article 26 of the State Public Officials Actrequires that hiring be based on proofs of merit, and its Article 35 opens up hiring equally to all people with the same qualifications).Discriminating them even in civil service hiring imparts a serious blowto them. Blocking women's entry into public offices will also causea very disharmonious result from the perspective of utilizing the nation's manpower.3)When one half of the country cannot display their abilities, the potential of the whole country or society cannot be fullytapped. According to the records of the National Statistical Office,only 265,162 or 28.7% of all public employees were women in Dec.1997. Even 53.8% of them are educational employees, and 18.6%technical employees. According to the records of the Korean Women's Development Institute, women are 0.3% in Grade 1 to 3, 1.6% in Grade4, 3.2% in Grade 5, and 22.2% in Grade 6 or lower. Our civil service community is dominated by men. This is not desirable. Especially, in face of the information era, women's abilities are being considered a valuable resource and the necessity to develop them isgrowing. The veterans' extra point system is blocking us from futureprogress.

f) As shown above, the public interest accomplished by the veterans' extra point system is merely a policy objective of the legislature. However, what is infringed by it are constitutional values suchas gender employment equality and the discrimination ban on thehandicapped, which the Constitution specially protects. Therefore, incomparing the legal interests generally or abstractly, or appreciating the seriousness of the harm, the veterans' extra point system is seriously lacking a balance

between the legal interests.

D)Relationship to Women's Hiring Goal-program in Civil ServiceRecruitment

Women's hiring goal-program has been administered pursuantto Article 11-3 of the Civil Service Hiring Examination Decree andArticle 51-2 of the Local Civil Service Hiring Decree since 1996.Administrative and Diplomacy High-level Examination and Grade 7 and9 National Civil Service Examination have annual hiring goals forwomen and, when the goals are not met, hire additional women within three points below the cut-off in Grade 5 hiring and five pointsbelow in Grade 7 or 9 hiring (In Grade 7, the goals are 10% in 1996,13% in 1997, 15% in 1998, 20% in 1999, 20% in 2000, 23% in 2001,and 25% in 2002. In Grade 9, 20% in 1999, 20% in 2000, 25% in 2001,and 30% in 2002).

Hiring goals are part of the so-called temporary affirmative action. Temporary affirmative action is a measure of providing director indirect benefits in hiring or school admission to the members ofa group that has been discriminated by the society, and thereby redressing the injuries they suffered. Naturally, under temporary affirmative action, one receives benefit not on the basis of a qualification or an achievement but on the basis of belonging to a group.It pursues equal result, not just equal opportunity. It is not a permanent measure but a temporary one that expires when its purpose isachieved.

We examine whether the hiring goal-system removes the unconstitutional element of the veterans' extra point system.

a) The hiring goal-system is a system different from the veterans' extra point system both in its intent and functions.

The hiring goal-system is aimed at raising the status of womento that of men who are otherwise in an advantageous position. Unlikethis, the veterans' extra point system operates regardless of the maleto female ratio and may end up solidifying directly and indirectlymen's vested interest in their advanced position.

b) The effect of the hiring goals system is limited.

Firstly, the equality-oriented goal itself is limited. Until 2002, theyear that the system expires, the goals to be achieved are 20% inAdministrative and Diplomacy High-Level Examination, 25% in Grade7, and 30% in Grade 9. (Positions related to correction, juvenileprotection, protective supervision are excluded.) Secondly, the hiringgoal-system is a temporary measure. In 2002 and when the goals areaccomplished, it expires. Thirdly, according to the attached record,[Women Applicants' Passing Rate According to Women Hiring GoalSystem], only two to five were hired through that system in Administrative Exam for three years between 1996 and 1998, and nine tosixteen annually in

Grade 7 National Civil Service Examination. Theveterans' extra point system substantially disadvantages annually fortyto fifty thousand women Grade 9 applicants and ten thousand women Grade 7 applicants. The hiring goal-system cannot remedy the situation.

Considering these facts, the hiring goal-system does not eliminate or reduce unconstitutionality of the veterans' extra point system.

E) Sub-conclusion

In conclusion, the veterans' extra point system discriminateswomenand non-veteran males in comparison to males in contravention of the principle of proportionality, violating Article 11 of theConstitution and the complainants' right to equality.

(C) Violation of the Right to Hold Public Offices

We examine whether the veterans' extra point system violatesthe complainants' right to hold public offices.

1) Right to hold public offices and merit-based selection

Article 25 of the Constitution provides, "all people have the rightto hold public offices pursuant to statute." The right to hold publicoffices includes a right to be a candidate and ultimately be electedin various elections and the right to be appointed for public offices(8-1 KCCR 550, 557, 96Hun-Ma200, June 26, 1996). That right canbe restricted to the extent necessary for national security, public order,and public welfare, but cannot be unequally or excessively restricted,or restricted on its essential content.

Unlike elected positions, professional civil servants are demandedpolitical neutrality and the ability to perform work duties efficiently. Regulation of the right to be professional civil servants can only bebased on merits or achievements and according to the applicants'ability, professionalism, interests, and personality. The Constitutiondoes not explicitly say so but, in light of its Article 7 professionalcivil servant system that includes the element of meritism, its Article 25 can be said to guarantee all people equal opportunity to hold public offices according to their abilities and interests. Article 26 of theState Public Officials Act provides, “hiring must be done on the basisof test results, work performance, and other demonstrations of abilities.” Article 35 of the same Act provides, “a hiring examinationsubject to open competition must be equally open to all people withthe same qualifications.” These statutory provisions show that thejurisprudence behind Article 25 of the Constitution centers on meritism and equal opportunity. Therefore, a standard of selection based,not on merits but, on gender, religion, social status, regional origins, and other factors unrelated to the abilities demanded of the positions violates people's right to hold public offices.

The basic principle of the Constitution and its specific provisionmay

allow exceptions to the meritism. The social state principle,Articles 32 (4) to (6) concerning protection of women and minors andpriority hiring of the survivors of national merit achievers and policeofficers and soldiers killed in war, and Article 34 (2) to (5) specifying the society's duty to protect women, the elderly, and the handicapped. When there is such a constitutional mandate, meritism canbe compromised to a reasonable extent.

2) Violation of the right to hold public offices by the veterans'extra point system

A) As shown above, the legislative purpose of assisting veteransis not a just basis for compromising merit-based selection. Therefore, the extra point system infringes upon one's right to hold publicoffices by unreasonable standard with no relation to meritism.

a) The veterans' extra point system discriminates the supermajority of women for the sake of the majority of men. We alreadyestablished that its distinction is formally on veteran status but issubstantively on gender. However, women and men do not have physiological differences in relation to the abilities to perform publicservices. Therefore, the practice of depriving people of public service opportunities, not on the basis of interests, professionalism, and personality, but on gender is clearly unreasonable and is not appropriate.

b) The veterans' extra point system discriminates between veterans on one hand and those who are exempt from military servicesor have served in backup positions on the other. The substantivedistinction is made between whether one is healthy enough to sustain the full-duty service, a standard unrelated to his ability to perform public services. Public service does require health. However,the level of fitness required there is different from that required forfull-duty military service.

B) The veterans' extra point system is unjust as shown in our equality review and excessive, violating the principle of proportionality.

C) In conclusion, the veterans' extra point system excessivelyrestricts women and the handicapped's right to hold public offices bya standard unrelated to merit, violating Article 25 of the Constitution and the complainants' right to hold public offices.

4. Conclusion

Articles 8 (1) and (3) of the Veterans' Assistance Act and Article 9 of its Enforcement Decree violate the complainants' rights toequality and to hold public offices, and therefore unconstitutional.So held by an unanimous decision of all Justices.

Justices Kim Yong-joon(Presiding Justice), Kim Moon-hee,Lee Jae-hwa, Chung Kyung-sik(Assigned Justice), Koh Joong-suk,Shin Chang-on, Lee Young-mo, Han Dae-hyun, Ha Kyung-chull