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헌재 2014. 3. 27. 선고 2012헌바192 공보 [북한이탈주민의 보호 및 정착지원에 관한 법률 제9조 제1항 제1호 위헌소원]
[공보(제210호)]
Main Issues

A. Whether Article 9(1)1 of the Act on the Protection and Settlement Support of North Korean Refugees (amended by Act No. 10188, Mar. 26, 2010) that provides that North Korean defectors who are narcotics traders shall not be designated as persons eligible for protection violates the principle of clarity (negative)

B. Whether the legal provision of this case infringes on the right of North Korean defectors to live a decent life (negative)

Summary of Decision

A. The language and purpose of legislation of the legal provision of this case

In light of the foregoing, it can be seen that the transaction of narcotics under the legal provisions of this case includes the transaction of psychotropic drugs, and is not limited to the commercial purpose or habitual transaction. Thus, the legal provisions of this case do not violate the principle of clarity.

(b)North Korean defectors, who were not determined as persons eligible for protection on the ground that they are narcotics traders, may receive protection and support of settlement support facilities, protection of their residence, academic background and recognition of qualifications, national pension special cases, etc. under the Act on the Protection and Settlement Support of North Korean Refugees, and receive the minimum amount of objective guarantee for their lives worthy of human dignity by such means as being able to receive benefits, etc. under certain conditions under the National Basic Living Security Act. Thus, the legal provisions of this case cannot be deemed as infringing on

Documents subject to adjudication;

Part concerning "narcotics Trading" in Article 9 (1) 1 of the Act on the Protection and Settlement Support of Residents escaping from North Korea (Amended by Act No. 10188, Mar. 26, 2010)

[Reference Provisions]

Article 34(1) of the Constitution

Reference Cases

A. Constitutional Court Decision 201Hun-Ba12 on March 29, 2012

B. Constitutional Court Decision 2009Hun-Ba47 on February 23, 2012

Parties

The number of senior citizens who are attorneys of the Gu Kim Il-man's representative

The Seoul High Court 2011Nu34759 revocation of revocation of the decision to grant protection

Text

Article 9(1)1 of the North Korean Refugees Protection and Settlement Support Act (amended by Act No. 10188, Mar. 26, 2010) does not violate the Constitution concerning "narcotics transaction".

Reasons

1. Summary of the case;

On August 11, 2010, the claimant was living in North Korea and entered North Korea. At the time of his residence in North Korea, the applicant was confirmed to have transacted in ice, a narcotics, etc. in North Korea. Accordingly, the Minister of Unification issued a disposition not to determine the applicant as a person eligible for protection on the ground that the applicant falls under a drug transaction offender under Article 9 (1) 1 of the North Korean Refugees Protection and Settlement Support Act (hereinafter “the Act”).

When a claim seeking revocation of the above disposition is dismissed (Seoul Administrative Court 201Guhap13507), the claimant filed a petition for adjudication on the constitutionality of Article 9(1)1 of the Act during the appellate trial (Seoul High Court 2011Nu34759), and the petition was dismissed on May 3, 2012, the claimant filed a petition for adjudication on constitutional complaint on the constitutionality of the Act on June 8, 2012.

2. Object of adjudication;

The subject of this case’s adjudication is whether the part concerning “narcotics transaction” in Article 9(1)1 of the North Korean Refugees Protection and Settlement Support Act (amended by Act No. 10188, Mar. 26, 2010) violates the Constitution. The contents of Article 9(1)1 of the Act are as follows.

【Provisions Subject to Adjudication】

North Korean Refugees Protection and Settlement Support Act (Amended by Act No. 10188, Mar. 26, 2010)

Article 9 (Criteria for Protection Decision) (1) In determining whether to provide protection pursuant to the main sentence of Article 8 (1), any of the following persons may not be designated as a person eligible for protection:

1. International criminal offenders involved in aircraft hijacking, drug trafficking, terrorism or genocide, etc.;

3. The claimant's assertion;

In addition, it violates the principle of clarity because it is not clear whether the transaction of psychotropic drugs, such as ice ices, is included in the transaction without commercial purpose and habituality. Also, it violates the right to live decent life and the right to pursue happiness of North Korean defectors, who are narcotics traders, by allowing them to refuse protection and support under the law, such as settlement money, housing subsidy, etc., so that they may refuse protection and support under the law.

4. Determination

(a) Whether it violates the principle of clarity;

The principle of clarity that the contents of legal norms that restrict fundamental rights should be clear are not required to the same extent as in all Acts, and there is a difference in the degree required according to the nature of individual laws or provisions. Whether a certain provision is clear or not must be determined by considering the nature of the relevant provisions in an organic and systematic manner, not only the language and text of the provision, but also the relevant provisions in an organic and systematic manner. Even when a general or indefinite concept is used, it is necessary to determine clarity depending on whether a reasonable interpretation is possible in consideration of the legislative purpose of the relevant Act (see Constitutional Court Decision 2011Hun-Ba12, Mar.

The provisions to be tried shall protect and protect North Korean defectors who have committed a narcotics transaction crime that causes social harm.

The legislative intent of the Narcotics Control Act to ensure the international response and cooperation to the transaction of narcotics by allowing the refusal of support, while realizing national security and public welfare, etc. differs from that of the Act on the Control of Narcotics, etc. to ensure appropriate regulations on the handling and management of narcotics on the premise of punishment. Therefore, it is difficult to view that the concept of narcotics and psychotropic drugs in the Act on the Control of Narcotics, etc. is distinguished from that of the Act on the Control of Narcotics, etc., and it is difficult to deem that

The psychotropic drugs under the Narcotics Control Act are strictly regulated as those that cause or are likely to cause physical or mental dependence upon the misuse or abuse of psychotropic drugs by acting in the human central system. In the event that psychotropic drugs are subject to illegal transactions, they are highly likely to cause serious social harm and harm. Meanwhile, narcotics refer to “narcotics and substances showing symptoms of addiction if they are dead in their habitability,” and are characterized by physical and mental dependence (toxic and dampness), and there is no doubt about whether psychotropic drugs in the Act on the Control of Narcotics, Etc. fall under the prior meaning of narcotics. Accordingly, the psychotropic drugs in the context of narcotics in question include the act of trading psychotropic drugs. Moreover, it is evident in its literal sense that the provision that is subject to the judgment does not limit the scope of the narcotics transaction for profit or habitually.

In light of the language and legislative intent of the provision subject to adjudication, the term “narcotics transaction” of the provision subject to adjudication includes psychotropic drug transactions, and is not limited to commercial or habitual transactions. Therefore, the part of the provision subject to adjudication does not violate the principle of clarity.

B. Whether a life worthy of human dignity is violated

In determining the level of benefits to guarantee a life worthy of human dignity as prescribed by Article 34(1) of the Constitution, a wide range of discretion may not be granted since the State’s specific determination of the level of benefits should take into account the complex and diverse factors, such as the entire income level and living standards of the citizens, the scale and policies of the State, and the interests of each class of the citizens, etc. Accordingly, whether the minimum standard of living provided by the State guarantees the minimum standard of living worthy of human dignity of the citizens should not be determined with the benefits provided by a specific law, and the determination of whether the minimum standard of living provided by the State is at least the objective content to guarantee a life worthy of human dignity of the citizens should be based on the overall level of all kinds of benefits or various burdens provided by the State for the minimum standard of living (see, e

North Korean defectors, who were not determined as persons eligible for protection on the ground that they are drug transaction offenders, may be provided with protection and support of settlement support facilities, protection of their residence, academic background and recognition of qualification, national pension special cases, etc. (Article 9(3) of the Act), and benefits under the National Basic Living Security Act, medical benefits under the Medical Care Assistance Act, and national rental housing eligibility under the Regulations on Housing Supply. In light of this, the objective minimum guarantee for a life worthy of human dignity is being provided to North Korean defectors, who are not persons eligible for protection. Accordingly, the provision subject to adjudication cannot be deemed to infringe on the right of North Korean defectors to live a decent life, who are narcotics traders.

C. Whether the right to pursue happiness is infringed

The right to pursue happiness under Article 10 of the Constitution is characterized as a comprehensive right of freedom to exclude citizens from the interference of state power with the activities to pursue happiness, and it does not mean that citizens may actively demand the State to provide necessary benefits to pursue happiness (see Constitutional Court Decision 2003HunBa39, Nov. 27, 2003). Therefore, it cannot be said that Article 10 of the Constitution infringes on the right to pursue happiness of North Korean defectors, who are drug traders.

5. Conclusion

Therefore, the clause to be tried does not violate the Constitution, and is so decided as per Disposition by the assent of all participating Justices.

Judges

Justices Park Jong-chul (Presiding Justice) Lee Jong-sung Kim Lee, Lee Jin-sung Kim Jong-sung, Cho Chang-sung, Cho Jong-won