Constitutional Court of Korea

  On April 25, 2024, the Court rejected claims against (1) the provision of the former Resident Registration Act requiring each resident registration certificate to contain fingerprints; (2) the provision of the former Enforcement Decree of the Resident Registration Act requiring the fingerprints of ten fingers to be put on the application form for residence registration card issuance; (3) the provision of the former Enforcement Rule of the Resident Registration Act requiring mayors of cities, counties, or districts to send the application form for resident registration card issuance to their jurisdictional police station; and (4) the conduct of Respondent, Commissioner General of the National Police Agency, in keeping and computerizing fingerprint information and using it for criminal investigation purposes.

  As to the above Enforcement Decree provision, one Justice filed a dissenting opinion that it infringes the right to informational self-determination (violation of the rule against excessive restriction). As to the above Enforcement Rule provision, two Justices filed a rejection opinion that it does not infringe the right to informational self-determination, four Justices filed an upholding opinion that it infringes this right (violation of the principle of statutory reservation), and three Justices filed a dismissal opinion that the claim against it does not meet the requirements of self-relatedness and presentness. As to the above conduct of Respondent, including keeping and using fingerprint information, four Justices filed a dissenting opinion (violation of the principle of statutory reservation).

  On April 25, 2024, the Court determined that (1) Article 1112, Item 4 of the Civil Act, prescribing the legal reserve of inheritance for siblings of a decedent, is simply unconstitutional; (2) Article 1112, Items 1 through 3 of the Civil Act, omitting reasons for disqualification of a legal reserve of inheritance, and Article 1118 of the Civil Act, omitting a provision for the mutatis mutandis application of Article 1008-2 of the Civil Act, are all nonconforming to the Constitution and are to continue to apply until amended by the legislature by December 31, 2025; and (3) Articles 1113, 1114, 1115, and 1116 of the Civil Act are constitutional.

  While agreeing with the Court’s opinion declaring Articles 1112 and 1118 of the Civil Act unconstitutional (nonconforming to the Constitution) as indicated above, Justices Lee Youngjin, Kim Kiyoung, Moon Hyungbae, and Kim Hyungdu dissented in part. They expressed the view that the following provisions are also nonconforming to the Constitution: (1) the second sentence of Article 1114 of the Civil Act, requiring a gift to be included in the calculation of base property for a legal reserve of inheritance, regardless of the timing of the gift, if both the decedent and donee recognized that making the gift would cause loss to a person entitled to a legal reserve of inheritance; and (2) the portion of Article 1118 of the Civil Act providing for the mutatis mutandis application of Article 1008, mandating a gift made by a decedent to a co-inheritor as a special benefit be included in the calculation of base property for a legal reserve of inheritance, regardless of the timing of the gift.

  Dissenting Justices Lee Youngjin and Kim Hyungdu also filed a concurring opinion on Article 1112 of the Civil Act and another concurring opinion on Article 1113, Section (1) and Article 1115, Section (1) of the Civil Act. The first concurrence agreed with the conclusion of the Court’s opinion that Article 1112 of the Civil Act is unconstitutional, but for a different reason. It argued that the portion of Article 1112 prescribing an equal inheritance share for the spouse and direct lineal descendants of a decedent also violates the Constitution. The second concurrence expressed additional views on both Article 1113, Section (1) of the Civil Act, which includes even gifts made for public interest purposes or family business succession in the calculation of base property for a legal reserve of inheritance, and Article 1115, Section (1) of the Civil Act, which provides for the return of the original object of property when returning a legal reserve of inheritance. This concurrence suggested that, although these provisions do not violate the Constitution, they present issues such as conflicts with the decedent's intention or the public interest, and thus, legislative amendments are desirable.

 On March 28, 2024, a unanimous Court held unconstitutional the criterion relating to households composed solely of foreign nationals in Section Ⅰ, “Criteria Regarding Household Composition,” Subsection 2, “Detailed Standards for Household Composition,” of the “Emergency Disaster Relief Payment: Criteria for Household Composition and Objection Processing (2nd),” an administrative rule issued by the relevant ministries on May 13, 2020. This criterion has restricted eligibility for emergency disaster relief payments to only permanent residents and marriage-based immigrants among foreign nationals and has excluded recognized refugees.

 On February 28, 2024, the Court, in a 6-to-3 decision, held that Article 20, Section (2) of the Medical Service Act violates the Constitution. This clause prohibits medical personnel from informing any pregnant woman or any other person of the sex of a fetus before 32 weeks of pregnancy.

 The opinion of the Court is that restricting the disclosure of fetal sex violates the Constitution: it is not a suitable means to achieve the legislative purpose of protecting fetal life, and it fails to satisfy the least restrictive means test by excessively limiting the right of parents to gain access to the information of the sex of their fetus without interference.

 Justices Lee Jongseok, Lee Eunae, and Kim Hyungdu dissented from the Court’s opinion repealing the above provision instantly by issuing a decision of simple unconstitutionality. They expressed the view that a decision of nonconformity to the Constitution should be rendered in order to allow the legislature to amend the timing of disclosure of fetal sex to an earlier stage. 

  On February 28, 2024, a unanimous Court rejected a claim against Article 53, Section (1) of the Labor Standards Act (amended by Act No. 15513 on March 20, 2018), which limits working hours to a maximum of 52 hours per week, and dismissed all of the remaining claims. The Court reasoned that this provision does not infringe freedom of contract and freedom of occupation. 

  On January 25, 2024, a unanimous Court consisting of the eight Justices who participated in deliberations held that the following do not violate the Constitution: the portion of Article 85, Section (3) of the Public Official Election Act (amended by Act No. 12393, February 13, 2014) stating that “No person shall conduct an election campaign targeting the members of a religious institution or organization, by taking advantage of any occupational act in the organization thereof, or shall have such members conduct an election campaign” and the portion of Article 255, Section (1), Item 9 of the same Act regarding the above prohibition clause. The former bans election campaigning taking advantage of any occupational act in a religious organization while the latter provides a penalty for violation of the ban.

  The Court also dismissed the claim against Article 254, Section (2) of the Public Official Election Act (amended by Act No. 9974 on January 25, 2010). This clause punishes any person who conducts an election campaign before the campaign period by any method other than the methods prescribed in the Public Official Election Act. 

 On October 26, 2023, the Court held 1) in a 5-to-4 decision that the portion of Article 92-6 of the Military Criminal Act relating to “any other indecent act” does not violate the Constitution (Hun-Ka cases) and 2) in a unanimous decision that the complaints of Complainants against Article 92-6 of the Military Criminal Act are dismissed (Hun-Ba cases).

 As to Holding 1), Justices Kim Kiyoung, Moon Hyungbae, Lee Mison, and Jung Jungmi filed an opinion for the unconstitutionality of the above portion based on the void-for-vagueness doctrine under the principle of nulla poena sine lege, and Justices Kim Kiyoung, Lee Mison, and Jung Jungmi also filed an opinion for the unconstitutionality of the same portion based on both the rule against excessive restriction and the principle of equality.

- The Hun-Ba cases were all dismissed (by a unanimous Court).

- For the Hun-Ka cases, or constitutional reviews sua sponte requested by ordinary courts, the provision at issue was found constitutional in a 5-to-4 decision.

  On October 26, 2023, the Court, in a 4 (constitutional) to 5 (partially unconstitutional) decision, held that both Article 19 and Article 25, Item 2 of the Prevention of Acquired Immunodeficiency Syndrome Act (amended by Act No. 11749 on April 5, 2013) do not violate the Constitution. These clauses ban a person infected with HIV from committing transmission of HIV to another person through blood or body fluids and punish a violation of this ban by imprisonment with labor for not more than three years.

  Justices Yoo Namseok, Kim Kiyoung, Moon Hyungbae, Lee Mison, and Jung Jungmi filed an opinion for the partial unconstitutionality of the above clauses. They found unconstitutional the portions of these clauses that ban and punish HIV transmission by an Infected Person who acts in good faith compliance with a medical treatment regimen prescribed by a medical provider. 

  On September 26, 2023, a unanimous Court pronounced the below stated holdings involving the nonemployee foreigners insured under the National Health Insurance.

  1. The Court held nonconforming to the Constitution Article 109, Section (10) (insurance-benefits restriction clause) of the National Health Insurance Act (amended by Act No. 16238 on January 15, 2019), ordering that this clause be applied continuously until the legislature amends it by June 30, 2025. The relevant clause immediately restricts the provision of insurance benefits to insured nonemployee foreigners from the following month from when they fail to pay premiums.

  2. The Court rejected the claim against the proviso (minimum premium clause) of Item 1 of Table 2 referred to in Article 6, Section (1) of the former “Health Insurance Application Criteria for Foreigners and Overseas Koreans Residing Long-Term in Korea” (amended by Ministry of Health and Welfare Notice No. 2019-151 on July 11, 2019 and before amendment by Ministry of Health and Welfare Notice No. 2021-63 on February 26, 2021). This clause determined the minimum monthly premium based on the previous year's average premium of all insured members.

  3. The Court rejected the claim against Item 4 (household composition clause) of Table 2 referred to in Article 6, Section (1) of the ministry notice above. This clause limited the recognition scope of the premium payment unit “household” to insured nonemployee foreigners and their spouse and minor children.

  4. The Court dismissed the claim against Article 78, Section (2), Item 3 (information request clause) of the Immigration Act regarding “information about aliens' default related to national health insurance.” This clause allows the Minister of Justice to request information on premium payment default for the examination of stay permits for foreigners.

  On September 26, 2023, the Court pronounced the below stated holdings.

  1. In a 6-to-3 opinion, it held constitutional both the portion of Article 7, Section (1) of the National Security Act regarding “any person who praises, incites, or propagates … or who acts in concert with it,” which provides penalties for any person who praises, incites, or propagates the activities of an antigovernment organization, a member thereof, etc. or who acts in concert with it, and the portion of Article 7, Section (5) of the National Security Act regarding “any person who manufactures, carries, or distributes … with the intention of praising, inciting, or propagating … or acting in concert with it, as referred to in Section (1),” which provides penalties for any person who manufactures, carries, or distributes any documents, drawings, or other expression materials with the intention of committing pro-enemy actions.

  2. In a 4-to-5 opinion, the Court held constitutional the portion of Article 7, Section (5) of the National Security Act regarding “any person who holds or acquires … with the intention of praising, inciting, or propagating … or acting in concert with it, as referred to in Section (1),” which provides penalties for any person who holds or acquires any documents, drawings, or other expression materials with the intention of committing pro-enemy actions.

  3. A unanimous Court dismissed the complaints of some Complainants and the claims against Article 2, Section (1) of the National Security Act and the portion of Article 7, Section (3) thereof regarding “any person who joins …”

  Justices Kim Kiyoung, Moon Hyungbae, and Lee Mison dissented from Holding 1. As to Holding 2, Justices Yoo Namseok and Jung Jungmi filed an opinion of unconstitutionality, while Justices Kim Kiyoung, Moon Hyungbae, and Lee Mison filed another opinion of unconstitutionality.