Focus on Political Schedules over Legislation
Amid Presidential Impeachment and Early Election
The Constitutional Court has issued orders for legislative improvements by declaring certain laws unconstitutional, but 15 such laws have yet to be amended. Among these, 9 laws have already passed their legislative deadlines. Critics argue that the 22nd National Assembly, preoccupied with political schedules following the presidential impeachment and the ensuing early presidential election, has neglected to amend laws directly related to citizens' fundamental rights.
According to the Constitutional Court, of the 15 laws deemed unconstitutional, 6 still have time remaining before their amendment deadlines, while 9 have already missed theirs. On March 23, 2023, the Constitutional Court ruled Articles 46(2), 57(1), and 57(2) of the Act on Registration, etc. of Family Relations?which prevent unmarried fathers from registering the birth of their children?as unconstitutional (2021Hun-Ma975), setting the legislative deadline for May 31, 2025. However, as the National Assembly has not yet amended the law, the 'right to birth registration' for children of unmarried fathers continues to be violated.
It has been six years since the Constitutional Court declared the criminal provisions on abortion in the Criminal Act unconstitutional, yet there remains a legislative vacuum. In April 2019, the Court ruled that Article 269(1) of the Criminal Act, which punishes women for self-induced abortion, and Article 270(1), which punishes doctors for performing abortions at the request or with the consent of pregnant women, were unconstitutional (2017Hun-Ba127), setting a legislative deadline of December 31, 2020. Although the government in the 21st National Assembly announced a bill to amend the Criminal Act to allow abortion up to 14 weeks of pregnancy, and amendments to the Criminal Act and the Mother and Child Health Act were proposed, all were discarded when the Assembly's term ended. As a result, the existing abortion crime provisions lost their effect as of January 1, 2021. Women, medical professionals, and investigative authorities are experiencing significant confusion due to this legislative void, as there is no legal standard for the permissible period for abortion, nor any legal basis for punishing illegal abortion drug transactions.
Article 815(2) of the Civil Act, which invalidates marriages between blood relatives within eight degrees of kinship, was also required to be amended by December 31, 2024, following a Constitutional Court decision in October 2022. However, as no amendment has been made, the deadline has passed.
There are also laws for which the amendment deadline is approaching, but discussions in the National Assembly remain sluggish. The special provision on crimes among relatives in the Criminal Act is a representative example. On June 27, 2024, the Constitutional Court ruled that Article 328(1) of the Criminal Act?which exempts relatives from punishment for property crimes such as theft, fraud, embezzlement, and breach of trust?is unconstitutional (2020Ma468). Although bills to abolish this provision were proposed in the 22nd National Assembly, they remain pending in the Legislation and Judiciary Committee. The amendment deadline is December 31, 2025.
The Civil Act provision that does not specify reasons for loss of the statutory reserved portion (yuryubun) also faces a legislative deadline of December 31, 2025. On April 25, 2024, the Constitutional Court ruled that, while the yuryubun system itself does not violate the Constitution, Article 1112(1) of the Civil Act?which fails to specify reasons for loss of yuryubun for heirs such as children or parents who have neglected the decedent?and Article 1118, which does not provide for the application of provisions on contribution shares, are unconstitutional. Following the Court's decision, a Civil Act amendment (the so-called 'Goo Hara Law'), which allows the family court to declare the loss of inheritance rights for heirs who have seriously violated their duty of support or committed crimes against the decedent, passed the National Assembly's plenary session on August 28, 2024. However, discussions on amending the Civil Act to include provisions for loss of yuryubun and contribution shares have not progressed in the National Assembly.
Both within and outside the legal community, there are concerns about the infringement of citizens' fundamental rights due to legislative gaps, as well as criticism of the National Assembly's legislative negligence. Cha Jinah (51, Judicial Research and Training Institute class 31), a professor at Korea University Law School, stated, "The National Assembly has neglected to process laws necessary to guarantee citizens' fundamental rights and enhance national competitiveness, focusing solely on political strife. If the National Assembly truly wishes to serve the people as their representatives, it must expedite legislative improvements in response to the Constitutional Court's decisions of unconstitutionality."
Hong Yoonji, Law Times Reporter
※This article is based on content supplied by Law Times.
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