Seoul Administrative Court Refers Case to Constitutional Court
Lack of Approval Criteria Leaves Discretion to Authorities
Potential Infringement of Freedom of Association and Equality Rights
A constitutional review is set to be conducted on a provision of the Civil Act that requires approval from the relevant administrative authority to establish a non-profit incorporated association, but does not specify the requirements for such approval and leaves it to the discretion of the authority. This is taking place 66 years after the enactment of the Civil Act.
According to law firm Bae, Kim & Lee (Managing Partner Lee Junki) on January 19, the 12th Division of the Seoul Administrative Court, which is currently hearing a lawsuit to overturn the Ministry of Gender Equality and Family’s (now the Ministry of Gender Equality and Family) refusal to approve the establishment of Youth Direct Action, recently accepted the plaintiff’s request for a constitutional review. The court stated, “We refer the question of the constitutionality of the part of Article 32 of the Civil Act concerning ‘non-profit incorporated associations’ to the Constitutional Court.”
If a court refers a law applicable to an ongoing case for constitutional review by the Constitutional Court, the proceedings are suspended until the Constitutional Court issues its decision on constitutionality.
Article 32 of the Civil Act (Establishment and Approval of Non-Profit Juridical Persons) provides that “an association or foundation with the purpose of academic, religious, charitable, artistic, social, or other non-profit activities may become a juridical person with the approval of the competent authority.” The part now subject to constitutional review concerns incorporated associations.
Previously, Youth Direct Action, an organization established to promote youth participation in society and strengthen democratic citizenship, applied for approval to establish a non-profit incorporated association from the Ministry of Gender Equality and Family, the competent authority, but was rejected. The reasons cited included that its office was located only in Seoul and that it lacked a solid financial foundation for carrying out its intended activities.
Youth Direct Action responded by stating, “Many organizations that have already received approval to operate have offices only in Seoul, and if specific criteria for financial stability are presented, we are willing to address them.” Nevertheless, the Ministry of Gender Equality and Family continued to refuse approval for establishment.
In response, Bae, Kim & Lee and Dongcheon Public Interest Foundation (Chairman Yoo Wook), which was established by Bae, Kim & Lee, collaborated with the Korea Public Interest Foundation Association, which has supported the establishment of Youth Direct Action, to file an administrative lawsuit. They applied to the court for a constitutional review, arguing that Article 32 of the Civil Act, which serves as the basis for refusing approval, infringes upon the constitutional rights to freedom of association and equality.
In its decision to refer the case, the Seoul Administrative Court pointed out, “If the establishment of a non-profit incorporated association is left entirely to the discretion of the administrative authority without specific criteria, it cannot be ruled out that organizations not aligned with state power or mainstream social views may find it difficult to obtain legal status.”
The court further stated, “The system of approval for non-profit incorporated associations is an essential matter that significantly affects the exercise of freedom of association and should be regulated by law enacted by the National Assembly. Leaving it to administrative discretion may violate the principle of parliamentary reservation, and allowing broad discretion without any defined requirements could also violate the principles of proportionality and equality.”
Bae, Kim & Lee and Dongcheon commented, “The approval system for establishing non-profit juridical persons was introduced under the influence of colonial-era legislation and has remained unchanged since, while major countries including Japan have already liberalized the establishment of non-profit juridical persons and operate public interest foundation systems only for tax benefits and similar purposes. This constitutional referral goes beyond a single case, highlighting the need to fundamentally reconsider the arbitrary decisions of competent authorities, the inconsistent and opaque approval practices across ministries, and the long administrative delays caused by the lack of clear criteria that have been repeatedly encountered in the establishment process of non-profit incorporated associations.”
They added, “The referral for constitutional review of Article 32 of the Civil Act is significant in itself, and we hope that, even before the Constitutional Court’s decision, this will trigger a full-fledged discussion on institutional reforms concerning the establishment and operation of non-profit juridical persons.”
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