attitude towards capital punishment after the first KCC decision on this issue was
overwhelmed by the constitutionality opinion of seven justices. As a matter of fact,
since 1998 there has been no execution, though there were still death row prisoners,
partly because the social movement for repeal of capital punishment became more
significant.^30
In a 2008 case, the majority of the KCC declared that the right of personality
based upon human dignity was infringed by Article 20 ( 2 ) of the Medical Service
Act, which prohibits medical doctors and their aides from informing pregnant
women and their families of the gender of the fetus.^31
The right to equality
Article 11 of the Constitution enshrines equality before the law and the KCC derives
the right to equality from this provision. One key issue in this area is how to set up
the standard of rationality against which legislative policies can be evaluated to see
whether these policies abide by the constitutional principle of equal protection.
Before 1999 , the traditional arbitrariness test was the only standard with which the
KCC reviewed the rationality of unequal treatment. In the famous 1999 Extra-Points
Premium for Veteranscase, the KCC first set forth the two-tiered standard which,
notwithstanding the arbitrariness test, requires a more stringent test. The new
standard, called the “proportionality test,” is to strike a balance between the purpose
of unequal treatment and the means chosen to achieve that purpose. This strict
standard is applied when there are explicit constitutional provisions prohibiting
specific discrimination or when serious danger of infringement of those
constitutional rights connected to unequal treatment is expected.^32
In 2001 , the KCC elaborated this two-tier test by declaring that even if the
proportionality test is required, in cases where explicit constitutional provisions
permit state institutions to provide benign discrimination or privilege to a certain
group of people, the strict test can be relaxed in the course of balancing. In this case,
the KCC upheld another extra-point system for those who had provided distin-
guished service to the state because their privilege is explicitly safeguarded by
Article 32 ( 4 ) of the Constitution and therefore the relaxed strict test can be applied.^33
Since Korean society is traditionally influenced by a patriarchal family system,
the KCC has had a number of cases dealing with statutory provisions in relation to
(^30) Constitutional Court,Constitutional Adjudication System’s Influence on Korean Society
(in Korean) (Seoul: Constitutional Court, 2010 ), p. 66.
(^31) Constitutional Court Decision 2004 Hun-Ma 1010 , July 21 , 2008 ,Korean Constitutional
Court Reports, Vol. 20 ,No 2 , Part 1 , 236.
(^32) See Jongcheol Kim, “The structure and basic principles of constitutional adjudication in
the Republic of Korea,” in K. Cho (ed.),Litigation in Korea(London: Edward Elgar
Publishing, 2010 ), pp. 129 – 30.
(^33) Constitutional Court Decision 2000 Hun-Ma 25 , February 22 , 2001 ,Korean Constitutional
Court Reports, Vol. 13 ,No 1 , 386.