NHRC submits written opinion on Ministry of Health and Welfare (MOHW)- promoted bill to amend the National Pension Act
The National Human Rights Commission (NHRC) responded with a written opinion today to the Ministry of Health and Welfare (MOHW) 7 August 2003 request for review of the MOHW-promoted bill to amend the National Pension Act (hereafter, “the NPA bill”). The NHRC opinion stated, “the NPA bill excessively violates the basic rights of minority sectors in our society.” In line with the Prisons and Social Protection Act, the NPA bill stipulates that persons in correctional facilities, protective facilities, or long-term care facilities as well as persons whose whereabouts are unknown be excluded from the national pension program for the duration of their confinement or the time for which they were missing. Instead, the NHRC opinion forwarded the view that eligibility for participation in the national pension scheme should be extended to incarcerated and confined persons (category of persons defined in article 2 of the bill).
The national pension program is unique in that while it is an important institutional means of guaranteeing economic and social rights, it is simultaneously a vehicle for “coeval solidarity” since income-earning persons paying into the fund are supporting their contemporaries who have no means of income. However, specialists in Korea have been raising issues with the program, claiming that the Korean national pension program faces a host of problems, including, foremost, crisis in financing the system.
Comparing the MOHW NPA bill and the NHRC written opinion, the main issues in question can be summarized as follows.
First, the current National Pension Act states that persons confined in correctional institutions, protective facilities, and long-term care facilities—and also had been paying into the national pension fund—would be temporarily suspended from the national pension system for the duration of their confinement based on their inability to pay into the system. After such persons are released, they have the option of retrieving the time lost (while incarcerated) by making those pension payments retroactively. As such, they can maintain their pension status—in terms of fulfilling time requirements for length of time they have been paying into the system in order to receive benefits later—without suffering a setback from the time they were incarcerated. However the new NPA bill would deprive these people from such an opportunity by completely precluding such persons from payment back pension payments from their time in confinement.
The NHRC found that this proposed amendment—which aims to streamline pension system administration by excluding persons who are in confinement facilities or who are missing—runs counter to article 37: clause 2 of the Korean Constitution, which states that: “The freedoms and rights of citizens may be restricted by law only when necessary for national security, the maintenance of law and order, or for public welfare. Even when such restriction is imposed, no essential aspect of the freedom or right shall be violated.“ In this case, the NHRC found that the conditions for restricting basic rights are not met since back-payment into the pension system does not pose a threat to national security, the maintenance of law and order or public welfare. Rather, the pension system is a crucial institution for social security and contributes to enhancing law and order as well as public welfare. Thus, persons who have been in confinement or missing should not have their basic right to social security and welfare—a right safeguarded in article 34 of the Korean Constitution—violated.
Second, the NHRC makes the case that certain confined persons not classified in the temporary-suspension clause of the current National Pension Act should be given a temporary-suspension with the opportunity to contribute back pension payments upon release. These confined persons include: persons in detainment centers and branches thereof. Although the Korean system holds as a principle that persons awaiting trial should be held in detention centers while persons convicted and sentenced be held in prisons, in reality, the current system often holds convicted persons serving a sentence in the same facilities with arrested persons awaiting trial. Thus, persons held in detention centers and branch detention centers might, owing to such special circumstances, be unable to earn any income for the duration of their confinement and incur penalties for late payments into the national pension system.
Thus, the NHRC written opinion stated that due consideration should be given to other confined persons whose confinement may restrict them from carrying out income-earning activities and thereby render them unable to make on-time payments into the pension system. Concretely, the NHRC opinion proposed that the NPA bill extend temporary-suspension provisions to persons confined in detention facilities and branches thereof such that these persons could also make up for lost time without such penalties and setbacks.
