부산대학교 도서관

Under the Public Officials Pension Act (hereinafter, the POPA) in Korea, the provisions on the scope of children who will receive survivor benefits (hereinafter, the Survivor Scope Clause or the SSC) exclude aged 19 years or older unless they fall under the exceptional circumstances of disability. However, both the National Pension Act and the Industrial Accident Compensation Insurance Act in Korea exclude children who are not 19 years of age or older but 25 years of age or older from the range of survivors. It was argued in the Constitutional Court that the SSC under the POPA violated the equal rights and property rights of children over 19 years of age. Until 2019, the Constitutional Court has made judgments three times on the scope of survivors under the POPA, but the major opinion has not changed the existing precedent. Even in the most recent decision in 2019, the six judges agreed that the SSC could not infringe the constitutional equal rights and property rights of children over 19 years old. On the other hand, the three judges expressed their disagreement deciding that the SSC violated specially the equal rights of children over 19 years of age. This article tries to carry out a commentary work mainly on both the method of argumentation and the content of the argumentation that was revealed in the 2019 decision of the Constitutional Court on the subject of this time. First of all, with regard to the determination of whether the SSC violates the equal right, I hope the Constitutional Court choose these topics as constitutional arguments: Analyzing the reasons for the adoption of the age standard over 19 years old, Researching on supplementary measures for the age standard to solve exceptional problems like a case deals with children over 19 years old, but not independent status yet, Reviewing of the application of equal rights to the more diverse comparative group as regards children over 19 years of age. Next, with regard to the determination of whether the SSC violates the property right, my suggestion as constitutional argument of the Constitutional Court is as belows: Researching argumentation in response to arguments emphasizing property rights between the dual nature of the right to receive benefits for survivors, Making the Constitutional Court's direct review toward the Legislative discretion including measures to quantify it, Discussing Constitutional Judge's willingness to consistent and meticulous argumentation to draw final conclusions.