KLRI : KOREA LEGISLATION RESEARCH INSTITUTE

Ⅰ. Background and Purpose

▶ Background of research

○ Discussion on the drafting of human rights treaty for old persons at the UN

- Despite the rapid aging population both domestically and internationally, the human rights of the elderly are not improving and are showing a tendency to worsen after COVID-19

- Even though older people are human beings and enjoy various human rights guaranteed by the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights, they have continued to suffer from discrimination and negative prejudice. In addition, the old persons who are excluded from the dominant position are excluded from legal support and benefits and do not receive adequate legal protection. In addition, unlike similar vulnerable groups such as women and children whose human rights are protected by specialized human rights conventions, in the case of the elderly, an specific treaty for their human rights has not yet been adopted despite their human rights vulnerability and  necessity of guaranteeing their human rights

- In order to improve the protection of human rights for the elderly, the Organization of American States and the African Union have adopted their own conventions related to the human rights of the elderly, and recently, the UN has been discussing the need for a convention on the human rights of the elderly under the UN Human Rights Council and the UN High Commissioner for Human Rights

○ It is necessary to study for improving Korean legislation regarding human rights of older persons towards complying with the international standards for the protection of their rights

- If the drafting the human rights treaty for older persons begins at the UN in the future, the Republic of Korea also needs to revise the relevant legal system to conform to such international trends

- It is necessary to preemptively inspect and improve weak areas of domestic legislation related to the human rights of the elderly, such as abuse of the elderly, education for the elderly, and economic stability of the elderly

○ Active participation in international discussions on elderly rights is necessary

- If a human rights treaty is adopted by an international organization, the impact on each country will be significant

- Due to these characteristics, each country will actively participate in the drafting of human rights conventions to ensure that their own interests are reflected, and thereby the Republic of Korea is also required to participate proactively when discussions on drafting the human rights convention for the elderly begin in earnest in the future

- In order for Korea to actively participate, it is necessary to preemptively identify and prepare for the human rights treaty for older persons and related major issues, as well as the current situation of domestic legislation on the subject

▶ The Purpose of the Study

○ In order to preemptively prepare for the discussion on the draft of human rights treaty for the elderly at the United Nations, this study analyzes the current status of domestic legislation related to the human rights of the elderly and seeks future improvement measures to meet the international standards

○ It provides a legal and theoretical basis for Korea to actively respond to international discussions regarding a human rights treaty for older persons in the future

 

II. Main Content

▶ Outlining of the Major legal issues Related to the human rights treaty for Older Persons and Comparison with Domestic Law

○ In this study, we will investigate and analyze major global normative discussions on the human rights treaty for the elderly to derive key elements related to their rights and use them as the basis for comparative research with domestic legislation

- Based on these key elements, we comprehensively investigate domestic laws and regulations related to the human rights of the elderly and compare their appropriateness to examine weak points in the domestic legal system related to the human rights of the elderly

- This study focuses on the economic stability of the elderly, the abuse of the elderly, and the education of the elderly

○ The global discussion on the human rights treaty for the elderly will be focused on the report of the December 2022 Stakeholder Meeting on the Human Rights of the elderly by the UN Human Rights Council, the annual report of the UN Working Group on Aging and the draft of the Convention on the Human Rights of the elderly by Global Alliance on National Human Rights Institutions

○ Based on the main legal issues related to the human rights treaty for older persons, this study examined and compared the relevant laws and regulations in domestic law

- The main scope of this study is economic stability, abuse and education of older persons where domestic legislation is insufficient compared to the international normartive standards

- The current situation and problems of the domestic legislation are analyzed, and improvement measures are suggested as follows

▶ Proposal for Improvement of Domestic Laws related to the Rights of the Elderly

○ First, the improvement measures for domestic legislation in the field of elder abuse are as follows;

- The Act on Welfare of the Elderly which is the most important legal basis for the protection of older persons does not have provisions enough to prevent and respond to the abuse of the elderly

- A specialized law regarding abuse of the elderly needs to be enacted. Under the domestic law, abuse of the elderly is regulated by various laws and, therefore, there is a concern that it may be confused or redundant in the scope of application between each law, making it difficult to respond effectively. In particular, there is a concern of equity between abuse by a family member and abuse by a non-family member

- Before the enactment of a new law, the Act on Welfare of the Elderly should be revised towards adding new provisions for preventing and responding to the abuse such as public defender system, emergency measures, change of investigators, and reinforcement of reporter(whistle-blower) protection, etc

○ Second, measures to improve domestic legislation in the field of education for the elderly are as follows

- The law regarding the education for older persons should be regulated systematically. The education for older persons are currently regulated through various laws and mixed with education for others. 

- In practice, older persons, invisible persons, cannot have opportunities for educations which are appropriated for their needs because the government does not implement their policies for older persons effectively

- A specialized act for education of older persons may be considered, but a measure to systematically revise the provisions of the education for the elderly in a separate article, section, or chapter, such as the provisions for the education of persons with disabilities under the Lifelong Education Act, and to provide education concentrated for the elderly would also be appropriate

- In order to efficiently conduct education for the elderly, it is desirable that regulations on the aged-friendly institutions, professional staff, and programs should be provided. Among the education for the elderly, it is also requested that the system for vocational education and training for the elderly be established and operated

- Vocational education and training are inevitably premised to guarantee the right to work, and in the case of the current legislation, it is difficult to effectively implement the policies due to the lack of specialized vocational education and training regulations for the elderly

○ Third, measures to improve domestic legislation in the field of economic stability for old persons are as follows

- It is important to improve the legislative system that can expand the working opportunities of the elderly. In this regard, it is necessary to revise the current retirement age of 60 and gradually raise it in the future. In the case of the standard employment rate under the Act on Prohibition of Age Discrimination in Employment and Elderly Employment Promotion, in order to promote its legislative purpose, it is necessary to expand the applicable workplaces and raise the current standard employment rate, which does not reflect the reality

- On the other hand, in order to guarantee the working opportunities and employment stability of the elderly, it is necessary to improve the working environment reflecting the characteristics of the elderly. It is also necessary to reorganize the system or to set special standards for the elderly so that working conditions such as the current annual wage system, working hours, methods, and contents can be operated flexibly in consideration of the special needs of old persons. However, various reviews and measures should be prepared together so that such system improvement or special standards must be not abused in the direction of deteriorating the working rights of the elderly

- Lastly, special protection and support are needed for the elderly who are relatively more vulnerable among the elderly in terms of  the right to work. There is a lack of awareness of the relatively more vulnerable elderly group related to the elderly's right to work. It is necessary to discuss matters such as  subdividing the elderly group, conducting surveys or statistics,  analyzing e the cause, and preparing for  of a specialized support system for old persons

Ⅲ. Expected effect

○ Utilization as basic data on the current status of universal human rights norms and regional human rights norms related to the human rights of the elderly

○ Utilization as a reference material when discussing the draft of the human rights treaty of the elderly in international organizations in the future

○ Utilization as a reference material for improving the domestic legal system to improve the guarantee of the elderly's human rights, such as in elder abuse, education for the elderly, and economic stability of the elderly