Research Report
Definition on Vulnerable Groups and Protection of their Rights under the Korean Law
I. Background and Purpose of Research
▶ Background and Necessity
○ In 20th century modern constitutionalism, the state is required to select the subjects to which it will take special care and protective measures in order to faithfully guarantee fundamental freedoms and rights, and to prepare and implement legislative measures for them.
○ In individual domestic laws, specific groups such as the ‘vulnerable class’ are collectively referred to and special measures for them are used in 121 laws.
○ However, there is almost no legal definition of the vulnerable class domestically or internationally, and no general definition has been formed, so it is not specifically specified what the vulnerable class is, what scope it can be viewed as, or what types it has.
○ Since the definition and scope of the same or similar vulnerable class are different in each individual law without any valid basis or standard, consistency and efficiency may be reduced in promoting related laws and policies, and there is a high risk of confusion in the application of laws and regulations due to ambiguity and complexity.
○ Articles guaranteeing rights related to vulnerable groups are also implemented through various laws and regulations without any specific legislative considerations or standards, which may raise concerns about fairness among regulations and may also raise questions about consistency and systematicity among regulations
▶ Research Purpose
○ Analysis of the definition of vulnerable groups and measures to ensure their rights
- We comprehensively investigate the provisions in the current domestic laws that use terms such as vulnerable class and similar terms, identify the current status of the definition and detailed types of vulnerable class, and examine problems in terms of ambiguity of related provisions, consistency between related provisions, and systematicity.
- Through comparative legal review, we derive implications for domestic legal issues regarding the concept of vulnerable groups and measures to guarantee their rights
○ Proposal of measures to improve the definition of vulnerable groups and the legal system to guarantee their rights
- As a measure to improve the problems in the definition of vulnerable groups and the guarantee of rights, this research provides the revision to the Bill on Promotion of Collaboration for the Protection and Support of Vulnerable Groups
- By drafting and proposing a "Guide to Drafting Legislation on the Concept of Vulnerable Groups," I extract common concepts for vulnerable groups to establish a general definition, and based on this, select factors to consider when legislating detailed concepts and types of vulnerable groups by field, and select matters to consider when legislating measures to guarantee the rights of vulnerable groups.
Ⅱ. Contents
▶ Analysis of domestic laws on the definition of vulnerable groups and protection of rights
○ History and need for protection of vulnerable groups
- The term 'vulnerable class' is believed to have been first used in domestic law in the Ministry of Strategy and Finance and its affiliated organizations revised and implemented in 1996. Similar terms to 'vulnerable class', such as 'marginalized class' and 'socially disadvantaged', also began to be used in laws around the same time
- As of August 2024, the term "vulnerable class" or similar terms is used in 121 statutes and regulations, but it is difficult to discern objective standards or differences in the definition or usage of the three terms
- On the other hand, the vulnerable class in the international community seems to have started from the disaster research of O'Keefe in the field of sociology in the 1970s, and in the case of the field of law, it has been used in international human rights instruments since the 1990s
- The protection of the vulnerable can be found in the State's duty to protect fundamental rights, legislators' duty to protect fundamental rights, guarantee of fundamental social rights, legislative discretion of legislators, and legislative roles for the realization of substantial equality
○ Current status of the definition and types of vulnerable groups under domestic law
- There are about 90 statutes and subordinate statutes using the vulnerable class under domestic statutes and subordinate statutes, and about 265 statutes and subordinate statutes that use the underprivileged class
- There are about 25 statutes and subordinate statutes using the socially underprivileged, and about 5 statutes and subordinate statutes use the term "minority" and other terms
- Regulations related to vulnerable groups in the current statutes and subordinate statutes use only terms in determining concepts, or most of them list or exemplify the types of groups included in the vulnerable groups
○ Current status of guaranteeing rights of vulnerable groups under domestic laws
- Among the 121 statutes and regulations, 77 statutes (64%) of the statutes and subordinate statutes have one scheme for guaranteeing rights, 24 (20%) of the statutes and regulations that have two schemes for guaranteeing rights, and three statutes and regulations with three schemes for guaranteeing rights
- 7 statutes and subordinate statutes specifying four measures to guarantee rights, six statutes and subordinate statutes specifying five measures to guarantee rights, and five statutes and subordinate statutes (4%)
- 121 laws prescribe a total of 201 measures to guarantee rights by type. Among them, 47 cases are assigned to responsibilities, 27 cases are to be statutory plans, 26 cases are to the affairs of related institutions, 17 are to be provided for projects, and 17 are to be used to conduct fact-finding surveys. Five, three for comprehensive support measures, 20 for subsidization, 10 for preferential measures, 11 for accessibility improvement, 14 for installation of facilities, 5 for legal assistance, and 4 for provision of vouchers; Relaxation accounted for 5 cases and others accounted for 7 cases
- Of the total 201 measures for guaranteeing rights, 125 cases of abstract measures for guaranteeing rights accounted for 62% of the total, while 76 cases of specific measures for guaranteeing rights accounted for only 38% of the measures for guaranteeing rights
▶ A comparative analysis of the concept of vulnerable groups and the guarantee of their rights
○ Subject of comparative analysis
- The United Nations and the EU are examined at the level of international organizations as objects of comparative legal analysis on the concept of vulnerable groups and measures to guarantee their rights
- In addition, the legislative systems of the United Kingdom of Great Britain and Japan are considered as an example of individual countries
- However, in the case of international norms and foreign laws, it is very rare that the vulnerable class, etc. is stipulated in the law itself
○ Comparative analysis of the concept of vulnerable groups
- In the case of international norms and legislation of major countries, there is also no general definition of the vulnerable class, but the table of concepts could be examined
- In the case of the United Nations, the table on the concept of vulnerable groups includes a group that has been in discriminatory situations for a long time, exclusion from social participation, violation of human rights such as equal rights, special needs for protection, and relative vulnerability
- In the EU, vulnerability is understood to be relative and specific, and attention is paid to the occurrence of harm, social exclusion and relevance
- In the United Kingdom, there is the specific acts that define children or vulnerable persons as vulnerable groups
- In Japan, children, senior citizens, persons with disabilities, and persons in need of living are recognized as vulnerable groups, while individual Acts stipulate differently in each case
○ Comparative legal analysis on the guarantee of rights of the vulnerable
- In the international norms and foreign laws, various schemes for guaranteeing rights by types of vulnerable groups are provided
- International norms and related documents are usually at the level of prescribing abstract and general matters, and detailed measures are promoted by each country at its discretion through statutes or policies, etc.
- In the case of international norms, the emphasis is placed on measures to guarantee abstract rights, such as the obligations of member states and the duty to take special protective measures
- To ensure that the rights of vulnerable groups, etc. can be effectively guaranteed by requesting not only to take legislative or policy measures, etc. for special protection of vulnerable groups, etc., but also to check or supervise whether such measures are being implemented faithfully
- In the United Kingdom and Japan, due to the nature of legislation that designates a specific group as a vulnerable class, measures for guaranteeing the rights of the vulnerable are centered around specific measures for guaranteeing rights
▶ The concept of vulnerable groups and measures to improve the legislative system to guarantee their rights
○ Revision to the Protection of the Vulnerable Classes Bill
- It was made clear that the purpose of the Bill is to lay the foundation for the appropriate and harmonious promotion of policies related to vulnerable groups through the systematic management and cooperation of the policies related to the vulnerable group that have been established and implemented by each agency, and the existing master plan was to be improved. Relevant provisions shall be amended to meet the legislative intent, such as reorganization into a comprehensive management plan
- The term "vulnerable" should be changed to "persons or persons in need of special measures because their rights are infringed or feared to be infringed on because their social participation is restricted or excluded due to physical, mental, social, economic, or technological factors, etc."
- The policy impact assessment system and the policy operation inspection system should be newly established in the revised bill reflecting the necessity of the regulations on the implementation inspection and supervision of measures to guarantee the rights of the vulnerable
○ A guide to drafting statutes to guarantee the definition and rights of vulnerable groups
- Where it is intended to include matters concerning the vulnerable class, the relevant terms should be selected from among the terms of the vulnerable class, the underprivileged or the socially underprivileged, and the marginalized class, in consideration of the overall legislative purpose of the relevant Acts and subordinate statutes, etc., and the relevant statutes and subordinate statutes shall be selected as appropriate in the future.
- In regulating the vulnerable in a specific field, the scope of application should be made clear by including related fields, such as transportation, education, disaster, environment, etc. in the terminology of the vulnerable group, and one Act or statute pertaining to one vulnerable group shall be included in the term, unless there is a compelling reason not to do so. Systematization shall be ensured by the use of terms and to prevent confusion among offenders;
- The term "vulnerable class" within the meaning of the relevant statutes and subordinate statutes shall be prescribed in order to clearly identify the vulnerable class used in the relevant Acts and subordinate statutes; In order to enhance the consistency between related statutes and subordinate statutes, the relevant laws should be prescribed in conformity with the general definition of “person or persons who require special legal measures to ensure that various fundamental rights or legal rights provided for in the Constitution or laws under the Constitution or other laws are guaranteed"
- Where the statutes and subordinate statutes intend to provide a definition of the vulnerable class, the compatibility, etc. with other statutes and subordinate statutes shall be examined to ensure that the conflicts between statutes and subordinate statutes may be resolved by examining whether the statutes and subordinate statutes conflict with each other due to different provisions
- In cases where the statutes and subordinate statutes to which the drafting act uses the vulnerable, the measures to guarantee the rights shall be also determined, while the measures to guarantee the rights shall be prescribed in the manner of determining specific obligations, rather than making recommendations to the relevant central administrative agencies, etc. or regulating abstract obligations
- Where a detailed plan for guaranteeing rights is devised, it shall be examined whether it is effective, specific, and appropriate enough to contribute to the practical guarantee of rights
- In order to secure the effectiveness of measures to guarantee the rights of the vulnerable, the procedures for gathering the opinions of interested persons in preparing and implementing measures to guarantee the rights of the vulnerable, and the regulations for autonomously inspecting whether such measures are faithfully implemented
Ⅲ Expected effects
○ It could be used as basic data on the current status and characteristics of domestic legislation, international norms, and foreign laws related to vulnerable groups
○ The amendment bill of the Act on the Protection of Vulnerable Classes could be utilized as important reference data in the future legislative process of the said Act or in the enactment of laws related to the vulnerable class
○ The coherence of statutes related to vulnerable groups could be improved by presenting a guide to drafting statutes concerning the concept of vulnerable groups and guaranteeing their rights and using them as reference materials for drafting statutes related to vulnerable groups in the future