Kwang Hyun SUK, Application of Korean Social Security Law to Aliens: Shift from Alien Law to Conflict of Laws Rules, Korea Private International Law Journal, Vol. 27(2) (2021), pp.647-700.
<Abstract>
In this article, the author deals with conflict of laws issues related to the determination of applicable law in the field of social security law, namely international social security law. According to Article 3, Item 1 of the Basic Act on Social Security, the term “social security” means social insurance, public aid, and social welfare service that guarantee income and services necessary to protect all citizens from social risks, such as childbirth, maternity, unemployment, old-age, disability, illness, poverty, and death, and to improve their quality of life. In the modern days where free movement of people is guaranteed, issues of social security law with foreign elements arise frequently. In Korea, discussion on the legal status of aliens under the social security law has recently increased, but it consists mainly in merely interpreting the articles of individual social security laws and disregards the issues of international social security law. However, in social security law cases with foreign elements, it is necessary to determine the applicable law and prevent duplication and omission of social security due to differing connecting factors. The author writes this article to urge Korean lawyers to pay more attention to the necessity and utility of the international social security law, which deals with conflict of laws. The concrete order of discussion is as follows: the status of aliens under the social security law and issues related constitutional law (Chapter II), the concept of international social security law (Chapter Ⅲ), the international social security law of the European Union and Germany, which deals with conflict of laws (Chapter Ⅳ), and the bilateral social security agreements (Chapter V), the current situation of the international social security law in Korea, which deals with conflict of laws (Chapter VI), and the conclusion (Chapter VII). The core of this article is Chapter VI. The Korean social security law academia is indifferent to the fact that the current law takes the form of alien law, but the author points out that Korean individual social security laws (except the Industrial Accident Insurance Act) take the form of alien law with special provisions for aliens, which is substantive law. Moreover, although the Korean social security law academia does not have much awareness of the issues of international social security law, the author derives, by way of interpretation, conflict of laws rules from the Korean individual social security laws. However, some influential theories regard nationality and residence as connecting factors under the Korean individual social security laws, but this is inaccurate. Nationality and residence cannot be connecting factors, as foreigners can also become beneficiaries under the Korean individual social security laws if they meet certain requirements. Whether an individual social security law is applied and whether a person is entitled to receive benefits under that law are separate matters. In order to derive conflict of laws rules, it is necessary to present the connecting factor, that is the basis for uniformly applying Korean social security law to domestic and foreign nationals. As a matter of interpretation, the author identifies the place of employment (if employment is premised) and habitual residence (if not premised on employment) for each individual social security law as the connecting factor, and de lege ferenda suggests that such a connecting factor be expressly set forth in the law as a unilateral conflict of laws rule. In other words, in the case of the Industrial Accident Insurance Act, the conflict of laws provisions should be more clearly defined, and in the case of other individual social security laws, the alien law should be converted into the conflict of laws provisions.
<Keywords>
alien law, social security, international social security law, conflict of laws, connecting factor, social security agreements, applicable law
Kwang Hyun SUK, Application of Korean Social Security Law to Aliens: Shift from Alien Law to Conflict of Laws Rules, Korea Private International Law Journal, Vol. 27(2) (2021), pp.647-700.
<Abstract>
In this article, the author deals with conflict of laws issues related to the determination of applicable law in the field of social security law, namely international social security law. According to Article 3, Item 1 of the Basic Act on Social Security, the term “social security” means social insurance, public aid, and social welfare service that guarantee income and services necessary to protect all citizens from social risks, such as childbirth, maternity, unemployment, old-age, disability, illness, poverty, and death, and to improve their quality of life. In the modern days where free movement of people is guaranteed, issues of social security law with foreign elements arise frequently. In Korea, discussion on the legal status of aliens under the social security law has recently increased, but it consists mainly in merely interpreting the articles of individual social security laws and disregards the issues of international social security law. However, in social security law cases with foreign elements, it is necessary to determine the applicable law and prevent duplication and omission of social security due to differing connecting factors. The author writes this article to urge Korean lawyers to pay more attention to the necessity and utility of the international social security law, which deals with conflict of laws. The concrete order of discussion is as follows: the status of aliens under the social security law and issues related constitutional law (Chapter II), the concept of international social security law (Chapter Ⅲ), the international social security law of the European Union and Germany, which deals with conflict of laws (Chapter Ⅳ), and the bilateral social security agreements (Chapter V), the current situation of the international social security law in Korea, which deals with conflict of laws (Chapter VI), and the conclusion (Chapter VII). The core of this article is Chapter VI. The Korean social security law academia is indifferent to the fact that the current law takes the form of alien law, but the author points out that Korean individual social security laws (except the Industrial Accident Insurance Act) take the form of alien law with special provisions for aliens, which is substantive law. Moreover, although the Korean social security law academia does not have much awareness of the issues of international social security law, the author derives, by way of interpretation, conflict of laws rules from the Korean individual social security laws. However, some influential theories regard nationality and residence as connecting factors under the Korean individual social security laws, but this is inaccurate. Nationality and residence cannot be connecting factors, as foreigners can also become beneficiaries under the Korean individual social security laws if they meet certain requirements. Whether an individual social security law is applied and whether a person is entitled to receive benefits under that law are separate matters. In order to derive conflict of laws rules, it is necessary to present the connecting factor, that is the basis for uniformly applying Korean social security law to domestic and foreign nationals. As a matter of interpretation, the author identifies the place of employment (if employment is premised) and habitual residence (if not premised on employment) for each individual social security law as the connecting factor, and de lege ferenda suggests that such a connecting factor be expressly set forth in the law as a unilateral conflict of laws rule. In other words, in the case of the Industrial Accident Insurance Act, the conflict of laws provisions should be more clearly defined, and in the case of other individual social security laws, the alien law should be converted into the conflict of laws provisions.
<Keywords>
alien law, social security, international social security law, conflict of laws, connecting factor, social security agreements, applicable law