Constitutional Court Upholds Constitutionality of Provisions Punishing Age Discrimination in Hiring and Obstruction of Business by Fraudulent Means

The Constitutional Court has ruled that the provision of the Act on Prohibition of Age Discrimination in Employment and Promotion of Employment for Older Persons, which mandates criminal punishment for employers who discriminate based on age without reasonable cause during recruitment or hiring, as well as the Penal Code provision on “obstruction of business by other fraudulent means,” do not violate the Constitution. On January 29, the Constitutional Court decided, by a 7-2 vote among the justices, that the provision of the Act punishing age discrimination in employment is constitutional, and unanimously upheld the constitutionality of the phrase “those who obstruct another’s work by other fraudulent means” in Article 314, Paragraph 1 of the Penal Code (2021Hun-Ba404).

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[Case Overview]

Mr. A and others were responsible for HR and recruitment work at a bank. They maintained a separate list for “special applicants,” which included members of the National Assembly, influential figures, and employees of the Financial Supervisory Service who could potentially influence the bank’s business or regulatory affairs, as well as a list for “children of executives and employees,” which included children of department heads or higher-ranking executives.

They were indicted on charges of obstruction of work by fraudulent means, for repeatedly facilitating irregular admissions by manipulating document screenings and interview scores, thereby interfering with the interviewers’ work and the recruitment process.

Additionally, during the recruitment of new employees, they excluded applicants who exceeded the internal age criteria from the document screening process unless there were special circumstances, and applied differentiated scoring standards by age, thereby discriminating in recruitment and hiring based on age without reasonable cause, in violation of the Act on Prohibition of Age Discrimination in Employment and Promotion of Employment for Older Persons.

Mr. A and others were found partially guilty in January 2020, and after appeals and a Supreme Court review, the verdict was finalized in June 2022. During the appeal, they requested a constitutional review of Article 23-3, Paragraph 2 of the Act and Article 314, Paragraph 1 of the Penal Code, but the request was dismissed, leading them to file a constitutional complaint.

[Subject of Review]

- Article 23-3 (Penal Provisions), Paragraph 2 of the Act on Prohibition of Age Discrimination in Employment and Promotion of Employment for Older Persons: “An employer who, in violation of Article 4-4, Paragraph 1, Subparagraph 1, discriminates based on age without reasonable cause in recruitment or hiring shall be subject to a fine of up to 5 million won.”

- Article 314 (Obstruction of Business), Paragraph 1 of the Penal Code: “A person who obstructs another’s work by the means described in Article 313 or by force shall be punished by imprisonment for not more than five years or by a fine not exceeding 15 million won.”

[Summary of Opinion Supporting Constitutionality of the Act’s Provision]

- The Act aims to “prohibit employment discrimination based on age without reasonable cause and to support and promote employment so that older persons can have jobs suitable to their abilities, thereby contributing to employment stability for the elderly and the development of the national economy.” Age discrimination in employment fundamentally violates the principle of “treatment based on ability,” and thus contravenes the principle of equality.

- Considering the legislative purpose, the core content of the prohibition of age discrimination, the wording of the provision, interpretations by the Supreme Court and related agencies, and the content of related or similar regulations, the provision in question is sufficiently specific to allow for the derivation of its meaning and criteria for judgment. It provides employers with the necessary standards for making decisions during recruitment and hiring, and prevents arbitrary law enforcement by authorities. Some degree of general and abstract legislation is inevitable to ensure the adaptability of legal norms.

- Therefore, this provision of the Act does not violate the principle of clarity required by the rule of nullum crimen sine lege.

- While the provision does restrict the freedom of contract for employers or those with hiring authority, the restriction is limited to age discrimination “without reasonable cause,” and thus cannot be considered excessively severe. In contrast, the public interest in prohibiting discrimination in employment and ensuring substantive equal opportunity is extremely significant.

- Therefore, this provision of the Act maintains a balance of legal interests and does not violate the principle of proportionality or infringe upon the freedom of contract.

[Summary of Dissenting Opinion on the Act’s Provision]

- Justices Kim Sanghwan and Kim Bokhyeong

- The provision in question, with its abstract term “reasonable,” does not provide clear criteria or direction for judgment. Furthermore, given the phrase “without reasonable cause,” it is unclear whether only very exceptional cases of age discrimination are exempted, or whether the crime is established only when there is absolutely no reasonable cause from the actor’s perspective at the time. This ambiguity persists even in light of the legislative intent to support and promote employment suitable to ability and to contribute to employment stability.

- Although the Act provides an exception for age discrimination “where a specific age criterion is unavoidably required due to the nature of the job,” it is difficult to predict from the provision alone whether this refers to differences in physical or mental ability due to age, or to differences in learning or adaptability. It is also unclear how factors such as the size or nature of the workplace should be considered in determining the presence or absence of “reasonable cause.” Moreover, it appears difficult to supplement these ambiguities through judicial interpretation, and there is a lack of accumulated interpretive case law.

- Ultimately, this provision fails to provide citizens with clear behavioral standards or guidelines as a penal regulation, and grants excessively broad discretion to law enforcement agencies, thus violating the principle of clarity required by the rule of nullum crimen sine lege.

[Summary of Opinion Supporting Constitutionality of the Penal Code Provision]

- In 2011, it was determined that terms such as “fraudulent means,” “work,” and “obstruction” in this Penal Code provision do not violate the principle of clarity required by the rule of nullum crimen sine lege, considering the legal interests protected by the offense of obstruction of work and related provisions.

- In 2025, it was determined that the statutory penalties for obstruction of work by force and for obstruction of official duties do not violate the principle of equality, even if there is an imbalance in the penal system, when considering the legal interests protected and the nature of each offense.

- There is no reason to depart from these precedents.

[Significance of the Decision]

This was the first case in which the Constitutional Court reviewed the constitutionality of the provision in the Act on Prohibition of Age Discrimination in Employment and Promotion of Employment for Older Persons that mandates criminal punishment for employers who discriminate based on age without reasonable cause during recruitment or hiring.

An Jaemyoung, Law Times Reporter

※This article is based on content supplied by Law Times.

This content was produced with the assistance of AI translation services.