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A Study on Laws related to Women's Welfare / by Elim Kim
/ KWDI Research Reports /Women's Studies Forum, Vol.7 / December 1991
This paper is a condensation of the 1990 Research Report 200-3 by the
KWDI research team of Park In-duck, Kim Elim, Suh Myung-sun, and Bae
Young-ja.
Kim Elim(Senior Researcher, KWDI)
I. INTRODUCTION
In order to maintain human dignity and to realize real freedom and
equality for all people, it is essential that every citizen be guaranteed
the healthy and cultural life at the least minimum level. The ultimate task
of the state, in the meantime, is to secure rights of its citizens to exist
through the various social policies that correct the structurally uneven
distribution of social resources(goods and services) and to establish
social security measures as a practical vehicle that put the ideal of an
egalitarian society into practice. Because of this effort on the part of
the state, the modern state is called the welfare state.
In the scheme of the welfare state or in the area of social welfare,
however, little attention has been paid to the sexual discrimination that
women have been subjected. This insensitivity toward the plight of women in
society is extended to and replicated in the system of social security
legislation and this in turn has perpetuated the patriarchal order of the
society. E. Wilson in her 1977 pamphlet, Women and the Welfare State, drew
attention to this troubling vicious cycle between the insensitivity toward
women and the perpetuation of the patriarchal order. Since then feminist
after feminist followed her suit and have examined what 'the welfare state'
and 'social welfare' are all about in terms of women. Their critique and
analysis are now in full swing.
Meanwhile, the domestic policy of every government of Korea since 1980 has
been focused on the construction of a welfare society. Accordingly, the
government has been either consolidating the provisions in the Constitution
that guarantee the basic rights of the people to exist or embarking on the
legislation of the social security laws that will provide welfare services
to people. nevertheless, the general understanding of the society toward
social welfare and the will to put it into practice on the part of society
fall far too short to bring about any real change. And the laws related to
the social welfare are all in disarray, too. Few people show active
interest in social welfare and there is not even and significant research
being in conducted this area. When the question turns to women, the picture
becomes even worse. The welfare of individual women is deplorably
neglected. Women's studies from its perspective has yet to produce research
that closely examines the ideology of sexual discrimination reflected in
the legislation of social welfare laws.
Against this bleak background, this study(study period: Sept.1,
1989-Aug.30, 1990) attempts, with a mission to be a part in the advancement
of women's welfare and the elimination of the sexual discrimination against
women, to examine social security legislation, particularly the contents
and application of those laws that define the status and welfare of women.
The study will further present the problems that emerged form the
examination and suggest how to correct them.
As for the methods of the study, welfare related laws and literature from
Korea and abroad were first collected and examined. At the same time
welfare facilities were visited to see first-hand the kinds and quality of
services and programs that are put into place.
II. THEORETICAL BACKGROUND OF WOMEN'S WELFARE
1. The Feminist Critique and Strategies for the Welfare State and Social
Welfare
A. Critique
Western feminists (E. Wilson, M. Mcintosh, G. Pascall, A.S. Sassoon, F.
Williams, etc. (Note: E. Wilson (1977), Women and the Welfare, London:
Tavistock Publications, G. Pascall (1986), Social Policy, London: Tavistock
Publications, F. Williams (1989), Social Policy: A Critical Introduction,
Cambridge: Polity Press)) have been quite critical of the welfare state and
below the major points of their criticism will be outlined. Their first
argument is that the existing welfare policies are fundamentally to
preserve and perpetuate the institution of the family as we know it,
specifically the family in which the man is designated as the breadwinner
and his wife is economically dependent on him and responsible for the
housework. The second contention they are making is that the responsibility
of caring for the children, the elderly, and the sick in the family is
assigned to women. Women are taken as the primary caregivers. Third, they
point out the exclusion of women in welfare policy making. Consequently,
women are now, for their material needs, more dependent on the state than
ever before as clients of welfare services and the source of women's
oppression has expanded from a personal sphere of individual men as to
include the public sphere of the state as well thus they argue. This
attitude on the part of the welfare state, they interpret, stems from the
intention to pass on the cost of welfare and the patriarchal sexual
division of labor in the home to the family.
B. Feminist strategies(Note: The classification of feminists here followed
the one used in A.J. Jagger (1983), Feminist Politics and Human Nature,
Sussex: The Harvester Press.) for social welfare
The contention of liberal feminists is that the root of sexual
discrimination against women is found in the socialization process of
women. Women are discriminated against in educational opportunities and
constantly exposed to a different social atmosphere.
If women are allowed equal opportunities in education and equality by law,
they would overcome the discriminatory climate of the society. Their
strategies(Note: F. Williams (1989), op. cit., pp.45-46.) in the area of
social welfare are first, without any general analysis or criticism of the
social structure, to push for the revision of those welfare laws that are
sexually discriminating and through education to get rid of sexually
discriminating attitudes of those officials who are handling the
administration of welfare laws and who are welfare providers.
Their second area of attack is to push for new legislation or reform of
existing laws to grant women more opportunities and rights. Third, they
attempt to organize women everywhere to pressure local governments for the
institutionalization of equality policies.
Radical feminists on the other hand trace the roots of sexual
discrimination against women to female physiology. To overcome this, they
argue, women ought to be liberated from biological reproduction. Men should
find roles in child-bearing and child-rearing (Note: Schulamith Firestone
(1970), The Dialectic of Sex, Kim Yeh-sook(trans.), Seoul:
Pulbitchoolpansa, p.204.) and share the responsibility equally. They
further contend that the system of family based on the biological
relationship be dismantled because they understand it gives rise to
patriarchy.
J. Dale and P. Foster(Note: Jennifer Dale & Peggy Foster (1986), Feminists
and State Welfare, London: RKP, pp.156-157.) summarize the welfare strategy
of the radical feminists who criticize every system of the state created in
male dominance. First, radical feminists are attempting to provide
non-sexist alternative welfare services for women. Second, they aim to set
a new trend in the current welfare system by giving women as much knowledge
as possible about their own welfare needs and potential ways of fulfilling
them. Third, they try to develop a new relationship between service
providers and clients, based on shared knowledge and power within
non-hierarchical, democratic welfare structures, which could challenge
conventional, hierarchical welfare institutions.
For Marxist feminists, the sexual division of labor stemming from the
capitalist mode of production is the material foundation of the oppression
of women. In other words, while men are plotting to accumulate wealth, in
the world, women are oppressed by engaging themselves in biological
reproduction and the reproduction of daily labor in private domain.
With this understanding, Marxist feminists demand for women's welfare, the
full participation of women in the labor market rather than welfare
services that are inevitable fragmented and somewhat reactive. When that is
accomplished, then all women as workers will have to join male workers and
work together to abolish capitalism.
According to socialist feminists, "patriarchy and capitalism exist
independent of each other on two separate bases but form an alliance to
produce the system of patriarchal capitalism that give rise to the sexual
division of labor in the home and the division of labor in the labor
market,"(Note: Lee Seung-hee (1987), "The True Nature and Forms of Women's
Problems," The Introduction of Social Sciences, Yoon Han-taek, Cho
Hyung-jae, et al., Seoul: Baeksansuhdang, p.201.) the forms of women's
oppression. They thus demand that the welfare state stop reinforcing the
division of roles by gender that sees the dependence of women and the duty
of caring as to be natural role of women and that the state stop supporting
the particular form of family as the head of the household. They make two
recommendations for their demand: Women be allowed to engage in paid work
in their own right and local communities first take the responsibility to
care for the young, the old, the sick and weak, and other helpless members.
2. The Significance and Necessity of Women's Welfare
The definition 'welfare' varies (Note: Chun Nam-jin (1987), A Discourse on
Social Policies, Seoul National University Press, p.3; Kim Sang-kyun
(1987), The Modern Society and Social Policies, Seoul: SNU Press, p.6.)
according to the understanding and perspective of the writer's defining it,
but what is clear is that it should not be defined in abstract terms. When
it is, it sounds hollow and lacks the will and determination. Futhermore we
feel that the concept of welfare should include the enforcement strategies
that help women overcome the realities of sexual discrimination.
In this study, therefore, 'women's welfare' means creating a state in
which the conditions of life are satisfactory for women and women are
allowed to pursue their own wealth, health, and happiness by being
guaranteed equal rights to enjoy human dignity and a life of quality. With
this conceptual framework, the women's welfare scheme should include, on a
structural dimension of the society, all the necessary measures to reform
social institutions and laws that perpetuate the patriarchal social order
and value system.
In the selection of such women's welfare clients and the types of services
provided, this study maintains the general institutionalization of welfare
services or universalism which recognizes that the livelihood of all people
is structurally at risk at any moment and therefore they ought to have
access to welfare services(Note: As for universalism and interventionism in
social welfare, refer to Chang In-hyub(trans.) (1979), Industrial Society
and Social Welfare, Seoul: Daehan Textbook Co., Ltd., pp.119-121.), and to
abandon the current system in which the government intervenes and provides
welfare services only when family or market economy fails to provide people
with economic security and produces underprivileged or economically
vulnerable classes in mass.
The outstanding feature of modern social security laws is that they adopt
universalism. However, the problem when universalism is adopted is that the
welfare system is likely to remain in name only in the Third World
countries because it entails a tremendous budgetary responsibility on the
part of the government(Note: Lee Hong-jae (1989), "The Social Security and
Human Rights of the Handicapped," The Welfare Legislation for the
Handicapped, The Ministry of Justice, p.18.). Therefore welfare services
are bound to be constrained by the budgetary concerns.
Under such circumstances, Korea can adopt a such universalism in principle
to take the social welfare of every citizen into consideration, but in
reality it starts the programs with low-income women who suffer from both
poverty and sexual discrimination because the welfare program requires
enormous financial support from the state. Then gradually the government
expands the program to encompass every citizen. In other words, this study
recommends the adoption of active intervention or steady universalism(Note:
Ibid., p.19.). At the same time, for the women who are economically better
off, the government, by correcting the sexually discriminating environment,
offers social welfare programs that enhance their changes of social
participation and that enable their self-realization.
The need for women's welfare is rapidly rising and the implementation of
welfare services are gaining urgency as the pace of industrialization is
accelating. The fast and drastic change or development of the society now
affects not just a particular group of women but all women across the board
and more and more women are left vulnerable both financially and
emotionally. Women rather men are more desperately in need of social
welfare services, and it is inevitable that when we consider the changes
that are taking place, such as increased life-expectancy, shifts in
demographic structure resulting from it, reduction in both birth and infant
mortality rates, the acceleration of the aging of the population
(particularly the number of old women is increasing more rapidly), and the
sharp rise in the number of working married women. The change in the value
system, an increase in the divorce rate, and the creation of diversified
family types resulting from industrial accidents are also some elements
that make sexual discrimination and it deprives them of opportunities to
make it on their own. Therefore, the needs of women should command
immediate attention. In particular when the problems of old people and
poverty are addresses, women should be given precedence over men.
If we examine the history of women's welfare in Korea, we find that it has
not yet emerged from the intervention stage and the services under the
title of 'welfare of housewives and women'(Note: Prof. Chang So-young
criticized the term 'housewife' on the ground that "it is the product of
the anachronistic social practice of predominance of men over women and
debases women's status."(Chang So-young (1985), "The present situation and
task of welfare services for women," Social Welfare, Fall, Social Welfare
Council of Korea, p.68). The general definition of housewives' welfare by
Social Welfare Council of Korea is as follows. "The term "housewife' refers
to both wife and woman. Therefore in the framework of housewives's welfare,
unmarried women are not separated from married women and it is concerned
with overall welfare of general welfare of all women."(Social Welfare
Council of Korea (1977), Collections of Korean Social Welfare, p.74; Park
Song-kyu (1988), An Essay on Social Welfare Legislation, Mission for
Editing and Diffusing of Laws and Decrees, p.460.) are mainly directed at
the women in need of assistance such as household heads of low-income
families, single mothers, women of the streets, and runaways. Programs are
piecemeal and after-service type. Since the mid-1970s when Korea witnessed
sizable economic growth, the attention of the people turned to the
distribution of wealth in the society and to inequality among its members,
and these questions created tension between classes. The government,
therefore, sought to forge the policy(Note: Lee Hye-kyung (1990), "Social
Welfare Related Laws and Women," The 6the Spring Scholarship
Conference-Women and Law, Korean Association of Women's Studies, p.11.)
that could meet all the challenges created by the rapid change in society
while attempting to promote social development without interruption and the
balance between classes. Women's movements were gaining momentum here at
home and abroad and policy shift result, though they were fragmentary.
Prof. Sohn Eui-mock(Note: Sohn Eui-mock (1984), "A Brief History of
Housewives' Welfare Projects,' Social Welfare, Summer, Social Welfare
Council of Korea, p.33.) sums up the main feature of women' welfare during
this period as shifts in focus. Before, the focus of women' welfare policy
was on assisting needy women, but from this point on the policy takes an
aggressive turn and includes every woman as clients. He sees that the
programs are designed to help women realize their full potential. Some
programs are preventive measures or are for the cultivation of healthy and
sound home environments.
However, the current framework of social welfare policies is 'resolution
in the home first, social security next' and it is the reflection of
general expectation within policy making circles that the diversified
welfare demand in modern society be met primarily in the home. But this
understanding on the part of policy makers has the danger of transferring
the responsibility for social welfare from the government to the family.
when that happens, the burden of welfare activities will ultimately fall on
women. What it signifies in turn is that the 'welfare of the family' still
takes precedence to that of women in our society and such orientation in
welfare design is well demonstrated in the fact that the cause and
resolution of women's problems are approached and tacked as something
endemic to women rather than to grapple with from a structural perspective.
In spite of some marginal changes and improvements in welfare policies, we
see how deeply the ideology of patriarchy and the idea of intervention in
social welfare are rooted in the minds of the people and in society.
III. WOMEN'S WELFARE: INTERNATIONAL TREATIES AND TRENDS
The extent of social welfare and its institutions differ from country to
country on the basis of the socio-economic conditions of each country,
political system, and the basic understanding of social welfare.
Nonetheless, the ideal of social welfare that pronounces the protection of
every citizen's right to live has now emerged as a common international
norm beyond the boundaries of individual nations and the effort to realize
this ideal has been actively tried not only in the industrialized countries
but also in the countries of the Third World in various ways(Note: Some
important references on this are Robert R. Friedmann, Neil Gilbert and
Moshe Sherer (eds.) (1987), Modern Welfare States: A Comparative View of
Trends and Prospects, Great Britain: Wheatsheaf Books Ltd.; Stewart
Macpherson (1982), Social Policy in the Third World: The Social Dilemmas of
Underdevelopment, Great Britain: Wheatsheaf Books Ltd., etc.).
1. The World Declaration of Human Rights
The World Declaration of Human Rights adopted by the Third UN General
Assembly on December 10, 1948, is significant because it was the first
attempt to recognize as basic human rights the social welfare that had been
practised in various countries to all different degrees and contents. It
was also an attempt to establish an international ground for social welfare
and to enforce it internationally.
In particular, this declaration clearly articulates the equality of men
and women in social welfare and the rights of mothers and children to be
protected and supported. However, the question of equality between the
sexes in social welfare was not raised in earnest in this declaration
because what the declaration did was to lay the ground rules for social
welfare. Naturally, though, the issue of women's welfare was expressed in
abstract terms.
2. International Agreements on Human Rights
The effort to embody the principles spelled out in the World Declaration
of Human Rights were expressed in international agreements and protocols
adopted: "International Agreement on Economic, Social and Cultural
Rights"(Agreement A), "International Agreement on Civil and Political
Rights"(Agreement B), and "Protocol Adopted on Agreement B".
In each agreement there are specific provisions for women's welfare.
Article 9 of Agreement A, for instance, recognizes the right of every
citizen to receive social security. It demands the state to guarantee
sexual equality in the labor market including the practice of equal pay for
equal work (Art. 7, Agreement A). It specifies the maternity protection for
some time before and after parturition, and when the mother is working she
should be given either a paid maternity leave or a vacation attached with
comparable social security benefits (Clause 2, Art. 10 of Agreement A).
While Article 23 of Agreement B affirms the rights of families to be
protected by the society or state (Clause 1), it clearly states that the
government has the responsibility to draw measures that give equal rights
and duties to both parties of a married couple during their marriage and at
the time of divorce (Clause 4).
During the deliberations on the International Agreement on Human Rights, a
heated discussion was exchanged on the issues of sexual equality and
protection of women when the meeting turned on the deliberation of Clause
2, Article 10 of Agreement A, which deals with the duration of women
protection(Note: Yoon Hoo-jung & Shin In-ryung (1990), Legal Women's
Studies, Seoul: Ewha Womans University Press, pp.74-75.). Since then it has
been the basic position of the UN 1)that the duration of maternity
protection be limited to a brief period before and after parturition
because any special protection for women is likely to give rise to
discrimination against women and 2)that the UN disclaims the sexual
division of labor and the responsibility of child rearing be shared equally
between the men and the women.
In Korea these agreements were ratified on April 10, 1990. As of July 10,
1991, they will have the same force as domestic laws.
3. The ILO Treaty
The ILO(International Labor Organization) has been diligently trying to
formulate an internationally binding standard of social security by issuing
numerous recommendations and by the adoption of treaty.
As for women's welfare, the ILO in its treaty, recognized the sexual
division of labor in which the responsibilities for domestic work and child
rearing are attributed solely to women. The main feature of the treaty was
to provide working women with measures that allow them to keep both their
work and family. But this basic view of the ILO on women's welfare reached
a turning point in 1975 when the UN declared the world year of the women.
Since then it has shown changes in its understanding of women's
welfare(Note: Yoon Hoo-jung & Shin In-ryung (1990), op. cit., p.33.).
In 1975 when it adopted the 'Declaration on Equal Opportunities and Equal
Treatment of Working Women' and its Action Plan, the ILO finally emerged
from it hold on the sexual division of labor in which the domestic duties
and child-rearing are understood to be inherent roles of women. Since the
UN Convention on Elimination on Sexual Discrimination Against Women came
into effect in 1979, the ILO released the 'Recommendation on Equal
Opportunities and Equal Treatment of Workers Responsible for a Family' in
1981(no.165). In that recommendation the ILO made it clear that a family is
the shared responsibility between both men and women, and provided several
measures accordingly.
Since then, the new view of the ILO was further advanced, particularly in
its 1985 Report(Note: 島田とみ子 (1986),
"女性と社會保障の未來-ILO報告を讀んで-", 「婦人勞動」, No.11, pp.78-83:
This report was prepared through repeated discussions among 10 specialists
from Sweden, U.K., & U.S.A.) 'Toward the 21st Century-the Development of
Social Security.' In the area of social security, the report emphasized the
correction of unequal treatment between men and women based on the sexual
division of roles. The report demands the definite measures for women's
welfare and urges to recognize the domestic work as gainful employment and
grant wives rights to receive sparate pensions.
4. The UN Convention on the Elimination of Sexual Discrimination Against
Women
The UN Convention on the Elimination of Sexual Discrimination Against
Women was adopted in the UN in 1979 and it mainly deals with women's
welfare. But section 5 of Clause 1, Article 11, specifically recognizes the
equal rights between sexes to receive the same benefits in social security
(in retirement, unemployment compensation, disease, old age, disability
compensation, etc.). To guard against abuses when women get married or
become pregnant, the convention prescribes to establish social security
measures that provide support. While the convention reaffirms the principle
of coexistence between two ideas of 'equality' and 'protection' for women,
the concept of equality is understood to go beyond dismantling the
traditional division of roles between sexes and to include equally sharing
domestic obligations between sexes and social participation between the
sexes. But in the light of the socially ingrained practice of inequality,
the convention agreed to adopt the special measures that could expedite
real equality between sexes.
This convention is the very embodiment of all the legal principles of
sexual equality and it was on the 18th of December, 1984 that this
convention was ratified in Korea. As of January 26, 1985, it began to have
the same effect as domestic law.
5. The Women's Development Strategies Toward the Year 2000
Interest in the women's welfare transcends the national boundaries and
such interest resulted in the adoption of the UN Decade of Women's
Development(1976-1985). At the completion of the decade, the resolution
'Women's Development Strategy Toward the Yea 2000' made up of 327
paragraphs was adopted to pledge a new beginning.
IV. THE ANALYSIS OF THE LAWS AND REGULATIONS RELATED TO WOMEN'S WELFARE
1. The Systematic Organization of Women's Welfare Laws
A. Judiciary
The women's welfare laws in this study refers to the whole body of law
dealing with the welfare and status of women within the framework of social
security laws. The social security laws(Note: For the various definitions
of social welfare related law, cf. Lee Hye-kyung (1990), op.cit., p.607.)
in turn here are the laws that are designed to guarantee people's rights
and to provide true equality by intervening if necessary, in the
diversified spheres of individual life and in the distribution of wealth
and services on the part of the society or state while respecting the
freedom of each individual.
In this perspective the laws belonging to this category are divided into
the social security laws and the social security related laws.
The social security laws assume that accidents are intrinsic to modern
society because of structural institutional imperfections and include the
whole body of laws(Note: Kim Yoo-sung (1985), The Social Welfare Act,
Seoul: Dongsungsa, p.30, pp.66-67; Kim Yoo-sung & Lee Hong-jae (1985), The
Social Welfare Act, The Textbook of Korean Correspondence College, pp.2-3.)
that the state has promulgated to seek solutions to such accidents and to
provide for direct, institutionally built-in aid to guarantee the secure
livelihood to every citizen. These laws are a direct intervention of state
to embody the rights of citizens to live, not a mere intervention in the
contractual or financial realtionships between the individuals. In terms of
enforcement the laws are divided into social insurance laws, public aid
laws, and social service laws(Note: Clause 2, Article 34 of the
Constitution of Korea 'obliges social welfare of the people' and Article 2
of the law concerned with the social security in the meantime defines
social security to mean both social insurance and public aid. Therefore,
under the present legal system we understand the social security act is
differentiated from the social welfare laws. However, this classification
is too a narrow classification seen in classical literature and does not
fully express the institutional nature and characteristics of social
security laws. Thus in this study the social welfare(service) laws are
included in the social welfare law system and interpreted in the narrow
sense are included in the social welfare law system.).
Social insurance laws provide secure livelihood by directly paying the
cost of living allowances to the subscribers when their livelihood is
threatened with loss of their ability or opportunity to work(due to
sickness, injury, disability old age, etc.). The spirit of these laws is to
extend social support to those threatened with livelihood while stressing
the need of income redistribution. These laws lay monetary benefits to
their subscribers when the time comes from the funds they have contributed
to and they have borrowed the insurance technique in operation of the
services. The laws belonging to this category are the National Pension Act,
Medical Insurance Act, and the laws dealing with Public Officials and
Private School Teacher and Staff Medical Insurance Act, and Acts and
Regulations dealing with the prevention of the irreversible lung damage and
with the protection of the workers suffering from irreversibly damaged
lungs.
The whole body of Public Aid Laws make it possible for either the state or
a public body to intervene and ultimately provide minimum livelihood when a
citizen is unable to work and is thus without any means of support or is
face with a very low-income. The clients under the protection of these laws
are provided with livelihood allowances without any contribution on their
part and these laws are the most fundamental and direct legislation of the
rights of the people to live and exist. The Livelihood Protection Act and
Medical Protection Act are two examples of the Public Aid Laws.
The Social Service Laws were set up to help people overcome
livelihood-threatening obstacles that they may face in the course of every
life and to create a momentum for those threatened with livelihood to get
back into the mainstream of the society. The laws included in this category
provide, through personal assistance and facility services, non-monetary
benefits such as protection, counseling, guidance, treatment, and
rehabilitation to their clients. The examples of these laws are the
Maternity Welfare Act, Old-age Welfare Act, Child Welfare Act, and the
Handicapped Welfare Act.
Social security related laws are closely tied with the social security
laws and they include the Family Law, Tax Laws, Labor Relations Law, and
House Supply Law. Since the social security benefits and services are not
just limited to the individual client in need but extended to his or her
dependents, the Family Law has a role to play in determining the extent of
beneficiaries and the scope of service because it is the Family Law crucial
whether the client is married or divorce, if she or he has a family who can
provide support and because it is the Family Law that determines family
relations such as marriage, kinship, and inheritance.
Tax Acts, especially the Inheritance and Gift Tax Acts, have a significant
bearing on the social security laws because taxing inheritance and gifts is
one way of correcting the unfair practices of distributional relationships
in capitalist society where private ownership is the material basis of the
economy and thus wealth is unevenly distributed. Tax Acts function as a
tool of social policy.
The Labor Relations Law also has strong bearing on the social security
laws. First, the Labor Relations Law maker it possible for the state to
intervene between the labor and management and provide workers with the
life of health and minimum leisure as a way of guaranteeing the rights of
workers to live. Second, the labor conditions for workers are critical
variables in determining the contents and extent of the social security
allowances. Third, the ultimate goal of the social security laws is to
assist workers to become economically self-supporting and that is what the
Labor Relations Law is all about.
What distinguishes the social related laws from the social security laws
is the principle at work and the jurisdiction. Each individual law has its
own particular characteristics. Therefore, the social security related laws
are not themselves quite adequate to deal with the women's causes. The
issues of women's welfare and status ought to be organized into a separate
women's welfare related legislation in order to build an optimal legal
system for women.
Nevertheless, the superior or organic laws that determine the jurisdiction
of the women's welfare related legislation will be the Constitution, the
laws pertaining to social security, and social welfare service laws.
On the jurisdictional basis of the social security related laws, the
women's welfare related legislation too could be systemized. An outline is
presented in Table-1
(Table-1) The System of Women's Welfare Related Laws & Jurisdiction
---------------------------------------------------------------------------------------------
Legal System Key Jurisdiction of Women's Welfare Related Laws
---------------------------------------------------------------------------------------------
Organic Law The Constitution
Laws Related to Social Security
Social Welfare Service Law
---------------------------------------------------------------------------------------------
Social Insurance Law The National Pensions Act(Pension Laws of Public Officials
& Private Medical Insurance School Teachers Included)
Medical Insurance Act(Medical Insurance Acts of Public
Officials & Private School Teachers Included)
Industrial Injury Compensation Act
Social --------------------------------------------------------------------------------
Welfare Public Aid Laws The Livelihood Protection Act
Act Medical Insurance Act
--------------------------------------------------------------------------------
Mother-child Welfare Act
Mother-child Health Act
Social Welfare Child Welfare Act
(Service)Laws The Anti-prostitution Act
Old-age Welfare Act
The Handicapped Welfare Act
---------------------------------------------------------------------------------------------
The Civil Code Relations & Inheritance Law
--------------------------------------------------------------------------------
The Tax Laws The Inheritance Tax Law, Gift Tax Law, Income Tax Law, etc.
--------------------------------------------------------------------------------
Social Individual Work Related Laws(Labor Standard Act.
Security The Labor Related Gender Equal Employment Act. Employment Security and
Related Laws Promotion Act. Basic Vocational Training Act. and
Laws industrial Safety and Health Act, etc.) Collective Labor-
management Relations Law(Labor Union Act. Labor Dispute
Mediation Act. Labor-management Council etc.)
---------------------------------------------------------------------------------------------
B. The Systematic organization by applicable clients
The women's welfare related laws are systemized and summarized in Table-2
on the basis of the applicable clients of the laws(Note: According to the
nature of the problem, this study divides the recipients into women to be
protected, working women, ordinary women, and rural women, and laws
applicable to all women are classified under all applicable category, laws
applicable to specific groups of women under individually applicable law
category. But when a recipient is eligible for two different laws, she is
classified under the one that better expresses the characteristics and
purpose of her particular situation.). While this formulation very
persuasively highlights the interventionist nature of the current social
welfare related laws and vividly shows that the laws are repeatedly applied
to women belonging to specific classes, the standard of application is not
clear and when the clients are duplicated in these laws and that there's no
clear-cut system to sort them out.
(Table-2) The Systematic Organization by Applicabel Clients of the Women's
Welfare Related Laws
Univerally Clients Individual Related Laws
Related Laws
The Constitution Women to Female household heads Mother-child Welfare act
Laws related to be protected of low income family Livelihood Protection Act
Social Security Unweded mothers Medical Insurance Act
Social Welfare Women engaged in Child Welfare Act
Project Laws prostitution and
National Pensions exposed to prostitution The Anti-prostitution Act
Act Working
Medical Insurance women Working women in the formal Industrial Accident
Act sector Compensation Insurance
Mother-child working women in the informal Act Labor Related
Health Act sector Laws(Labor Standard Act,
Old-age Welfare Act Gender Equal Employment
the Handicapped Women at Act, Labor Union Act,
Welfare Act large full-time housewives etc.)
Family Law Tax Law single women
Act Related to Housing Women in
rural &
fishing village
2. The Consitutional Basis of the Women's Welfare Related Legislation and
Legal Principles
The Constitution of the Republic of Korea not only furnishes the
foundation to interpret all other statutes including the provisions in the
Constitution itself, but also points the direction for new legislation or
policy decision. In addition, it embodies the fundamental principle that
guides all including the public servants and all governmental bodies to
respect and protect it, and adopts the doctrine of the welfare state for
its citizens.
In a welfare state, which is founded on democratic principles which allows
personal freedom in the pursuit of political, economic, and social
activities, the state intervenes in order to provide its people with a
decent life by removing, through aggressive economic or social policies,
all contradictions arising from free competition, in order to embody social
justice or true equality by eliminating unemployment, disease, poverty
springing from the socio-economic structure of free competition(Note: Kim
Cheol-soo (1988), An Introduction to Consitutional Studies on Declaration,
Seoul: Parkyoungsa, pp.73-78; Koo Byung-sak (1989), The Legal Principles of
New Constitution, Seoul: Parkyoungsa, pp.173-174.).
The constitutional basis for the women's welfare related legislation is
found first in its adoption of welfare state doctrines as the organic
foundation of state. Then there are separate provisions to embody the
doctrines. For example, Clause 1, Art. 34 guarantees the right of the
people to live, and another provision(Art. 10) obliges the state to
guarantee the basic rights of the people to pursue human dignity, value,
and happiness. This provision is the embodiment of the ultimate norm of the
state and comprehensively prescribes the basic rights of the people. The
Constitution also secures equal rights(Art. 11). Furthermore, the
Constitution obliges the state to 'make efforts to' advance the welfare and
interests of women(Clause 2, Art. 34) and to 'protect maternity'(Clause 2,
Art. 36), and obliges to guarantee equality between men and women in
employment(Clause 4, Art.32) and in family relations(Clause 1, Art.36).
The basic right that embodies the rights of the nation to live can be
defined as the right of all people to demand that the state actively
intervene and secure all the necessary conditions for everyday human life,
and the provision in Clause 1 Article 34 of the Constitution, 'the right of
every citizen to lead decent life,' is the basis of all basic rights. The
right to have access to social security is a kind derivative right(Note:
There are several views on the provision of the right of the people to
exist (Art. 34) in the Constitution: some say it means the provision of
programs; for some it is an abstract right; for some it means the
materialization of right; and some believe it is the combination of both
abstract notion and materialization of right. This study believes it to
mean the materialization of right in the conviction that more aggressive
programs ought to be worked out for social security (For this point, confer
Kim Man-doo (1985), pp.213-219; Kim Yoo-sung & Lee Hong-jae (1989),
pp.38-40; Kim Cheol-soo (1988), pp.461-464; Koo Byung-sak (1989),
pp.529-533; Chang Hoon (1984), pp.74-77.) or a means to embody the basic
right to exist with dignity, and Clause 2 Article 34 of the Constitution
clearly and loudly obliges the state to provide the nation with social
security and social welfare.
The right of the nation to receive social security includes the right of
women to receive the same services as men and not to be discriminated
against in the dispensation of the social security benefits without any
other reason than gender. Here the sexual equality in employment and in
social welfare means relative and practical equality. Therefore the
provisions of maternity protection and provisional preferential treatment
of women established in the light of women's biological characteristics
such as pregnancy, parturition, and nursing are not considered
discriminating(Note: As for protection provisions for women and equality
provisions for men and women, confer Yoon Hoo-jung & Shin In-ryung (1990),
op.cit., pp.80-88; Kim Elim (1989), "A Study on the Gender Equal Employment
Act," The Labor Law, Vol.2, Labor Law Association of Korea, pp.125-133.).
However, the sexual division of labor based on the patriarchal way of
thinking and typical negative stereotyping of all women by isolating them
collectively from men are considered as sexual discrimination. Here we see
clearly that the attainment of equality between the sexes and the full
embodiment of social security system are inseparable(Note: 金城淸子 (1983),
「法女性學のすすめ」, Tokyo: 有斐閣, pp.146-166.). Moreover, the provision
for the protection of women presumes that women are solely responsible for
housework and child rearing while the provision of provisional preferential
treatment presumes women economically dependent on men. These provisions
should be re-examined and their propriety objectively assessed. The
contents of women's rights to receive social security benefits and services
is outlined in Table-3(Note: Kim Yoo-sung (1985), op.cit., p.73; Kim
Yoo-sung & Lee Hong-jae (1989), op.cit., p.40.).
(Table-3) Normative Structure of Women's Rights to Social Security
+----------------+
| Right to Live |
+----------------+ +-Right to Claim Social Insurance
+----------------+ +-----------+ |
| Right to Lead | +--|Substantive+-+-Right to Claim Public Aid
| Humanly Life | | |Rights | +-Right to Claim Social Welfare
+----------------+ | +-----------+ (service)
+-----------------+ | (Rights to Claim
| Right to Receive| | Social Security)
| Non-sexist |---+ +-Right to File and Dispute Social
| Social Security | | +------------+| Security
+-----------------+ +-| Procedural |+-Right to Participate in Administ-
+-----------------+ | Rights ++ ration of Social Security
| Equal Rights | +------------++-Right to Demand Social Security
+-----------------+ Legislation
3. The Main Feature and Problems of the Women's Welfare Related Legislation
What this study will examine among the social welfare related laws is
largely the social security laws; the National Pensions Act and Medical
Insurance Act belonging to social insurance laws, the Livelihood Protection
Act as one of the public aid laws, and the Mother-Child Welfare Act, the
Child Welfare Act, the Anti-Prostitution Act from the domain of social
service laws. Among the social security related laws, the Gender Equal
Employment Act will be examined. The Workers Accident Compensation
Insurance Act, Medical Insurance Act, Maternity Health Law, and the social
security related laws(such as Family Law, Tax Laws, Labor Relations Law)
will be dealt with in their due sections(Note: The detained examination of
the Family Law and the Tax Law will be dealt with in the Study on the
Revised Family Law and Its Revision Movement, a follow-up research project
of this study. However, in order to examine the contents of the social
security act, in the report of the research it was itemized into and stated
the purpose of characteristics of the legislative background and its
implementation, fundamental ideology of the act, the applicable recipients,
the major contents of allowances, provisions pertaining to women, delivery
system, but the given space of this article dictated to outline.).
A. The Social Security Act
1) The National Pensions Act
The National Pensions Act is a kind of social insurance law to reduce the
impact of old age, fatal diseases, or death. A pension is paid to the
subscribers from the fund they have contributed, and the purpose of the Act
is to secure a long-term income source to the people, to bring financial
stability and ultimately to promote the welfare of the people.
The National Pensions Act was promulgated on December 31, 1986, and
revised on March 31, 1989. The national pension system has been in full
force since January 1, 1988.
The fundamental intention of the act is to provide the nation with a
steady source of income against the accidents that are beyond the human
control in an industrialized society. The act adopts universalism in its
application and therefore every citizen between 18 and 60 years of age
residing in this country is eligible(Note: The people eligible for the
Public Officials' Pension Act, the Military Pension Act, and Private School
Teachers' Pension Act are excluded from the National Pensions Act(Art.6 of
the act.). In capitalist society it is inevitable to have an enormous
income gap between the classes of the very rich and the very poor, and the
pension act is a tool the state uses to redistribute the wealth of the
society and to transfer uneven income from one class of people to another.
The subscribers to the national pension are largely institutional
subscribers, continuous option subscribers, and the regional
subscribers(Art.7 of the Act). The worker and management of an
establishment employing more than 10 regular workers automatically become
the subscribers to the national pension. But the day laborers whose term of
engagement is less than three months, workers on a short term contracts.,
workers holding temporary positions, or working on a part-time basis are
all excluded from the automatic application cases. The pension premium of
the institutional subscribers are a shared responsibility between the
workers and the users, but the subscribers of continuous option plan or
regional plan are to pay the pension premiums fully on their own.
The allowance made by this act are the old age pension, the disability
pension, the survivor's pension, and a lump sum repayment. The equation
used in the calculation of the pension is: basic annuity allowance +
dependent annuity.
However, the National Pensions Act was built on the traditional assumption
that the husband has the responsibility to support his wife and children.
Therefore, for a woman to have an access to the benefits of the pension
system, she herself has to enter the labor force and become a subscriber,
or has to have a husband as her supporter. Such traditional assumption is
materialized in the application of the survivors' pension and the dependent
pension payment. In other words, the dependents allowance, an additional
allowance, is quite like a family allowance in nature, paid to the
dependents supported by the recipient when he(or she) purchases the right
to the pension(Note: The dependent pension allowance was adjusted by 31.2
percent of the national consumer price fluctuation rate based on the
benchmark of 1988 price and since April, 1990, the spouse is receiving
67,920 won per year and each parent and child 40,750 won a year.). The
eligible dependents calculated into the pension payment allowance are the
spouse(including common law spouses), children under 18 years of age or of
grade 2 and above disability(parents of spouse included). Because of such
characteristics of the dependent allowance, it is not granted when both the
man and wife are recipients(subscribers) it is not granted to working
couples(Clause 2, Art. 48 of the Act). The same holds true when the
eligible children or parents are subscribers of the pension. The payment of
dependent allowance terminates when the support by the recipient is
discontinued or when the spouse divorces the recipient. Here it is clearly
demonstrated that the dependent allowance under the current law is to
protect a specific type of family that consists of one male breadwinner,
his economically dependent spouse, their children, and parents, and that it
does not protect other types of families such as the families of divorcees,
of single persons, or of working couples.
The survivors' pension allowance in the meantime is paid to those whose
livelihood was dependent on the subscriber at the time of his or her death,
and it goes first to the spouse of the deceased, then the children under 18
or above grade 2 disability, and then the parents over 60 or above grade 2
disability(parents of spouse included). Next come the grandchildren under
18 or above grade 2 disability and finally the grandparents of spouse
included). Under the current act, the eligibility as a recipient differs on
the basis of gender. When the subscriber husband dies, his surviving wife
as a spouse receives the survivor's pension without any pre-condition. But
when the husband is survived by the subscriber wife, there are conditions
for him to become the recipient. He has to be either over 60 years of age
or above grade 2 disability to be eligible to the pension. However, when
the recipient of the survivor's pension remarries, the title to the pension
is terminated. When the surviving wife under 50 years of age separates
herself from her children or sets up a separate household after receiving
the pension for more than 5 years, the allowance is temporarily suspended
until she reaches 50. And when a surviving daughter or a granddaughter gets
married, she loses her title to the pension(No.4, Clause 1, Art. 65) is
eradicated. All these regulations regarding the payment of the survivor's
pension have been devised on the assumption that first men are economically
self-supporting until the age of 59 while women as unpaid home workers are
considered economically incompetent to support themselves, even if a woman
is able to support herself, her ability to work only until the age of 49,
is presumed. The second assumption at work here is the patriarchal view of
marriage in which men are the breadwinners and women are the responsibility
of breadwinners. Therefore, when a woman marries or remarries, she becomes
the charge of the breadwinner(husband) and is no longer in need of
survivor's pension payment. But, when a man marries, he is understood to
have one more mouth to feed and his title to the survivors' pension
remains. Third, under the current rules of the pension when the surviving
spouse is the husband, or retains the eligibility to these pensions. But,
the contribution of the other spouse, the wife, (her share as home worker
in the marriage, for instance) is not taken into account(Note: The U.S.
Supreme Court ruling since 1975 has been that more favorable social
security payment provisions toward the surviving wife than toward the
surviving husband by the Social Security Act violates the right of the
people to be equal on the ground that these provisions are the embodiment
of the old-fashioned stereotype notion that women's place is in the home
and in raising the children rather than in consideration of women's shaky
economic position in the society (For further reference on Supreme Court
rulings confer Yoon Hoo-jung & Shin In-ryung (1990), op. cit.,
pp.281-284.)).
This traditional idea of family support is unfortunately alive and well
and again reflected in the National Pension Administration Rules, so that
in the Recognized Family Support Line-up, the man is designated to be the
first in line of family support. The current Family Law too in principle
imposes on the husband the responsibility to meet the cost of living for
both himself and his wife(Art. 833).
(Table-9) The Classification of Day Care Facilities
--------------------------------------------------------------------------
Classification Name Founder Founding Size
Procedure
--------------------------------------------------------------------------
Facility House of State, Local Autono- Autorization More than
Care Children mous Entities, Social 30 Regular
Welfare Corporations, Children
Juridical Foundations Nurtured &
Educated
--------------------------------------------------------------------------
Home Care Play Room Individuals, Organizat- Declaration Between 5
ions | | |