An Analysis on Underage Eligibility Restrictions for Licenses
I. Background and Purpose of Research
▶ Background and Purpose of Research
○ While amendments in the Public Official Election Act and the Political Parties Act are made to further expand participation of minors, most of laws regulating licensure still consider being below the legal age of majority as grounds for disqualification, thus arise the needs for review of validity of such regulations.
○ Goal of this research is to review laws setting eligibility restrictions for minors to lead ways to remove underage from satisfying the grounds for disqualification.
▶ Scope and Method of Resesarch
○ Having National Qualification as the object, this research involves laws placing underage as disqualification. Literary review on laws and legal documentation is the main method of the research.
▶ Analysis of the Structure of National Qualification Law System
○ Framework Act on Qualification coordinates all national qualifications while National Technical Qualifications Act sets up details on technical qualifications. Separate laws formulate rules for qualification suitable for their purposes respectively.
○ Typical bases for disqualification are legal incompetency, bankruptcy, criminal conviction, administrative adjudication, or having a representative who is ineligible. Each law also adds additional grounds fitting for the nature or particularities of the qualification in the law.
▶ Survey and Analysis of Laws with Underage Eligibility Restrictions
○ Number of laws excluding minors from obtaining licenses to perform specific work (Licensure Disqualification) and laws prohibiting minors from running certain businesses (Business Disqualification) are 142 total.
○ Minors, along with Incompetent Person and Limited Incompetent Person were considered as legal incompetent before the guardianship system was introduced in the Civil Law. With the guardianship system, Incompetent Person and Limited Incompetent Person were simply replaced with Person under Adult Guardianship and Person under Limited Guardianship, respectively, thus Person under Adult Guardianship and Person under Limited Guardianship are most commonly enumerated disqualification factors along with Person under the Age of Majority.
○ However, the newly introduced guardianship system revisited legal incompetency of Person under Adult Guardianship and Person under Limited Guardianship, resulted in removing one or both from disqualification factor, while minors remain as ineligibility simply because of the age.
▶ Review of the Adequacy of the Regulation
○ Considering minors as incompetent is based on the purpose of protecting them from legal liability, therefore their being disqualified is not based on their actual ability to perform the duty called for the qualification. Whereas, Person under Adult Guardianship and Person under Limited Guardianship are determined qualified based on their actual ability to perform.
○ If Person under Limited Guardianship is removed from the list of the disqualification factors because the legal ability of the Person under Limited Guardianship to perform the duties required for the qualification is carefully assessed and acknowledged, review of the ability of minor to perform the same must be also be conducted to determine whether minors should stay on the list of the disqualification factors. Without such scrutiny on the merits of the ability, listing minors as ineligible is deemed excessive.
○Removing Person under Limited Guardianship from disqualification factors after inspecting his/her legal ability while listing minors as disqualification factors even without analyzing their ability to perform contradicts equity.
▶ Direction to Improve for Underage Eligibility Restriction
○ Assessment and Inspection of individual minors under separate laws by revisiting the Legal Incompetency Doctrine should be the starting point, while keeping in mind that protection of the minors should also be carefully considered whenever possibilities of threat to the self or to the others exist or when the minor may be subject to criminal penalty.
○ Administering tests to prove one’s ability to perform the tasks required for the licensure may be considered as an alternative to the Doctrine of Legal Incompetency; however, possibilities of threat to self or to others and protection of the minor from criminal penalty must still stay.
○ Easing regulations for minors, assuring freedom of vocational choice, and laying legal foundation for minors’ social advancement.