Why Social Security Benefit Rights Are Fragile in Korea: Protection From Assignment and Seizure, Adverse Changes, Limits and Waiver

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■ Why Social Security Benefit Rights Are Fragile in Korea: Protection From Assignment and Seizure, Adverse Changes, Limits and Waiver — Overview

A 2-page Korean social welfare law paper on the right to receive social security benefits. It explains why the right is often called weak, from program-clause and reflex-benefit views to administrative discretion, then lists the statutory protections: bans on assignment, collateral, seizure and set-off, tax exemptions and the ban on adverse changes, followed by limits, waiver, sanctions for fraud and remedies, and the question of foreign residents.

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■ Why Social Security Benefit Rights Are Fragile in Korea: Protection From Assignment and Seizure, Adverse Changes, Limits and Waiver — Excerpt from the original document (English translation)

One can obtain a loan from the National Pension Service or the Korea Workers' Compensation and Welfare Service using the "right to receive" pension benefits as collateral, but otherwise the right cannot be transferred, offered as security and so on.

Since the purpose is to lead a minimum life through the right to benefits, the imposition of public charges and the like on it is prohibited.

After benefits have been decided, it must be ensured that no disadvantage is imposed without a justifiable reason.

The right to benefits can be waived by written notice to the agency, but it cannot be waived if the waiver would harm others. However, the waiver can be revoked.

Legal sanctions apply where someone became a beneficiary for private gain, abused the right to benefits, received double benefits, or suffered harm from a tort by a third party.

Social welfare law provides that "a citizen whose rights or interests have been infringed by receiving an unjust disposition or by failing to receive a necessary disposition may file a request for adjudication or an administrative suit under the Administrative Appeals Act or the Administrative Litigation Act," so there is a rights-relief function allowing relief when the right to benefits is infringed; but since Korea is a latecomer as a social security state, there are still many people behind the scenes of society who do not receive sufficient social security from the state or cannot enjoy a decent human life.

For reference, the Livelihood Protection Act mentioned in the material was replaced from October 2000 when the National Basic Living Security Act was enacted in 1999. The prohibition on transfer and seizure of the right to benefits is in Article 12 of the Framework Act on Social Security, restriction and suspension in Article 13, and waiver in Article 14; the prohibition on unfavorable changes to benefits and the prohibition on seizure are in Articles 34 and 35 of the National Basic Living Security Act. For foreigners, Article 8 of the Framework Act on Social Security makes reciprocity the principle and defers to the relevant statutes, so check the current provisions and Enforcement Decrees before using them in an assignment.

■ Why Social Security Benefit Rights Are Fragile in Korea: Protection From Assignment and Seizure, Adverse Changes, Limits and Waiver — Contents and key concepts

Why is the right to welfare benefits considered weak in Korea?

✦ At a glance

  • The fragility of social security benefit rights
  • Structure: weakness → protections → limits and waiver
  • Useful for social welfare law exams

☰ What the paper covers

  1. Meaning of the right
  2. Why it is considered weak
  3. Protections against seizure
  4. Limits and waiver
  5. Remedies and foreign residents

✎ Benefit rights in Korea and the U.S.

Korea's Framework Act on Social Security bars assigning, pledging or seizing benefit rights (art. 12) and allows limits only as far as necessary (art. 13).

U.S. law has a similar shield: 42 U.S.C. 407 protects Social Security benefits from assignment and most garnishment, and Goldberg v. Kelly (1970) required a hearing before welfare benefits are cut off.

Note: the paper itself is written in Korean and discusses Korean law. This page is general study information, not legal advice.

Related wiki: Independent Contractor vs. Employee

Related wiki: Social Security Benefits

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