[영문판례]
Public Health Promotion Act Designating Internet Café as Non-smoking Zone
[25-1 KCCR 570, 2011Hun-Ma315·509, 2012Hun-Ma386(consolidated), June 27, 2013]
In this case, the Constitutional Court held that the part “business providing internet computer game facilities” of the Article 9 Section 4 Item 23 of the Public Health Promotion Act(hereinafter, the “Act”), which mandates the entire area of an Internet Café(or PC room) to be smoke free; Article 34 Section 1 Item 2 of the Act in relation to the part “business providing internet computer game facilities” in the Article 9 Section 4 Item 24, which imposes penalty for violation of the provision; and the part of Section 1 of the Addenda of the Act stipulating that “the revised provision of Article 9 Section 4 Item 23 of the Act will be effective after two years from the day of its promulgation” do not infringe upon the complainants' freedom of occupation and property rights.
Background of the Case
Complainants are the owners of game centers providing internet computer games (hereinafter, “Internet Café”) and had been running business with both smoking and non smoking sections. After the revision of the Act on June 7, 2011, however, they were required to designate the entire area of an Internet Café to be smoke free and the Act imposed penalty upon violation of this obligation. These provisions were scheduled to be effective after two years from the day of promulgation. The complainants filed this constitutional complaint arguing that Article 9 Section 4 Item 23 and Article 24 Section1 Item 1 of the Act and Article 1 of the Addenda infringe upon their freedom of occupation and property right.
Provisions at Issue
The subject of review are whether the part “business providing internet computer game facilities” of Article 9 Section 4 Item 23 (hereinafter, the ‘Non-smoking Area Provision’) of the Public Health Promotion Act (revised as Act No. 10781, June 7, 2011); the part “business providing internet computer game facilities” of Article 9 Section 4 Item 23 and Item 24 (hereinafter the ‘Fine Provision’) and the part of Section 1 of the Addenda of the Act stipulating that “the revised provision of Article 9 Section 4 Item 23 of the Act will be effective after two years from the day of its promulgation” (hereinafter, the ‘Supplementary Provision’) infringe upon the complainants' fundamental rights. The provisions at issue (underlined) are as follows:
Public Health Promotion Act (revised as Act No. 10781, June 7, 2011)
Article 9 (Measures for non-smoking) Owners, occupants, or managers of the following public facilities shall wholly designate such facilities as a non-smoking area, or divide such facilities as non-smoking areas and smoking areas which are to be designated as such. In such cases, owners, occupants, or managers of facilities whose area is designated as a smoking area shall comply with the standards for establishment prescribed by Ordinance of the Ministry of Health and Welfare, including installing ventilation facilities and partitions in such smoking areas.
23.Juvenile game providing business, general game providing business,business providing internet computer game facilitiesand combined distribution and game providing business defined in the Game Industry Promotion Act
Article 34(Fines for Negligence) A person falling under any of the following subparagraphs shall be punished by a fine for negligence of three million won or less:
2. A person who fails to designate the whole area of facilities used by the public as a non-smoking area, or categorize and designate the
facilities concerned as smoking and non-smoking areas, in violation of the former part of Article 9 Section 4.
Addenda
Article 1 (enforcement date) This Act shall enter into force six months after the date of its promulgation. Provided, that Article 8 Section 3; Article 9 Section 4(excluding Item 23) and Section 7; Article9-2; Article 9-3; Article 31 Section 1 and 2; Article 34 Section 1 Item 2 and 3; and Article 34 Section 2 Item 2 shall enter into force one year and six months after its promulgation andArticle 9 Section 4 Item 23 shall enter into force two years after its promulgation.
Summary of the Decision
1. Fine Provision
The Fine Provision imposing fines is applied only when the obligation provision (Non-smoking Area Provision) is violated as a prerequisite. Also the complainants do not assert its unconstitutionality but simply argue that the Fine Provision should also be held unconstitutional because the Non-smoking Area Provision, as a basis of imposing fines, is unconstitutional. Therefore, the Fine Provision is not justiciable for failing to fulfill the directness element.
2.Constitutionality of the Non-smoking Area Provision and the Supplementary Provision
(1) Freedom to conduct one's occupation
(a)Whether the provisions violate the principle against excessive restriction
The legislative purposes of the Non-smoking Area Provision are to protect non-smokers including juveniles from being forced to breathe second hand smoke, to protect non-smokers' rights and thereby to promote public heath, through designating the whole area of public
facilities like Internet Cafés as smoking free zones. Such purposes are legitimate and designating the Internet Cafe as a complete smoke free zone is an effective and appropriate means to achieve the legislative purposes.
Simply dividing smoking and non smoking areas by installing partitions or screens in between is insufficient to effectively solve the second hand smoking problem in public facilities like Internet Cafes where many people visit and stay and to promote public health. The most effective way is to designate the whole area as a non-smoking zone, thereby completely blocking non smokers from being forced to breathe second hand smoke. It is hard to predicate that there exist less restrictive or equally effective alternatives of restricting freedom of occupation other than designating the whole area of internet café as a non smoking zone. Therefore, the Non-smoking Area Provision satisfies the principle of least restriction. Moreover, as the Provision does not absolutely prohibit people from running the internet café business itself but places restriction on the way to conduct such business, it cannot be regarded as overly limiting complainants' freedom to conduct their occupation. In contrast, the public interests to protect non smokers from being forced to breathe second hand smoke and to promote public heath are very important. Therefore, the Non-smoking Area Provision strikes a balance between legal interests.
(b) Whether the provisions fails to protect public confidence in law
Given the circumstances, complainants had reasonable notice to expect that the co-existence of smoking and non-smoking areas would be temporary and that a complete smoking ban in Internet Café would be implemented in the near future. Also, even after an Internet Café is designated as a smoke free zone, the existing facilities may still be fully or partially used through renovation or interior changes. Therefore, the complainants' confidence in law is not the kind of interest that requires an absolute protection regardless of amendments in law, and the infringement on the interest does not seem significant. Also, the
Supplementary Provision in this case provides a two year grace period during which the complainants can prepare for changes. Neither does the two year period seem too short for the complainants to accommodate to the changes.
(c)Therefore, the Non-smoking Area Provision and the SupplementaryProvision in this case do not infringe on the complainants' freedom to conduct occupation, in violation of the principle against excessive restriction or the principle of protection of confidence in law.
(2) Whether the Non-smoking Area Provision infringes upon the right to property
Implementation of the Non-smoking Area Provision may cause possible decrease or loss in the complainants' business profits as less customers who smoke cigarettes are expected to visit Internet Cafes. But this is merely conjecture about the damage to the future interest or possible profit, which cannot be regarded as infringement on the constitutionally protected property right. Also, as it is clear that the Non-smoking Area Provision does not mean to force the complainants to demolish existing facilities or modify the interior design of their Internet Cafes, the complainants' right to the facilities is not infringed. Therefore, although the complainants may be required to demolish or modify facilities for the existing smoking section due to the entire smoking ban, the limitation imposed on the property right is merely indirect and a non legal disadvantage of the Provision. Therefore, the Non-smoking Area Provision does not infringe the complainants' right to property.