25. Case on Criminal Punishment on Those Who Violate Their Obligation Not to Operate a Motel

[23-2(B) KCCR 1, 2010Hun-Ba384, October 25, 2011]

The Constitutional Court unanimously held the part of 'a motel' of Article 6 Section 1 Item 13 of the School Health Act referred in Article 19 of the same Act in connection with the part of 'middle schools' of Article 2 of the Elementary and Secondary Education Act, is not against the Constitution because it neither infringes on the petitioner's freedom to perform his occupation and his property right nor violates the rule of proportionality between punishment and reponsibility.

Background of the Case

Petitioner was charged with operating a motel in the environmental sanitation and cleanup zone of a school and while the case was pending, the petitioner moved the court to file a request with the Constitutional Court for a constitutional review of the statute, the part of 'a motel' of Article 6 Section 1 Item 13 of the School Health Act referred in Article 19 of the same Act in connection with the part of 'middle schools' of Article 2 of the Elementary and Secondary Education Act. Upon the Court's dismissal,, on October 4, 2010, the petitioner filed this constitutional complaint.

Provision at Issue

School Health Act (revised by Act No.8678 on December 14, 2007)

Article 19 (Penal Provision)

Any person who commits any act or builds facilities prohibited in the environmental sanitation and cleanup zone of the school in violation of Article 6 (1) shall be punished by imprisonment for not more than two years or by a fine not exceeding 20 million won.

Summary of Decision

The Court unanimously held that the part of 'a motel' of Article 6 Section 1 Item 13 of the School Health Act referred in Article 19 of the same Act in connection with the part of 'middle schools' of Article 2 of the Elementary and Secondary Education Act (hereinafter, the "Instant Provision") is not against the Constitution based on the reasons below.

1. Whether the Instant Provision infringes on the petitioner's freedom to perform his occupation or the right to property

The purpose of the Instant Provision is to protect middle school students from various harmful environments created by a motel andthis legislative purpose is legitimate. The prohibition of motel operationin an environmental sanitation and cleanup zone of a school is an effective and proper means to achieve that legislative purpose.

Also, the Instant Provision is compatible with the rule of the least restriction considering the followings: operation of a motel can be permitted if, through the review of the Committee for Environmental Sanitation and Cleanup of School, it is recognized that such operation does not have a bad influence on the education and health and hygiene at school; the building owner can utilize his or her building for uses other than motel operation, and therefore a private use suitable for the function of the building is still available; and the respective five-year grace periods are to be given twice for the motel owners violating the Instant Provision to minimize the infringement on their property rights and allow time to close the motel business. Moreover, the Instant Provision strikes a balance between the legal interests concerned since the negative effects on middle school education caused by allowing motel operation is likely to be much larger than the disadvantages from the prohibition of motel operation to be suffered by the building owners or the motel operators. Therefore, the Instant Provision does not violate the freedom to conduct one's occupation and property right.

2. Whether the Instant Provision violates the rule of proportionality between punishment and responsibility

Given the nature of a motel as a harmful environment to the students, the legislation of the Instant Provision does not appear to be arbitrary or go beyond the scope of the legislature's discretion when it chose a criminal penalty, rather than an administrative measure or administrative punishment, considering that the legislative purpose could not ultimately be achieved only by the latter. The Instant Provision, furthermore, allows judges to exercise broad discretion in determining the punishment because it provides them with the statutory penalty options of imprisonment and fine but does not set a lower limit except for putting the maximum penalties-imprisonment for not more than two years or a fine not exceeding 20 million won. Thus, it is difficult to say that the Instant Provision is an excessively severe punishment in light of the legislative intent stated above. The Instant Provision, therefore, does not violate the rule of proportionality that the punishments should be proportional to the crime committed.