Internet Café (PC-Bang) in the Vicinity of School Case

[20-1(A) KCCR 554, 2006Hun-Ba60·61 (consolidated), April 24, 2008]

In this case, the Constitutional Court decided that the School Health Act, which prohibits "the acts and facilities harmful to the public morals and customs as prescribed by the Presidential Decree" within the school environmental sanitation and cleanup zone and penalizes offenders of the Act, neither breaches the principle of legality (the principlenulla poena,sine lege) and limitation of delegation of legislation nor infringes the occupational freedom of the petitioners, thus conforms to the Constitution.

Background of the Case

The petitioners, after being notified of the court's summary order (in fines) for violating the old School Health Act (hereinafter the "SHA") on the grounds that the PC-bang or internet cafes operated under their names are located in the school environmental sanitation and cleanup zone designated by the SHA, filed a lawsuit with the court.

With the above suit pending, the petitioners filed a motion to request for a constitutional review of Article 19 (hereinafter the "Punitive Provision") and Article 6 Section 1 Item 15 (hereinafter the "Prohibitive Provision") of the Act which was denied and then filed this constitutional complaint.

Summary of Decision

The Constitutional Court, in an opinion of 7 to 2, ruled the Prohibitive Provision and Punitive Provision constitutional.

1. Majority Opinion

A."The act and facility harmful to the public morals and customs" can be interpreted specifically as the act and facility having negative impacts on school health and sanitation and educational environment, including those which encourage students with weak sensibility and self-discipline to turn anti-social, unethical or neglect study by

indulging in speculative acts or entertainment as well as sales activities, the facility itself or details of the sales which cause sexual curiosities or encourage or spread violence or unethical acts.

In that sense, it can be said that a person with sound common sense and general legal mind could have fully predicted what is banned under the Prohibitive Provision by the conditions of "the act and facility harmful to the public morals and customs", which therefore is difficult to be viewed as violating the principle of legality or clarity.

B.The scope of "the act and facility harmful to the public morals and customs" delegated under the Presidential Decree is: the act and facility harming the public morals and customs whose extent of negative effects on school health and sanitation and educational environment is similar to those of the act and facility specifically enumerated in Article 6 Section 1 of the SHA. In this vein, it is difficult to see that a general person with sound common knowledge cannot predict the scope of "the act and facility harmful to the public morals and customs" to be prohibited by the Prohibitive Provision under the Presidential Decree. Therefore, the Prohibitive Provision cannot be viewed as violating Article 75 of the Constitution which prohibits comprehensive delegation.

C.The Prohibitive Provision and Punitive Provision are designed to designate a school environmental sanitation and cleanup zone to culture sound and harmonious character in juveniles and nurture healthy students, for which reason the provisions have legitimate purpose. In fact, banning the act and facility harmful to school health and sanitation and educational environment within the school environmental sanitation and cleanup zone is an effective and appropriate way to achieving such a legislative purpose.

The restriction on vocational achievement is applied only to within 200 meters from school parameters that falls under the school cleanup zone under Article 5 Section 1 of the SHA, and the act and facility recognized as not harmful to study and school health sanitation within a certain range of school cleanup zone (between 50 meters to 200 meters from school parameters) may be permitted under Article 6

Section 1 of the SHA. In that sense, the restriction on freedom of vocational achievement under the Prohibitive Provision and Punitive Provision is not excessive in fulfilling their legislative purpose.

Furthermore, the private interest infringed upon by the Prohibitive Provision and Punitive Provision is equivalent to the disadvantage derived from banning the act and facility harmful to school health and sanitation and educational environment within the school environmental sanitation and cleanup zone, and the public interest pursued by the prohibitive provision and punitive provision is the sound nurturing of students and streamlining of school education. It is hard to see that the private interest restricted by the Prohibitive Provision and Punitive Provision outweighs the public interest pursued by the same provisions.

Consequently, the Prohibitive Provision and Punitive Provision are not in violation of the Constitution for breaching the freedom of vocational achievement.

2. Dissenting Opinion of two Justices

A."Public morals and customs" in general is accounted for as "decent public ethos and manners" which, in prescriptive meaning, can be perceived as "the minimum moral law required to be observed and preserved by all the public". Since the specifics thereof inevitably vary greatly with individual values, ethics and circumstances, however, the concept is very abstract, vague or extensive in character. Therefore, the scope of "the act and facility harmful to the public morals and customs" specified in the prohibitive provision is hard to predict, eventually violating the principle of clarity.

B.As seen from above that the scope of "the act and facility harmful to the public morals and customs" is unclear, which act or facility may be prescribed by the Presidential Decree as such is also extremely difficult to predict. Therefore, "the act and facility harmful to the public morals and customs" of the Prohibitive Provision is in nonconformity with the limitation of delegated legislation defined in Article 75 of the Constitution.

C.In that case, "the act and facility harmful to the public morals and customs" of the Prohibitive Provision and the portion of the Punitive Provision in relation to the Prohibitive Provision violate the principle of legality and clarity and limitation of delegation of legislation, and thus are incompatible with the Constitution.

Related Decision

In line with the above decision, the Constitutional Court declared the constitutional case 2004Hun-Ba92 on the same issue but concerning the provisions of the old School Health Act and case 2006Hun-Ba83·84·89·93,2007Hun-Ba7 (consolidated) specifically focusing on issues of the limitation of delegation legislation and occupational freedom.