Visually disabled persons' monopoly as massagers

[18-1(B) KCCR 112, 2003Hun-Ma715 and 2006Hun-Ma

(consolidated), May 25, 2006]

In this case, the Constitutional Court has issued a decision that "Municipal Regulation on Massager" Article 3 Paragraph 1 Subparagraphs 1, 2(hereinafter referred to as the "the Regulation of this case"), providing that only the visually disabled persons' qualification as a massager shall be admitted, violates the principle of statutory reservation, prohibition of excessive restriction, and freedom of occupation of the people who are not visually disabled, therefore, it is unconstitutional.

Background of the Case

The Regulation of this case provides that only a certain range of the visually disabled persons' qualification as a massager shall be admitted. In this case, the complaints received the relevant education from the institution which teaches the method of giving the sports massage and they were willing to work at the sports massage business, but they could never receive the qualification as a massager due to the Regulation of this case. So they argued that it violates the fundamental rights of people, who are not visually disabled, such as the right to choose occupation, and they filed consitutional complaint.

Summary of the Decision

The Constitutional Court, in 7 : 1 decision, held the Regulation of this case unconstitutional. The summary of the reasoning is same as it follows:

1. Majority Opinion of Seven Justices

The Regulation of this case provides that ordinary persons who are not visually disabled cannot be qualified as a massager, by placing limit upon a qualified person as a massager to a person who cannot see and who meets a certain range of conditions, that is, establishing so-called 'standard of excluding the non-visually disabled persons'. This completely limits the freedom to choose the

occupation as a massager of ordinary persons who are not visually disabled and it violates the Constitution because of the following reason:

In spite of fact that the standard of excluding the non-visually disabled persons in admitting the qualification as a massager is the important and essential factor related to limiting the fundamental rights, since the Regulation of this case being unclear in its standard and scope of delegation or excessively comprehensive provision or out of the scope of delegation by enabling statue, the Medical Service Act Article 61 Paragraph 4, is clearly out of limit of delegated rule-making and it is established as a reason to limit the fundamental rights, therefore, it being obviously out of limit of delegated rule-making violates principle of statutory reservation.

The standard of excluding the non-visually disabled persons, in purpose of protecting the visually disabled persons and ensuring them to make livings, even has legitimate legislative purpose, but it completely prevents ordinary persons from entering into the specific area of occupation, so it possibly could not be the reasonable and proper means, concerning only the certain number of registered visually disabled persons among the whole group of the visually disabled persons but excessively violating the rest of the disabled persons' and further freedom of occupation of the ordinary persons, therefore, it violates the rule of the least restrictive means in infringement on fundamental rights and, comparing public interest, which it is meant to accomplish, such as ensuring the visually disabled persons to make livings, the degree of infringement on fundamental rights is excessively large, therefore, it fails to have balancing of interest and violatestherule against excessive restriction.

2. Dissenting Opinion of One Justice

As I had clarified in opinion for constitutionality of the Constitutional Court's Decision(15-1 KCCR 663, 669-674, 2002Hun-Ka16, June 26, 2003), the Medical Act Article 61 Paragraph 4 surely does not violate principle of statutory reservation or principle of the rule against blanket delegation and since the Regulation of this case provides the delegated provision with the above legal provision providing the specific range, it does not violate principle of statutory reservation.

In admitting the qualification as a massager, the standard of excluding the non-visually disabled persons based on the national protection and welfare policy, and etc. of physically disabled persons, cited in Article 34 Paragraph 5 of the Constitution is in

order to protect the visually disabled persons who are in disadvantageous circumstance for the matter of employment compared to the ordinary persons and, ensure them to make livings, therefore, legitimacy of its legislative purpose is admitted and considering the bodily condition of the visually disabled persons and their specialized skill, it is necessary and proper mean to admit their qualification as massager exclusively. Even the ordinary persons are excluded from the subject of admitting the qualification as a massager, they can not only choose the other occupation and make livings but also go through training and exams to become a physical therapist and work as a massager if they wish to work in the field, therefore, it does not violate the rule of least restrictive means. Above all things, public interest ensuring the visually disabled persons to have a humane life absolutely takes precedence over protecting freedom of occupation of the ordinary persons as much as those two even cannot be compared, therefore, for the purpose of public interest to ensure the visually disabled persons to make livings, restricting freedom of occupation of the non-visually disabled persons does not violate the balancing of interest.