Pharmacists' Sanitary GarmentsCase

(12-2 KCCR 37, 99Hun-Ka15, July 20, 2000)

In this case, the Constitutional Court invalidated the related provisions of the Pharmacist Act that prescribed a penalty of fine forthe pharmacist's failure to comply with the regulation concerning thematters necessary for the operation of the pharmacy in the Decreeof the Health and Welfare Ministry on the ground that the statutory provision violates the rule against blanket delegation and the principle ofnulla poena sine lege.

A. Background of the Case

Article 19(4) of the Pharmacist Act states that a pharmacist operating a pharmacy shall comply with the Decree of the Health andWelfare Ministry in those matters necessary for the operation. TheAdministrative Rule of the Pharmacist Act, a decree of the Ministryof Health and Welfare, requires that pharmacists wear white sanitarygarments and a name badge. Article 77[1] of the Pharmacist Actpunishes the violation of such provision with a fine of up to twomillion Korean won.

A, the pharmacist operating a pharmacist, did not wear the whitesanitary garment and the name badge while selling medicine, andwas indicted. The ordinary courtsua sponterequested constitutionalreview of Article 77[1] as applied to Article 19(4).

B. Summary of the Decision

The Constitutional Court found the statutory provision unconstitutional in the following unanimous decision:

The Constitution authorizes lower-level regulations only for thosematters delegated to such regulation in statute with concretely defined scope. 'Concretely defined scope' means that the content,scope, and other basic matters to be prescribed by lower rules mustbe determined concretely and clearly in the statute so that anyonecan predict from the statue itself the overall content of the lowerrules. Especially, the delegation of punitive rules and regulations isnot desirable in light of the principle ofnulla poena sine lege, thatof due process, and the constitutional ideology of the precedence ofbasic rights, and therefore the prerequisites to and the scope of suchdelegation shall be applied there more strictly. Delegation of punitive laws should be limited only to exceptional situations where thereis urgent need for such delegation or the circumstances that do notallow detailed definitions in statutes. Even when so delegated, thestatutes must define concretely the elements of the crimes so that the punished conduct can be predicted, and state clearly the types,limit and scope of punishment.

This provision does not define any more concretely 'the mattersnecessary for the operation of a pharmacy' or narrows the scopethereof when the phrase constitutes an element of the punishment.It overbroadly delegates the entire contents to the lower rule, theDecree of the Ministry of Health and Welfare, and does not allowany concrete prediction as the content and scope of 'operating apharmacy.' Also, there is no urgent necessity that requires thosematters to be delegated to ministerial decrees or does not allowdetailed definitions in statutes.

Therefore, this statutory provision does not allow pharmaciststo predict the content and scope of the matters to comply with and leaves room for arbitrary administrative rule-making by the Administration. It violates the rule against blanket delegation in Articles75 and 95 and the requirement of clarity of punitive laws in Articles 12(1) and 13(1) of the Constitution.