Solicitation Ban case

[10-1 KCCR 541, 96Hun-Ka5, May 28, 1998]

A. Background of the Case

In this case, the Court struck down, as being violative of right to pursue happiness, the old Prohibition on Soliciting Contributions Act (PSCA) and its Article 3, which left approval of soliciting activities to the discretion of administrative agencies, and limited the permissible purposes of solicitation, thereby in principle banning solicitation altogether.

Article 3 of PSCA (revised to the Regulation on Soliciting Contributions Act on Dec. 30, 1995 through Act No. 5126) banned solicitation of contributions in principle and provided a number of exceptions that could be applied upon approval of the Contribution Evaluation Committee. Article 11 of PSCA punishes unapproved solicitation with imprisonment of up to three years or a fine up to two million won.

The claimant was prosecuted in the Seoul District Court on charges including a violation of the Labor Disputes Adjustment Act and solicitation of contributions without obtaining approval of the Mayor of Seoul in contravention of Article 3, 11 of PSCA. Upon his motion challenging the constitutionality of Article 3 of PSCA, the Seoul District Court applied to the Constitutional Court for the constitutional review of the statute.

B. Summary of the Decision

The Court decided that Article 3, 11 of PSCA excessively limits people's right to pursue happiness as follows:

The right to pursue happiness provided by Article 10 of the Constitution includes, as its concrete manifestation, a general freedom of action and a right to freely develop personality. The act of soliciting contributions are protected thereunder.

License by an administrative authority does not establish a new right. It restores the basic liberty which was previously restricted for the reason of public interest. Therefore, the procedure of approval should not eliminate the right itself. Anyone who meets all

the substantive requirements for approval should be given the right to request that the ban be lifted, which has become only formal by now. Article 3 of PSCA, while specifying the conditions under which approval can be given by an administrative body, leaves the ultimate decision to the sole discretion of the body without specifying when the approval shall be given. It does not provide for one's right to request approval upon satisfying all the requirements, and therefore infringes on the basic right (right to persue happiness).

Limitations on basic rights can restrict the permissible means of exercising the right or be applied to the question of permission itself. In order to minimize the extent of restriction of basic rights, the legislature should first consider using the means restriction, and resort to a complete ban only when it is found to be insufficient for accomplishing the targeted public interest. The Article 3 limitation on the scope of permissible purpose for solicitation is not a means restriction, and operates on the level of whether or not to allow exercise of the basic right at all. Property rights and stable livelihoods can be sufficiently secured by a restriction on the process and method of solicitation and the use of the collected funds that is less than the limitation on its purposes. Article 3 and its penalty provisions in Article 11 exceed the scope necessary for accomplishment of the legislative intent in restricting basic rights.

C. Aftermath of the Case

Elimination of the general ban on solicitation in this case represents the Court's acknowledgment of the changes that have taken place since the time of enactment in 1951. Since then, people have drastically improved their standards of living and have matured into democratic citizens who make decisions on and responsibly conduct their lives in the community on the basis of the views of life and society of their own choosing. The decision expanded the opportunities for people to actively participate in recreation of the society, and thereby achieve self-realization, through the acts of donation.

In particular, given the importance of funding foundation, operation, and activities of an organization through solicitation, the decision may be said to have indirectly contributed to substantive protection of freedom of association.

When the Prohibition on Soliciting Contributions Act was amended into the Regulation on Soliciting Contributions Act on December 30, 1995, before the decision was

announced, the new law stated a set of legislative purposes different from that of the old law in Article 1(Intent), and restricted the methods of solicitation in Article 6, seq. However, the new law inherited the danger of being unconstitutional from the old law because it still limited the permissible purposes of solicitation to four categories (Article 4 (2)).