Visually Impaired Massagers Case

[20-2(A) KCCR 1089, 2006Hun-Ma1098·1116·1117 (consolidated), October30, 2008]

In this case, the Constitutional Court decided that Article 61 Section 1 of the former Medical Service Act and other relevant provisions which exclude the non-visually impaired from massage services by giving massager licenses exclusively to the visually impaired do not contradict the Constitution.

Background of the Case

Despite the Constitutional Court's previous decision that held unconstitutional the former Enforcement Regulation excluding the non-visually impaired from the massaging profession, the National Assembly, on September 27, 2006, revised Article 61 Section 1 of the former Medical Service Act to grant exclusive license to the visually impaired (hereinafter the "Instant Provision"), thereby retaining the restriction upon the non-visually impaired in attaining massager licenses. The complainants argued that the Instant Provision barred non-visually impaired persons from obtaining the massager licenses and therefore infringed on their basic rights, including their freedom of occupational choice, and filed a constitutional complaint.

Summary of Decision

In a vote of 6 to 3, the Constitutional Court declared the Instant Provision constitutional for the following reasons.

1. Majority Opinion of Six Justices

The Instant Provision aims to guarantee the livelihood of the visually impaired based on, for instance, Article 34 Section 5 of the Constitution that concerns the protection of the disabled. In this case, such constitutional requirement to protect the disabled may clash with people's basic rights such as the freedom of occupational choice. Therefore, in reviewing whether or not the Instant Provision exceeded

the limit to therestriction on basic rights defined in Article 37 Section 2 of the Constitution, specifically concerning the adherence to principles of the least restrictive means and balance of interests, it would be necessary to comprehensively weigh factors, including the extent to which people's basic rights are regulated, characteristics of basic rights of the visually impaired and the status of relevant welfare policies, the visually impaired-friendly system of the massage business and other feasible alternatives in addition to the stated constitutional requirement.

The Instant Provision aims to enable the visually impaired to lead a rewarding life and realize their right to humane living conditions, which is legitimate. Furthermore, given the nature of massage services that barely require spatial movement and mobility compared to other types of jobs and that offer easier jobs for the visually impaired who are equipped with more developed sense of touch, it can be recognized that the Instant Provision performs as a suitable means to serve the abovementioned legislative purpose as it assists the visually impaired in their livelihood and gives them the opportunity for occupational activities by allowing their monopoly over the massage business.

Moreover, the Instant Provision does not contradict the principle of the least restrictive means in that, amid insufficient welfare policies for the visually impaired, the massager is almost the only occupation available for the visually impaired, that there are no ample alternatives for them to maintain the livelihood when the non-visually impaired are also authorized to engage in the massage profession, and that it is necessary to take preferential measures for the visually impaired-the minority who have been discriminated against over the years in terms of education, employment, and many others-in order to realize substantial equality. Also, even when weighing public interests such as the right to livelihood of the visually impaired and the private interest sacrificed as a consequence such as people's freedom of occupational choice, it cannot be immediately concluded that there is imbalance between the two interests.

However, such a system favoring the visually impaired, which is designed to secure their right to livelihood by restricting people's basic rights, is nothing but a policy measure that we must inevitably accept

in light of our social reality where efficient policy means to guarantee visually impaired persons the right to livelihood is hardly found. It would also be impossible to maintain the system when the socioeconomic conditions are developed. In that sense, it is required of the government authorities, including the legislators, to perform a more serious and active review to devise plans to resolve the tension between the two conflicting basic rights - the right to livelihood of the visually impaired and the freedom of occupational choice of the non-visually impaired - and enable their harmonious coexistence.

Therefore, it cannot be seen that the Instant Provision overrode the permitted boundary of restriction on basic rights set forth in Article 37, Section 2 of the Constitution and thus violated the freedom of occupational choice or equality rights of the non-visually impaired.

2. Dissenting Opinion of Three Justices (Unconstitutional)

It can be duly recognized that guaranteeing the visually impaired their living and the opportunity to engage in occupational activities serves major public interests. Yet, removing the visually impaired persons' monopoly over massager licenses does not make their relevant business activities impossible, and the single fact that they have to compete with the non-visually impaired does not give ample reason to view that there is a clear and evident risk of justifying the restriction on freedom of occupational choice. Furthermore, considering facts such as only some 17 percent of those with severe visual disabilities, or 6,000 to 7,000 visually-impaired persons, are registered and working as massagers, it is doubted whether the Instant Provision is effective in guaranteeing their livelihood and whether simply providing monopoly over the massage business offers the opportunity to choose one's job as a means to self actualization and personality development. Therefore, it is also difficult to approve that the Instant Provision substantially and fully contributes to serving the relevant legislative purpose. In addition, provided that visually impaired persons' monopoly over the massage profession as prescribed by the Instant Provision is not the only means on the table to provide the visually impaired with opportunities to guarantee their living and occupational activities, their monopoly is hardly viewed as an inevitable means to serve the

legislative purpose. The Instant Provision also contradicts the principle of the least restrictive means in protecting basic rights and, furthermore, it is difficult to see that the public interest protected by the Instant Provision such as the guarantee of living of the visually impaired, overrides the freedom of occupational choice of the non-visually impaired.

Therefore, the Instant Provision undermines the essence of the freedom of occupation by violating the rule against excessive restriction and therefore contradicts the Constitution.

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Parties

Complainants

1. Yu ○-seon et al. (2006Hun-Ma1098)

2. Song ○-taek et al. (2006Hun-Ma1116)

3. Kang ○-tae et al. (2006Hun-Ma1117)

Park Tae-won et al., Attorney in charge

Joinder

1. Ga ○-hwa et al. (2006Hun-Ma1116)

2. Kang ○-deok et al. (2006Hun-Ma1117)

Park Tae-won et al., Attorney in charge

Holding

Complainants'constitutional complaint are denied

Reasoning

1. Introduction of the Case and Subject Matter of Review

A. Introduction of the Case

(1)The complainants and joinders of this case are those who wish

to practice massage or finger-pressure treatment. On May 25, 2006, the Constitutional Court declared that the phrases "visually impaired" in Article 3 Section 1 Items 1 and 2 of the "Massager Rule (revised by Rule No. 153 of Ministry for Health, Welfare and Family Affairs, June. 16, 2000), "which grants massager license exclusively to visually impaired persons, is unconstitutional as it violates the principle of statutory reservation or the rule against excessive restriction. However, the National Assembly, on September 27, 2006, newly revised Article 61 Section 1 of the Medical Service Act, under which only the visually impaired are licensed to practice massage, thereby retaining the restriction on non-visually impaired persons in obtaining the massage license.

(2)The complainants and joinders of this case applied for massage licenses in order to engage in the massage practice, but the competent mayors and provincial governors refused or plan to refuse the applications on grounds that they are not visually impaired persons under the Welfare of Disabled Persons Act.

(3)In response, the complainants argued that their basic rights, such as freedom of occupation, was infringed on by the revised Medical Service Act, which provides that only some designated among visually impaired persons defined in the Welfare of Disabled Persons Act are entitled to massage licenses and that the non-visually impaired are excluded. Based on this reasoning, the complainants filed constitutional complaints of this case on September 27 and 29, 2006, respectively. The joinders, since their participation on October 2, 2006, have also joined in this case as well as other several relevant cases.

B. Subject Matter of Review

The complainants had filed this constitutional complaint regarding "a visually impaired person under the Welfare of Disabled Persons Act" in Article 61 Section 1 of the former Medical Service Act (wholly revised by Act No. 8007, September 27, 2006, hereinafter the "Former Medical Service Act"). However, the Act was wholly revised on April 11, 2007, and Article 61 Section 1, while remaining unchanged in its

entirety, was revised as Article 82 Section 1 of the Medical Service Act (wholly revised as Act No. 8366).

Although Article 61 Section 1 of the Former Medical Service Act consequently lost effect, Article 82 Section 1 of the revised Medical Service Act that contains the same contents continues to restrict the fundamental rights of the complainants as constitutional review of the subjected Instant Provision is yet to be concluded. In this context, it would be appropriate to review the "constitutionality of the massage license system favoring the visually impaired" as prescribed by both the former and new Acts comprehensively, since such review would not only conform to the complainants' intentions but also correspond to the purpose of the constitutional complaint system that essentially aims for relief from infringement of fundamental rights.

Therefore, the subject matters of constitutional review in this case are parts of same contents in Article 61 Section 1 of the former Medical Service Act (before being wholly revised by Act No. 8007, September 27, 2006 and No. 8366 on April 11, 2007) and Article 82 Section 1 of the Medical Service Act (wholly revised by Act No. 8366, April 11, 2007) - "a visually impaired person under the Welfare of Disabled Persons Act (when the two respective Instant Provisions combined, hereinafter the "Instant Provision")" - and the Instant Provision is listed below.

[Instant Provision]

Former Medical Service Act (Wholly revised by Act No. 8007, September 27, 2006 and Act No. 8366, April 11, 2007)

Article 61 (Massagers) ① Each massager shall be a visually impaired person under the Welfare of Disabled Persons Act, who falls into any of the following Items and whose qualification is accredited by the mayor/provincial governor:

1. A person who has finished the curriculum on physical therapy following the limitations on the service to be rendered by a massager as set forth in (4) at one of special schools under Item 5 of Article 2 of the Elementary and Secondary Education Act, which provides education equivalent to a high school; or

2. A person who has finished an education course equivalent to or higher than a junior high school and a 2-year or longer course for

training massage at a massage training institution designated by the Minister of Health and Welfare.

Medical Service Act (Wholly revised by Act No. 8366, April 11, 2007)

Article 82 (Massagers) ① Each massager shall be a visually impaired person under the Welfare of Disabled Persons Act, who falls into any of the following Items and whose qualification is accredited by the mayor/provincial governor:

1. A person who has finished the curriculum on physical therapy following the limitations on the service to be rendered by a massager as set forth in (4) at one of special schools under Item 5 of Article 2 of the Elementary and Secondary Education Act, which provides education equivalent to a high school; or

2. A person who has finished an education course equivalent to or higher than a junior high school and a 2-year or longer course for training massage at a massage training institution designated by the Minister of Health and Welfare.

2. Arguments of Complainants and Relevant Bodies

(intentionally omitted)

3. Review on Justiciability

A. Joinder application

(1)Inclusion of additional complainants is not provided for in the Constitutional Court Act, but the Civil Procedure Act and Administrative Litigation Act apply mutatis mutandis to the procedure of constitutional adjudication (Article 20 Section 1, Constitutional Court Act). The Constitutional Court previously recognized the justiciability of joinder application by deciding (5-2 KCCR 284, 295-296, 89Hun-Ma248, September 27, 1993; 137 KCCR 356, 360-361, 2005Hun-Ma872, et al., February 28, 2008), in case where the objects of lawsuits are to be unitarily decided on either party and a third person, such third person may intervene in the lawsuit as a

co-litigant (Article 40 Section 1, Constitutional Court Act and Article 83 Section 1 of the Civil Procedure Act). However, because joinders do not file a separate constitutional complaint but are joined in the pending complaints as additional complainants, joinder application must meet other requirements for justiciability, such as complaint filing periods.

(2)In this case, as for complainants who applied for joinder after the filing of the constitutional complaints on the Instant Provision, they have their fundamental rights infringed on by the Instant Provision as other complainants. Meanwhile, if the complaints of this case are accepted and the Instant Provision, which serves as the standard for excluding the non-visually impaired from the massage practice, is ruled unconstitutional, the decision has a binding force on all of the State agencies and municipalities, and this means the additional complainants also gain the position to be licensed for the massage practice. Although the additional complainants are not forced to jointly file a complaint, they are in fact affected by the decision holding the Instant Provision unconstitutional, which means their cause of complaints is to be unitarily decided on a third person and themselves. Further, as the time limit of filing complaints for the additional complainants is not exceeded as reviewed later on, their application for inclusion is allowed as an admissible joinder application under Article 40 Section 1 of the Constitutional Court Act and Article 83 of the Civil Procedure Act (hereinafter combining the original complainants and joinders, the "Complainants").

B. Self-relatedness and directness

The Instant Provision stipulates that a massage license be granted only to the "visually impaired persons under the Welfare of Disabled Persons Act" and thereby directly restricts non-visually impaired persons from obtaining the massage license without undergoing specific enforcement actions. As a result, the non-visually impaired complainants will not only be excluded from massage licensing but also be prohibited from engaging in the massage business. Complainants therefore meet the requirements for relatedness and

directness to file a constitutional complaint.

C. Presentness and filing time limit

Although the fundamental rights of Complainants were not actually violated by the Instant Provision at time of their complaint filing or joinder application, most of them, not being visually impaired, had their massager license application refused by their competent mayors and Provincial governors, including the Seoul City Mayor. Even those who are not yet refused are justly deemed to have the sense of calling for the massage business considering their application for massager licenses, which indicates that it was evidently predictable at time of their complaint filing or joinder application that the Instant Provision would undoubtedly infringe on their fundamental rights. Therefore, the presentness of basic rights infringement is acknowledged in light of the purpose of guaranteeing the effectiveness of fundamental rights (18-1(B) KCCR 112, 118-119, 2003Hun-Ma715 et al., May 25, 2006).

In addition, as far as presentness is accepted on the grounds that fundamental rights infringement is definitely predicted and, it is unlikely that the problem of exceeding the time limit for filing a complaint will occur.

Meanwhile, the interested legal entities argue that, even when the Instant Provision ruled unconstitutional, Complainants will still be unable to obtain massager licenses unless they take physical therapy education programs or massage training courses therefore, the presentness of fundamental rights violation cannot be acknowledged. However, since exclusion of the non-visually impaired from such massager nurturing programs or massage training courses is caused by the Instant Provision that bans them from massaging, violation of fundamental rights of the Complainants who are unable to be licensed for the massage practice occurs with the Instant Provision in the first place. Therefore, the aforementioned argument of the interested legal entities are not accepted.

D. Requirement of exhaustion rule

When fundamental rights are directly violated by statutes themselves, there are no redemption procedures as it is impossible to file a lawsuit challenging the validity of statutes to ordinary courts. Therefore, a constitutional complaint can be filed directly.

Since there is no way to challenge the validity of the Instant Provision in ordinary courts and no redemption measures exist in other laws or regulations either, the rule of exhaustion applies in this case.

E. Sub-conclusion

Therefore, the complaint in this case meets all of the requirements for justiciability.

4. Review on Merits

A. Significance and history of the Instant Provision

(1) History of massage license system favoring the visually impaired

(A) The massage business system first began with the acupuncture and massage education for the visually impaired at Kyungsung Hospital (currently named Seoul National School for the Blind) established under the healthcare center system of Governor-General of Korea (Decree No. 43) on March 27, 1912. Since then on October 29, 1914, the massage qualification or the licensing system was introduced under the Police Department Rule No. 10 of Governor-General of Korea on Regulation of Massage Therapy, Acupuncture, and Moxibustion Businesses (State Gazette No. 673, Governor-General of Korea), which started to develop the massage practice into one suitable for the visually impaired.

(B) Based on the proviso of Article 38 Section 1 of the wholly revised Medical Service Act, or Act No. 1035, which replaced the National Health Service Act on March 20, 1962, Article 3 of the Massager Licensing Regulation (Ministry of Health and Social Affairs Rule, promulgated December 12, 1963), provided for qualifications for massagers. Article 3 Item 1, in particular, provided that massager

licenses shall be granted to "those who finished at least three years of training courses on massage, finger-pressure treatment, electrical massage and other types of stimulation treatment at schools for the blind accredited by Minister of Education and Human Resources Development and designated by Minister of Health and Social Affairs".

(C) Article 61 Section 1 of the Medical Service Act, wholly revised as Act No. 2862 on December 31, 1975, even granted licenses to visually impaired persons by law. Further, Article 3 Section 1 of the Massager Rule, which was established as Rule No. 757 of the Ministry of Health and Social Affairs on October 15, 1984, also stipulated that only the visually impaired shall be licensed for the massage practice.

(D) Furthermore, Article 67 of the Medical Service Act, wholly revised as Act No. 3504 on December 31, 1981, started punishing those engaged in unlicensed massage businesses, and Act No. 3948 revised on November 28, 1987 removed the regulation that granted massage licenses to the visually impaired and was enacted as Rule of the Ministry of Health and Social Affairs. However, Article 3 Section 1 of Rule No. 153 of the Ministry, Massager Rule, which was revised on June 16, 2000, also confined massager licenses only to those who have impaired vision, which has remained unchanged before the Constitutional Court ruled the exclusive licensing unconstitutional in the case 2003Hun-Ma715 et al., May 25, 2006.

(2) Legislative history of the Instant Provision

(A) In the case of constitutional complaint, 2002Hun-Ka16, June 26, 2003, regarding Article 67 etc. of the Medical Service Act, the Constitutional Court held constitutional Article 61 Sections 1 and 4 of the Former Medical Service Act, which did not explicitly set into law Article 3 Section 1 Items 1 and 2 of the Massager Rule that gives massage license exclusively to visually impaired persons, as regards the claim that the Instant Provisions violated the principle of congressional reservation of fundamental rights and the rule against

blanket delegation (15-1 KCCR 663, 2002Hun-Ka16, June 26, 2003).

(B) In Case 2003Hun-Ma715 et al., May 25, 2006, in which the constitutionality of Article 3 Section 1 Item 1, etc. of the Massager Rule was challenged, decided, in a vote of 7 to 1, that the Massager Rule (revised as Rule No. 153 of Ministry of Health and Social Affairs, hereinafter "Exclusion of the Non-Visually Impaired") violates the principle of statutory reservation and the rule against excessive restriction and therefore infringes on the occupational freedom of visually unimpaired persons (18-1(B) KCCR 112, 2003Hun-Ma715 et al., May 25, 2006). The reasoning for such decision varied among the seven Justices: two Justices stated concurring opinions on whether the subjected Instant Provision violated the principle of statutory reservation by establishing a subordinate regulation on a issue concerning fundamental rights, or the Massager Rule, instead of prescribing it into law; other two Justices stated concurring opinions as regards whether exclusive licensing for the visually impaired violates the rule against excessive restriction and thus infringes on the occupational freedom of the non-visually impaired; the remaining three Justices issued concurring opinions on both of the aforementioned two issues, respectively.

(C) After the Constitutional Court's decision holding such favoritism to visually impaired persons unconstitutional in Case 2003Hun-Ma715 et al., the National Assembly made changes to Article 61 Section 1 of the Former Medical Service Act, "Each massager shall have one's qualification accredited by the mayor/provincial governor", revised by Act No. 8007, September 27, 2006, "Each massager shall be a visually impaired person under the Welfare of Disabled Persons Act, who falls into any of the following Items and whose qualification is accredited by the mayor/provincial governor". This revision has consequently somewhat expanded the scope of qualification for massagers while retaining the visually impaired-friendly system, and it has since been wholly revised by Act No. 8366 on April 11, 2007, also stipulated in Article 82 Section 1 of the Medical Service Act.

(D) The reason why the National Assembly revised, as indicated

above, the Medical Service Act after the Constitutional Court's decision of unconstitutionality in Case 2003Hun-Ma715 et al. is, "The purpose is to directly set into law that, in giving slightly more consideration to the purpose of Article 34 Section 5 of the Constitution that defines the State's duty to protect the physically disabled than the occupational freedom of the non visually impaired, the license will be granted to the visually impaired under the Welfare of Disabled Persons Act who have finished a certain training program".

(3) Significance of the Instant Provision

(A) The "act of massage" under the Medical Service Act is interpreted as, with the goal of promoting public health, the apply of physical therapy by using manual techniques, such as massage or hands-on therapy that manipulates, pulls, or taps the body with hands or special aids, electronic aids, and other stimulation treatment to boost blood circulation and ease muscle tension (Supreme Court, June 1, 2001, 2001Do1568). The job of massagers is to "perform physical therapy on body by using manual techniques such as massage or hands-on therapy, electronic aids, and other stimulation treatment (Article 2, Massager Rule)". On the other hand, the job of physical therapists is "to provide physical therapy, not massage, such as thermal therapy, only available under the guidance of doctors with the goal of removing diseases or pain (Article 2, Medical Technicians, Etc. Act and Article 2 Item 3, Enforcement Decree of the Act)". As such, the job of physical therapists is distinguished from that of massagers, but there still are some similarities between the two.

(B) It is true that there are many types of professional massage businesses under the name of sports massage, foot massage, etc. Pursuant to the Instant Provision, visually impaired persons can have their massager licenses issued and engage in the massage business, whereas non-visually impaired persons are not entitled to massager licenses in the first place. If unlicensed persons engage in similar massage businesses for profit making purposes, they can be punished under Article 88 of the Medical Service Act (Supreme Court, January

27, 2004, 200Do4553).

(C) The exclusive massage licensing for visually impaired persons pursuant to the Instant Provision restricts the freedom of non-visually impaired persons from choosing the profession of massaging and discriminate them against the visually impaired in obtaining licenses. Viewed from a different perspective, however, the system functions as a preferential treatment for the visually impaired to lead a humane livlihood.

B. Binding force of the unconstitutionality decision

Article 47 Section 1 of the Constitutional Court Act stipulates that, "Any decision that statutes are unconstitutional shall bind the ordinary courts, other state agencies and local governments", while Article 75 Section of the same Act provides that, "A decision to uphold a constitutional complaint shall bind all the state agencies and the local governments". The Instant Provisions provide for a binding force in order to guarantee effectiveness of Constitutional Court's decisions that hold statutes unconstitutional and accept constitutional complaints. In this regard, whether the binding force extends to the legislature, or the National Assembly, and whether reasoning of a decision as well as the judgment of it will have a binding force can be of issue. Resolving such issues will require a careful approach of considering factors such as the scope and limitations of the constitutional adjudicative authority or the judiciary and the National Assembly.

Although the Constitutional Court ruled, in Case 2003Hun-Ma715 et al., that the exclusive massage licensing for the visually impaired was unconstitutional for violating the rule against excessive restriction and infringing on occupational freedom of the non-visually impaired, the National Assembly revised the Instant Provision that is in essence the same as the exclusive massage licensing. In this case, the complainants argue that such action by the National Assembly ignores the binding force of the Constitutional Court decision that held the exclusive licensing to be in violation of the rule against excessive restriction, and this position basically presupposes that one of the reasoning of the decision, that the exclusive licensing violates the rule

against excessive restriction, has a binding force.

As mentioned earlier, a careful approach is needed on whether even the reasoning of the decision should have a binding force, but even if it does have one, it will take the concurring vote of six or more Justices to grant a binding force to the reasoning of the judgment, one of which in this case is that the exclusive massage licensing for the visually impaired violates the rule against excessive restriction (Article 113 Section 1, Constitution and Article 23 Section 2, Constitutional Court Act). If the six person quorum for an unconstitutionality decision is not met, the reasoning will not be able to have a binding force. In Case 2003Hun-Ma715 et al., seven Justices ruled that the exclusive massage licensing violates the Constitution, but the reasoning was divided-some stated that such licensing violates the principle of statutory reservation and others cited the violation of the rule against excessive restriction. In this case, because only five Justices joined in citing the violation of the rule against excessive restriction as the reasoning, the reasoning of violation of the rule against excessive restriction will not have a binding force.

Then, even though the National Assembly revised the Instant Provision that basically maintains the exclusive massage licensing for the visually impaired after the Constitutional Court's unconstitutionality decision in Case 2003Hun-Ma715 et al., as far as it is impossible to give a binding force to the reasoning of the violation of the rule against excessive restriction, it would be needless to review whether it is binding on the National Assembly and whether reasoning as well as judgment of the decision will have a binding force. The Instant Provision would simply not be contradictory to the binding force of the stated unconstitutionality decision.

C. Review on constitutionality

(1) Fundamental rights at Issue and constitutional review method

(A) Article 34 Section 1 of the Constitution provides that, "The State shall have the duty to endeavor to promote social security and welfare", and therefore stipulates the State's duty to ensure people's right to livelihood. Also, Article 34 Section 5 of the Constitution

stipulates that, "Citizens who are incapable of earning a livelihood due to a physical disability, disease, old age or other reasons shall be protected by the State", and thus proclaims the State's duty to protect the physically disabled and other people lacking self sufficiency.

As such, legislators have the obligation to formulate welfare policies actively corresponding to the constitutional commitment to the livelihood rights of the physically disabled, the underprivileged in society, but there is a likelihood that legislation in this regard may clash with other people's fundamental rights. In the case of the Instant Provision that stipulates exclusive massage licensing for those with visual impairment, the State duty specified in Article 34 Section 5 of the Constitution may conflict with fundamental rights such as people's freedom of occupation, which should be fully considered in constitutional review of the Instant Provision. In this case, the least restrictive legislation under Article 37 Section 2 of the Constitution will continue to apply, but, in the process of reviewing conformity with the least restrictive means and balance of interests, it would be necessary to determine the appropriate sentence also based on comprehensive consideration of the extent as to how far people's fundamental rights are restricted, fundamental rights of visually impaired persons and their welfare policies, exclusive massage licensing for the visually impaired and its alternatives.

(B) Meanwhile, in case the fundamental rights including the freedom of occupation are restricted as a result of the preferential treatment for the visually impaired as in the Instant Provision, excessive restriction of one's occupational freedom and equality rights violation both are at issue. In this context, it would be appropriate to review the violation of occupational freedom and equality rights together as a package instead of separately examining the two elements, since the two issues, the restriction of occupational freedom and unequal treatment suffered by the group applicable or non applicable by the discriminatory policy set by legislators, are very closely related. In particular, the legislative purpose of the Instant Provision is to favor the visually impaired over the unimpaired that results in the restriction of others' freedom of occupation, so it appears to be more adequate to review the justification of both the restriction on the freedom of occupation and

the discriminatory treatment.

(2) Constitutionality of the Instant Provision

(A) As viewed earlier, Article 34 Section 5 of the Constitution proclaims the State's duty to protect the citizens who are incapable of earning a livelihood, and this corresponds to the spirit of Article 8 Section 1 of the Welfare of Disabled Persons Act that prohibits discrimination of the disabled and "Declaration on the Rights of Disabled Persons" that promotes social security and employment. Such duty of the State needs to be materialized by legislation of legislators. In other words, legislators should devise welfare policies required for job training, job arrangements, employment, etc. in order for the disabled to receive adequate training and have suitable jobs that fit their aptitudes and abilities according to their age, ability and the type and level of disability. The severely disabled barely self sufficient, in particular, will need a more active policy.

The primary purpose of the welfare policies for the disabled lies with guaranteeing their livelihood rights, but the purpose must not limit such a goal. The policies should also be focused on providing overall environment with the disabled as the minority in which they are treated as true members of the society and enabling them to have their dignity and value respected and lead a humane livlihood pursuant to Article 10 and 34 of the Constitution. However, active welfare policies for the disabled sometimes take the form of favoring the disabled against other citizens, which may result in the restriction of non-disabled persons' fundamental rights. In that case, legislators should be able to find harmony and balance between the two interests of protecting the disabled and guaranteeing people's fundamental rights, and the legislators will have to exercise their legislative discretion within such limitations.

(B) The Instant Provision, as aforementioned, aims to provide the visually impaired with livelihood based on the stated constitutional commitment to protecting the physically disabled and the principles of welfare policy for the disabled, and the legislative purpose of the Instant Provision lies ultimately in making their lives rewarding and

realizing their right to live a humane livlihood. In this sense, the Instant Provision fully meets the requirement for legitimacy of purpose.

Furthermore, provided that the massage business barely requires spatial movement and mobility and is friendly to the visually impaired with developed sense of touch, the Instant Provision, which gives massage licenses exclusively to the visually impaired and thereby supporting their livelihood and offer opportunities for employment, serves as a suitable means to serve the stated legislative purpose.

(C) At the same time, there are several alternatives to serving the legislative purpose other than granting exclusive license to the visually impaired: first, to offer direct financial assistance; second, to favor the visually impaired over others in choosing and performing one's occupation; third, to provide a program promoting employment and vocational rehabilitation. In practice, the Welfare of Disabled Persons Act, taking into account the level of disability and financial conditions, articulates systems such as disability allowances (Article 49), supply of medical expenses (Article 36), Instant Provision of educational expenses for children (Article 38), supply of self-reliance training expenses (Article 43), loan of fund, etc. (Article 41). in order to provide for income sources and vocational rehabilitation there are also other alternatives such as support for business (Article 42), which gives priority to the disabled in installing stores selling daily necessities or vending machines in the public facilities or in selling tobacco and postage stamps, and an incentive system that encourages state agencies to preferentially purchase goods produced (Article 44). Yet, it cannot be denied that the welfare of the disabled in reality in fact is far from these provisions, particularly the visually impaired. For instance, those eligible for financial support such as disability allowances and supply of medical expenses are very limited and the amount of money is extremely small, which therefore is not substantially helpful to the visually impaired. Not many disabled persons benefit from the business support, such as giving priority in tobacco retail business or installation of vending machines, either, and the said benefits are particularly rarely enjoyed by visually impaired persons due to their physical characteristics. Also, even compulsory

employment of massagers in certain work places of certain sizes or incentives such as tax benefits in business activities of the visually impaired may not be very effective when assuming that the visually impaired will be competing against the non-visually impaired.

If we consider such realistic aspects of the welfare policy for the visually impaired, in order to ensure welfare and the right to humane livelihood of visually impaired persons in our society, it would be inevitable to allow the visually impaired monopoly over the massage practice as a legislative decision. Indeed, because denying non-visually impaired persons the opportunity to obtain massager licenses in the first place results in an extremely serious restriction of fundamental rights, it is undoubted that the discrimination is inevitable in serving the legislative purpose and should be adopted only as the last resort. Still, it is not easy for the visually impaired to choose jobs even if support for employment in other areas is provided because not even their right to mobility is guaranteed in our society. The occupation massager is one of the very few jobs that for the visually impaired can opt for, and barely no other occupation would be available in reality. In particular, according to many statistics confirmed so far, it is not difficult to find that quite a few number of persons with severe visual impairment have obtained massager licenses and rely on massage practice for their livelihoods. Given this reality alone, the massage practice is almost the only profession that the visually impaired can choose and engage in.

As verified through cases of many other countries such as the United States and United Kingdom equipped with developed welfare policies for the visually impaired, if more financial support is provided to the visually impaired and if they are in an environment to engage in job activities other than massaging, there would be no need to go so far as to grant the visually impaired monopoly over the massage practice. Still, as Korea is not yet ready for such an environment, the aforementioned means alone cannot be an effective alternative to serve the legislative purpose, and the welfare policy must be implemented in a way that fit sour current socioeconomic conditions. This conclusion is well exhibited in Taiwan, which grants the monopoly right for the massage practice to the visually impaired as a form of employment reservation, and Japan, where a certain percentage of massager

positions is allotted to those with visual impairment.

It is true that people's freedom of occupation is restricted as a result of the Instant Provision that grants monopoly of the visually impaired over the massage practice, but this policy is an inevitable choice to ensure their livelihood rights since the massage practice is almost the only occupation they can normally engage in. In contrast, the scope of profession that non-visually impaired persons can choose is extensive and they have many options other than the massage practice. In particular, physical therapists are almost similar to massagers, and it is possible that one can engage in the practice by taking a series of training courses and tests and obtaining licenses, which means it is not true that other routes to choosing massagers and other similar occupations is totally blocked.

Having considered the above, it cannot be contested that the Instant Provision stipulating exclusive licensing for the visually impaired contradicts the principle of the least restrictive means.

(D) Visually impaired persons have been under visible and invisible forms of discrimination in overall daily lives, and it is undeniable that they have been severely discriminated against in sectors such as education and employment. There were no welfare policies for their income compensation or vocational rehabilitation that can ensure a humane livelihood. In that sense, exclusive massage licensing for the visually impaired is the minimum preferential treatment to guarantee their livelihood and a humane life in this reality and has been adopted as a means to compensate for the discrimination and realize substantial equality.

In this regard, some may point out that social welfare should be achieved by financial compensation by the government and that restriction on other people's fundamental rights is inappropriate. However, providing the visually impaired with financial support would evidently forgo the basic idea of Article 10 and Article 34 Section 5 of the Constitution that stipulates the protection of the physically disabled as members of the community. What visually impaired persons want is not mere financial assistance but to engage in a proper and rightful profession. Whether it be from the point of social integration or protection of fundamental rights, the State should offer

special protection for the disabled, which is not a special favor of benefit but a constitutional right. A humane livlihood allows the visually impaired, as others, to meet the conditions to earn their livelihood by engaging in the profession through which they can manifest their personality as fitting their abilities, so actively engaging in a profession, instead of simply receiving financial support from the government, would elevate their occupational awareness and prevent sense of alienation. Moreover, as the majority of visual impairment is acquired, not congenital, those with no visible impairment can develop one anytime. In this context, giving priority to the disabled, in particular the visually impaired, is hardly an unjust discrimination against the non-visually impaired.

(E) In short, the legislators legislated this Instant Provision as part of welfare policies for the visually impaired in accordance with Article 10 and Article 34 Section 5 of the Constitution. In the course of the legislation, overall circumstances as reviewed earlier have been fully considered and deserve to be respected: working as massagers is almost the only occupational choice for the visually impaired; there are not enough alternatives to the massage practice to ensure livelihood of the visually impaired if the practice is also open to people without visual impairment; and visually impaired persons are a minority who have long been discriminated against in sectors such as education and employment, so realizing substantial equality requires preferential treatment. The Instant Provision has appropriately weighted diverse circumstances surrounding visually and non-visually impaired persons pursuant to the constitutional commitment to ensuring their right to livelihood. When comparing the public interest to be achieved by the Instant Provision, such as the livelihood rights of the visually impaired, and the consequently sacrificed private interest, such as the freedom of occupation of the others, it cannot be concluded immediately that there is an imbalance between the two interests.

Therefore, the Instant Provision hardly discriminates the non-visually impaired against the visually impaired in violation of the principle of proportionality, and it is also difficult to view that the Instant Provision violates the Constitution by excessively infringing on the freedom of occupation.

(F) The Instant Provision is a means taken by legislators to provide the visually impaired with livelihood and a humane life and thus does not violate the Constitution, but a more serious consideration is required on disadvantages that the non-visually impaired have to suffer from the Instant Provision. It is undeniable that, so far since adopting the exclusive massage licensing for the visually impaired, the disadvantage for non-visually impaired persons of not being able to choose the massage practice as profession and the resulting conflict of attrition has remained in place. In this regard, in light of the fact that the problem of not being able to choose massager as occupation is a social issue no less important than protecting the socioeconomically underprivileged, the legislature and other government authorities should not neglect resolving the issues in carrying out welfare policies for the visually impaired. As aforementioned, the Instant Provision is an inevitable policy measure that we have adopted because other efficient alternatives to ensure livelihood and job activities of the visually impaired are yet not functioning properly. Therefore, if socioeconomic conditions improve and welfare policies for the visually impaired further develop, it would be difficult to maintain the current policy measure of securing their livelihood rights at the expense of others' fundamental rights.

In this respect, the legislature and other government authorities need to actively come up with welfare policies for the visually impaired in order to promptly resolve the issue of fundamental law restriction, but it is currently difficult to find other efficient policy measures to ensure livelihood of the visually impaired other than exclusive massage licensing. Based on serious recognition of such issues, the legislature and other government authorities, for this reason, should commit themselves to more serious and active review on measures to enable harmonious coexistence of the two conflicting fundamental rights-the livelihood rights of the visually impaired and the occupational freedom of the visually unimpaired-particularly on measures that can allow persons with visual impairment to enjoy a humane livlihood based on job activities.

(3) Sub-Conclusion

Therefore, it is not likely that the Instant Provision infringes on the complainants' freedom of occupation and equality rights under the Constitution.

5. Conclusion

Since this complaints of complainants in this case are with no merits, the complaints are all denied as decided in the Holding. This decision is a consensus of all Justices except for the dissenting opinion in below 6. stated by Justice Lee Kang-kook, Justice Lee Kong-hyun and Justice Cho Dae-hyen.

6. Dissenting Opinion of Justice Lee Kang-kook, Justice Lee Kong-hyun and Justice Cho Dae-hyen

We believe that the Instant Provision infringes on the freedom of occupation by contradicting the rule against excessive restriction and thereby violates the Constitution. For this reason, we state the following dissenting opinion.

A. Restriction of occupational freedom by objective reasons

Occupation is not only an activity of earning necessary income but also an essential element in maintaining market economy order, as well as a means to develop one's individual personality by freely manifesting one's personality. The Korean Constitution guarantees the freedom of occupation (Article 15, Constitution).

Therefore, restriction on occupational freedom should by all means be consistent with law and regulations and is only achievable by appropriate means and methods to achieve legitimate and major common goals of society, such as securing national safety, public order or welfare (1 KCCR 329, 336, 89Hun-Ka102, November 20, 1989).

In particular, the Constitutional Court previously held that the restriction of occupational freedom based on objective requirement for permission regardless of one's abilities or qualifications can be justified provided that it is necessary to "prevent clear and evident risk for the

purpose of serving public interests of high importance", so the rule against excessive restriction, namely the principle of strict proportionality, under Article 37 Section 2 of the Constitution serves as a criterion for review (14-1 KCCR 410, 427, 2001Hun-Ma614, April 25, 2002).

The exclusive massage licensing pursuant to the Instant Provision directly violates the occupational freedom of the non-visually impaired. Because such restriction is based on relevant objective requirements irrespective of one's abilities and qualifications, it should be consistent with the rule against excessive restriction under Article 37 Section 2 of the Constitution (18-1(B) KCCR 112, 123-124, 2003Hun-Ma715, May 25, 2006).

B. Review on the Instant Provision

Although the massage practice itself, by its essence, is not unsuitable for the non-visually impaired, the Instant Provision restricts the freedom of occupation based on an objective reason or condition-visual disability. It is only when the purpose of restriction goes beyond simple public welfare to prevent clear and evident risk for the sake of public interest, which is far more important than the occupational freedom, that legitimacy of purpose is achieved. It is fully understood that guaranteeing the visually impaired their livelihood and offering them the opportunity to engage in job activities is a major public interest purpose, but it is difficult to see that there is a clear and evident risk that can justify the restriction on the occupational freedom given the following: as of late March, 2007, the number of visually impaired persons registered as massagers is a mere 6,000 to 7,000 out of the 209,968 registered as those with visual impairment, and removal of exclusive licensing will not make it impossible for the visually impaired to work as licensed massagers but will just place them under competition against the non-visually impaired.

At the same time, it is to be reviewed whether the Instant Provision is a suitable means to provide the visually impaired with livelihood and the opportunity for job activities. As of late March, 2007, of the total visually impaired persons registered, 170,685 persons with level 3

to 6 visual impairment (level 3-11,365, level 4-10,605, level 5-17,532, level 6-131,183) excluding 39,283 with level 1 and 2 severe visual impairment are working in relatively diverse job sectors approximately 17 percent of those with severe visual disabilities, or 6,000 to 7,000 persons, are registered as massagers; and only over 500,000 persons with light visual impairment are registered as massagers. This considered, it is doubted whether the Instant Provision is effective in guaranteeing them livelihood, and simply allowing monopoly of the massage practice hardly leads to the opportunity to choose one's occupation as a means to self actualization and development of individual personality. Therefore, it is difficult to say that the Instant Provision fully contributes to the said legislative purpose in reality.

Furthermore, it is not that there is no other means to provide the visually impaired with livelihood and job opportunities aside from the monopoly over the massage practice pursuant to the Instant Provision. There can be many other forms of support for the visually impaired related to their massage business: to expand the scope of health and welfare related facilities where massagers can work for to health service centers, welfare facilities for the elderly, welfare facilities for the disabled, etc. as well as massage parlors; to reduce the number of test subjects of massager certificate examinations for the visually impaired; implement an compulsory employment quota for visually impaired massagers in massage parlors of certain sizes; to provide the visually impaired with financial assistance in starting massage businesses and tax benefits; to give monopoly to the visually impaired over massage businesses over or under certain sizes, such as out call massage services without business places; to classify the visually impaired into those with severe and light visual impairment and offer appropriate vocational training courses related to job opportunities other than the massage practice; and to enforce improvement in the test system, such as introduction of voice tests and advantage in test time, so that fair verification of abilities can be administered. Given these alternatives, it would be difficult to view that monopoly over the massage practice prescribed by the Instant Provision is an inevitable means to serve the legislative purpose and would violate the least restrictive means. Also, legislators who are trying to settle for the Instant Provision without review thereon or development of alternatives

despite the many alternatives mentioned before have neglected the State's duty to promote social security and welfare (Article 34 Section 2, Constitution) based on the constitutional Instant Provision that the State shall protect those incapable of earning livelihood as prescribed by law (Article 34 Section 5, Constitution).

Besides, the Instant Provision denies the non-visually impaired the opportunity to obtain massager licenses in the first place, and it can be found that balancing of interests is barely realized by just considering the aspect of ensuring livelihood of the visually impaired, particularly some of those with severe impairment. If non-visually impaired persons are also entitled to massager licenses, this will inevitably bring competition with those with severe visual impairment. Although this may lead to an actual disadvantage that abilities of visually impaired persons are unjustly assessed due to prejudices, it is not likely that such will lead to denial of the livelihood rights of those with severe visual impairment. Also, prejudice and discrimination against the disabled is a different challenge that our society and others in this world need to overcome. Even now, it is easily found that so many disabled persons without visual impairment unlawfully engage in the massage practice, and the general public who are laymen to law receive massage service provided by unlicensed non-visually impaired persons in order to relieve physical fatigue and psychological stress from work or workouts, thereby joining in unlawful acts regardless of their true intentions. In that sense, there is a possibility that opening the massager profession to the non-visually impaired and strictly controlling and banning unlawful massage practices result in opportunities for the visually impaired by increasing demand for massage services and normalizing the market. In conclusion, it is fully acknowledged that the public interest to be served by the Instant Provision such as guarantee of livelihood of the visually impaired is important, but it is difficult to decide that the significance of public interest outweighs that of the private interest since denying the non-visually impaired the freedom of occupation infringes on even the essence of fundamental rights.

Therefore, the Instant Provision violates the Constitution by contradicting the rule against excessive restriction and thus the essenceof freedom of occupation (18-1(B) KCCR 112, 123-126, 2003Hun-Ma715,

May 25, 2006).

Justices Lee Kang-kook (Presiding Justice), Lee Kong-hyun, Cho Dae-hyen, Kim Hee-ok, Kim Jong-dae, Min Hyeong-ki, Lee Dong-heub, Mok Young-joon, Song Doo-hwan