The case holding that Article 6 (1) 3 of the School Health Act prohibits the establishment of all charnel facilities in school environmental sanitation and cleanup zones, and thus prohibiting the establishment of charnel facilities as religious facilities violates the freedom of religion guaranteed by the Constitution and the principles of cultural state under the Constitution, and thus, the adjudication of unconstitutionality is requested.

The case holding that Article 6 (1) 3 of the School Health Act prohibits the installation of all charnel facilities in school environmental sanitation and cleanup zones, and prohibiting the installation of charnel facilities in a school facility protection zone pursuant to Article 14 (2) of the Enforcement Decree of the Act on Funeral Services, Etc. and Article 14 (2) of the National Land Planning and Utilization Act, which is possible in a school facility protection zone, on the ground that it infringes on the freedom of religion guaranteed by the Constitution beyond the minimum degree necessary for accomplishing the legislative purpose to protect and promote the health of students and teaching staff and violates the principle of a cultural state under the Constitution,

Article 6 (1) 3 of the School Health Act (amended by Act No. 8678 of Dec. 14, 2007), Article 14 (2) of the Enforcement Decree of the Act on Funeral Services, Etc., Articles 36 (1) 1 (a) and 76 (1) and (2) of the National Land Planning and Utilization Act, Article 71 (1) 4 [Attachment Table 5] subparagraph 1 (d) and Article 77 (1) of the Enforcement Decree of the National Land Planning and Utilization Act, Article 6 (1) 6 and 26 (b) of the Enforcement Decree of the Building Act, Article 47 subparagraph 13 of the Urban Planning Ordinance of the Seoul Metropolitan Government, Articles 9 and 20 of the Constitution

Acheon-gu Seoul Busan District Court Decision 2006Na11484 decided May 2, 201

Seoul Special Metropolitan City Nowon-gu (Attorney Lee Jong-soo, Counsel for defendant)

With respect to the instant case, an adjudication on the unconstitutionality of the part of the "duct facilities" under Article 6 (1) 3 of the School Health Act shall be requested.

1. Case summary

A. On May 17, 2005, the Plaintiff submitted to the Defendant a report on the establishment of a religious charnel house (hereinafter “instant charnel facility”) with 3,202 square meters of the 313.26 square meters of the steel framed roof of reinforced concrete structure built around November 24, 2004, which was located on the ground of 3,429 square meters (hereinafter “instant application site”) owned by the Plaintiff, among the 2nd underground floors of the building of the 3,000 Yongcheon-gu, Seoul Special Metropolitan City, Nowon-gu, Seoul Special Metropolitan City (hereinafter “instant report”).

B. As to this, on June 21, 2005, the defendant presented to the plaintiff on June 21, 2005 the opinion that "as a result of gathering opinions in accordance with Article 46 of the Administrative Procedures Act, ① creation of emotional anxiety to students at elementary schools and middle schools, ② existence of the risk of traffic accidents caused by frequent funeral vehicles, ③ traffic congestion caused by many visitors at a time and time, ④ reduction of public welfare, and ④ impairment of the quality of life of residents, etc. In addition, the defendant rejected the report of this case (hereinafter referred to as "pre-competing disposition") by comprehensively examining all the circumstances, such as the opinions of the presenters under Article 24-4 of the Enforcement Decree of the Administrative Procedures Act, and the opinion of related institutions, etc., and rejected the report of this case (hereinafter referred to as "pre-competing disposition").

C. On July 26, 2005, the Plaintiff was dissatisfied with the preceding disposition and filed a lawsuit with the Seoul Administrative Court seeking revocation of the preceding disposition (2005Guhap22982), and the Seoul Administrative Court revoked the preceding disposition upon acceptance of the Plaintiff’s claim on April 5, 2006. The Defendant appealed against the above judgment, but all dismissed (Seoul High Court 2006Nu10438, 2007Du3671).

D. On December 7, 2005, after the preceding disposition on May 1, 2007, the Defendant added “duct facilities” to facilities prohibited from being installed in school environmental sanitation and cleanup zones (Article 6(1)3 of the School Health Act) and notified the result of re-report on the establishment of crematoriums (re-reports) and re-report on the establishment of crematoriums (re-reports) to the effect that the acceptance of the instant report is impossible (hereinafter “re-report disposition in this case”).

2. Object of the request for adjudication on constitutionality of a law;

The subject of the instant petition for adjudication on the unconstitutionality of statutes is the part of the “duct facilities” in Article 6(1)3 of the School Health Act (hereinafter “the Act subject to proposal”). The provisions and relevant provisions are as follows.

[School Health Act]

(1) No one shall perform acts and facilities falling under any of the following subparagraphs in the school environmental sanitation and cleanup zone: Provided, That acts and facilities deemed not to have any adverse effect on learning and school health and sanitation by the superintendent of an office of education or a person delegated by the superintendent of an office of education from among the acts and facilities prescribed in subparagraphs 2, 2-2, 4, 8, 10 through 13 and 15, shall be excluded:

3. A slaughterhouse, a crematorium, or a charnel facility;

3. Presumption of the judgment

In a case where the provision of the Act subject to the proposal is null and void due to the unconstitutionality of the provision, the re-re-re-re-re-re-re-re-determination in this case shall be revoked as it is unlawful by the binding force of a final and conclusive judgment on the revocation of the preceding anti-re-re-re-re-re-re-determination. Therefore, depending on whether the provision of the Act subject to the proposal is unconstitutional or not, this court

4. Judgment on the unconstitutionality

(a) Legislative history and significance of the provision of the law subject to the proposal;

(1) Legislative history

Since the plaintiff filed a lawsuit to revoke the preceding disposition, the provisions of the law of the Ministry of Health and Welfare (amended by Act No. 7700 of Dec. 7, 2005) revised by the provisions of the former School Health Act (amended by Act No. 7700 of Dec. 7, 2005) was amended to add the School Health Act by Act No. 7700 of Dec. 7, 2005, on the ground that there is no provision concerning the prohibited acts and facilities in the school environmental sanitation and cleanup zone of the former School Health Act (amended by Act No. 7700 of Dec. 7, 2005)

(2) The meaning of the “ductal facilities” as provided by the law of the subject of the proposal

Although the School Health Act does not provide for the definition of “a charnel facility”, Article 2 subparag. 8 of the Act on Funeral Services, Etc. provides that “a charnel facility” means a facility for burying (excluding burial) remains, such as charnels, charnels, and charnels. Thus, “a charnel facility” under Article 2 subparag. 8 of the Act on Funeral Services, etc. should be deemed as “a charnel facility” under Article 2 subparag. 8 of the Act on Funeral Services, etc.

Therefore, since the application of this case is located in school environmental sanitation and cleanup zone, the installation of charnel facilities of this case is prohibited by the provisions of the law subject to proposal.

(b) Restrictions on the installation of charnel houses under Acts and subordinate statutes concerning funeral services, etc.;

Article 14(2) of the Enforcement Decree of the Act on Funeral Services, Etc. provides for residential areas (necessary areas for the protection of peaceful dwelling and healthy living environment) under Article 36(1)1(a) of the National Land Planning and Utilization Act as one of the areas in which it is impossible to install charnel facilities by delegation from Article 15(4) of the Act on Funeral Services, Etc., and the proviso of the National Land Planning and Utilization Act provides for the exclusion of the areas in which charnel facilities may be installed pursuant to the provisions of the National Land Planning and Utilization Act and subordinate statutes. In addition, according to Article 76(1) of the National Land Planning and Utilization Act and Article 71(1)4 of the Enforcement Decree of the same Act, buildings that can be constructed within Class II general residential areas are [Attachment Table 5]. Charnel facilities, such as the instant charnel facilities, are permitted to be constructed as religious facilities under subparagraph 1(d) [Attachment Table 5] of the Enforcement Decree of the Building Act.

On the other hand, there is a need to protect and maintain the educational environment of schools, and therefore it is excluded from charnel facilities among charnel facilities in accordance with the provisions of Article 76(2) of the National Land Planning and Utilization Act, Article 77(1) of the Enforcement Decree of the same Act, and Article 47(13) of the Urban Planning Ordinance of Seoul Metropolitan Government.

The filing of the instant application is a Class II general residential area, and it is possible to establish the instant charnel facilities according to Article 14(2) of the Enforcement Decree of the Act on Funeral Services, Etc. and the National Land Planning and Utilization Act, as religious facilities.

C. Whether the statutory provisions subject to the proposal are unconstitutional

(1) The significance of the cultural state principle under the Constitution

Since the founding Constitution of Korea, the principle of cultural state has been adopted as the basic principle of the Constitution. The current Constitution only declares in the preamble that “each person’s opportunity in the area of culture is equal” and imposes a duty on the State to endeavor to inherit the traditional culture and to promote the national culture.

In addition, the Constitution stipulates the freedom of conscience and ideas, the freedom of religion, the freedom of speech and publication, the freedom of learning and arts, etc. as mental fundamental rights that must be guaranteed to realize the cultural state. In addition, culture expressed in terms of individual, historicality, and diversity should be based on the autonomy of society. These fundamental rights are conditions of non-resolution of the principle of cultural state, the essence of which is the diversity of opinions and ideas.

(2) Basic rights at issue in the instant case

(A) Article 6(1) of the School Health Act prohibits the installation of all charnel facilities in school environmental sanitation and cleanup zones. Accordingly, religious facilities such as the instant charnel facilities are prohibited from installation in school environmental sanitation and cleanup zones, and the installation of religious facilities is exceptionally permitted, not limited to those that are exceptionally permitted. Thus, whether the provision of the proposed law violates the principle of cultural state that the Constitution seeks to guarantee by infringing on the freedom of religion.

(b) Restrictions on and limitations on freedom of religion;

Article 20 of the Constitution declares the freedom of religion by stipulating that “all citizens shall enjoy the freedom of religion,” and the freedom of religion protected by the Constitution includes the freedom of religion, the freedom of religious activities, and the freedom of religious assembly and association, and the establishment of charnels in the religious assembly hall (such as churches, religious church, temple, Buddhist church, religious club, religious club, religious club, religious church, etc.) is closely related to the freedom of religious activities of religious organizations.

According to Article 37(2) of the Constitution of the Republic of Korea, the freedom and rights of the people may be limited to cases necessary for national security, maintenance of order, or public welfare, and even in that case, the fundamental principles to be observed by the State in the legislation that limits the fundamental rights of the people are declared by prescribing that the essential contents of the freedom and rights may not be infringed upon. Therefore, the legislation that limits the fundamental rights of the people is justifiable for the legislative purpose, the appropriateness of the method to achieve the purpose of the legislation, the minimum degree of damage caused by the legislation, and the balance between the public interest to be protected by the legislation and the private interest infringed upon by the legislation, and the law or the provision that does not comply with the legislation

Generally, unlike the freedom of religion, the freedom of religious activities can be regulated relatively more for the public interest purpose than for the freedom of religion, but the means should be appropriate for accomplishing the purpose and should not exceed the necessary level.

(C) Appropriateness of the legitimacy and method of the legislative purpose of the proposed legal provision

1. Legislative purpose and legitimacy thereof

The purpose of Article 1 of the School Health Act is to prescribe the legislative purpose of the School Health Act to protect and promote the health of students and teaching staff by prescribing matters necessary for the health care and the environmental sanitation cleanup of schools. In light of the enactment background and legislative purpose of the School Health Act, the legislative purpose of the provision is to prevent harmful environment within the minimum scope of a certain area surrounding the school, which is the main activity space of students, and to ensure the efficiency of school education by preventing harmful environment within the scope thereof, and by preparing a peaceful and healthy environment for students, and ultimately, the legislative purpose is the legitimate legislative purpose for public welfare.

(2) Appropriateness of methods.

Our society is surrounded by a large harmful environment. In particular, the harmful environment around the school still remains in serious condition despite the self-help efforts of the school side and the authorities. Therefore, the designation of the area surrounding the school, which is the center of the students' life, as the Cleanup Zone and the prohibition of installation of harmful facilities in the zone is an appropriate method to ensure the students' peace and a healthy environment and to prepare a healthy environment. If the charnel facilities are established in the school environmental sanitation and cleanup zone without any regulation, it can serve as a harmful facility to the health of the students and the teaching staff. Therefore, it can be functioned as an appropriate means to restrict part of the installation of facilities.

(3) Whether the least infringement principle is violated

The reason why the provision of the Act on the Request is added to the facilities prohibited from being installed within the school environmental sanitation and cleanup zone is that there is a charnel facility, and rather than because there is an adverse influence on the education of students, it seems that the charnel facility affects the health of students and school personnel. Among the facilities prohibited by each subparagraph of Article 6(1) of the School Health Act, the facilities prohibited from being installed for the said reason include slaughterhouses (No. 3), crematorium (No. 5), waste disposal facilities (No. 6), animal carcasses treatment facilities (No. 7), livestock carcasses treatment facilities (no. 9), and livestock markets (No. 9), and livestock markets (No. 9).

(b) However, it is difficult to view that a charnel facility installed in a religious assembly hall as a type of religious facility has the nature of a religious facility unlike other general charnel facilities, and thus, it does not adversely affect the health of students and teaching staff to the same extent as those likely to affect the health of students and teaching staff, such as a slaughterhouse, crematorium, waste disposal facility, and a body disposal facility of livestock. Moreover, even before the establishment of a legal provision subject to the proposal, the school environmental sanitation and cleanup zone was generally a residential area or a student facility protection zone, and it was not possible to install all charnel facilities, but is allowed only to install a charnel house installed in a religious assembly hall (such as a church, church, etc.) pursuant to the Acts and subordinate statutes pertaining to funeral services, etc. In addition, it is difficult to view that a charnel facility installed in a religious assembly hall as a type of religious facility does not have the nature of a religious facility, which exceptionally permits installation as part of the freedom of religion, and that such facility does not seriously interfere with the purpose of protecting the peaceful living environment, protecting the sound living environment, or designating it as a school facility.

Nevertheless, Article 15(1) of the Act provides that “A person shall be punished by imprisonment with labor for a certain period of time and by imprisonment with labor for a certain period of time and by imprisonment with labor for a certain period of time and by imprisonment with labor for a certain period of time and by imprisonment with labor for a certain period of time and by imprisonment with labor for a certain period of time and by imprisonment with labor for a certain period of time and by imprisonment with labor for a certain period of time.”

After all, the provision of the law subject to proposal violates the freedom of religion beyond the minimum necessary level to achieve the legislative purpose, violates the principle of balance of legal interests, and there are reasonable grounds to suspect that it violates the principle of cultural state guaranteed by the Constitution.

4 L. L. L.

It is also true that it is difficult to accept the installation of a ductal facility near a school in which juveniles who have weak military power and arbitrative power are present in our dwelling, regardless of whether the ductal facility is a facility detrimental to us.

However, even though we need to consider only once we do not think of the dead space that is not unrelated to death or that it is a remote future, we need to think that we do not think about it only once we do not think that it is a job for them.As we can be an opportunity to think more depth about the meaning of death even for juveniles, we can be the head of education depending on the use of the charnel facilities. The means to prevent the pelpel facilities installed in the school environmental sanitation and cleanup zone from being changed into the facilities harmful to the health of students and school personnel, such as the provision of the law subject to the request, should be sought by any other means rather than finding the whole prohibition of installation.

5. Conclusion

If so, it is decided as per the decision of the court below in order to seek an adjudication on the constitutionality of the provision of the law.

Judges Central Public-Private Partnership (Presiding Judge) Dozers