Whether a person who engages in massage without obtaining an recognition of qualification may not be punished on the ground that the Constitutional Court made a decision of unconstitutionality on Article 3 of the Rules concerning Marine (negative)

Articles 61(1), 67, and 70 of the former Medical Service Act (amended by Act No. 8007 of September 27, 2006)

Constitutional Court en banc Order 2003Hun-Ma715, 2006Hun-Ma368 (Consolidated) Decided May 25, 2006 (Hun-Gong16, 825)

Defendant 1 and one other

Defendants

Changwon District Court Decision 2006No1209 decided Dec. 28, 2006

All appeals are dismissed.

Article 61 of the former Medical Service Act (amended by Act No. 8007 of September 27, 2006; hereinafter referred to as the "Act") provides that a person who intends to be a massage shall obtain recognition of qualification from the Mayor/Do Governor (paragraph (1)), and that a massage accredited may engage in massage business notwithstanding the provisions of Article 25 ( Paragraph (2) and that recognition of qualification for a massage shall be prescribed by Ordinance of the Ministry of Health and Welfare ( Paragraph (4). Article 67 of the Act provides that a person who conducts massage for profit without obtaining recognition of qualification for a massage under Article 61 (1) shall be punished. Article 3 of the Rules on Mano-Mano-Ma715 of May 25, 2006; Article 67 of the Act provides that a person who conducts massage for profit-making purposes is not subject to the decision of the Constitutional Court unconstitutionality of Article 61 (1) of the Act, and thus, is not subject to the punishment of a person who is not recognized as a massage for profit-making purposes (Article 61 of the Act).

In the same purport, the court below determined that the defendants' act of massageing for profit without being recognized as a Marine's qualification constitutes a violation of Articles 67, 61 (1), and 70 of the Act and subject to punishment. In light of the above legal principles and records, the above measures of the court below are proper, and there are no errors in the misapprehension of legal principles as to the legitimacy of the constitutional system and the separation of powers, as alleged in the grounds of appeal

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)