2010No654 Violation of the Medical Service Act

1. Stambling0 (68****** 1*******) and sports massage business

Residential Month-gu OOdong 00

Gyeong-nam District 00, Dog-ri 000

2. History00 (66*******1********) and employees

Housing Daegu-gu OOdong 00

Daegu-gu 00 Dong 000

3.O00 (65****** 1*******) * employee,

Daegu 00, 000

Daegu Central District Court 00 Dong 000

4. Kim 00 (76****** 1*******) * employee,

Housing Daegu Dong-dong OOdong 00

00 Dong-dong 000 000

5. Gangwon-dol0 (81****** 1****** *) and employees.

Daegu OOdong 000

Reference domicile, Daegu-dong 000

Defendants

Kim Tae-ray

Daegu District Court Decision 2009 High Court Decision 1883 Decided February 3, 2010

August 5, 2010

All appeals by the Defendants are dismissed.

1. Summary of grounds for appeal;

① A sports massage operated by the Defendants does not fall under the case where only the visually disabled persons can take place, and ② even if it is difficult to view a family sports massage hall as a type of operation different from the massage, math or spherical pressure, etc. set by the limit of his/her business, the court below found the Defendants guilty of the charges of this case by misapprehending the legal principles, which affected the conclusion of the judgment, by misapprehending the legal principles.

2. Determination

A. According to the evidence duly adopted and examined by the lower court, Defendant 2, who is not a massage club, has five times his/her life in the instant business establishment, and is still employed by four employees, such as Defendant 00, 00, Kim 00, and so on, who do not have the recognition of the qualifications of the massage club, and who take charge of, or utilize, telegraph with an unspecified customer’s hand, and who unsatisfys off the 30,000 won or 10,000 won per person for, the so-called general sports massage, and thus, cannot be found as having been found to have been subject to criminal punishment (see, e.g., Supreme Court Decision 200Du8261, Apr. 2, 200). The remaining physical acts of the visually disabled, such as the Act on the Protection of Persons with Disabilities, are deemed to have been prohibited by the Act on the Protection of Persons with Disabilities and the Act on the Protection of Persons with Disabilities, and thus, cannot be seen as an inevitable act of physical pressure, etc.

Other alternatives to ensure the livelihood of the visually disabled persons are not adequate when allowing non-disabled persons to hold a massage position, and the visually disabled persons shall be treated favorably in order to realize substantial equality as a minority subject to discrimination in daily life, such as education and employment, etc. on a historical basis.

Considering that there is a need to take action, it is stipulated as a part of the welfare book for the visually disabled at the constitutional request as part of the policy of the welfare for the visually disabled. The Medical Service Act provides a proper balancing of various situations surrounding the visually disabled and the non- visually disabled upon the constitutional request of the guarantee of the right to survival of the visually disabled. It cannot be viewed as discrimination against the principle of proportionality compared to the visually disabled, and it is difficult to view it as violation of the Constitution by excessively infringing the freedom of occupation of the non- visually disabled (the Constitutional Court Decision 2006Hun-Ma1098, Oct. 30, 2008, 116).

1117 (Consolidation) Decision, 2008Hun-Ma664 through 675 (Consolidation Order, etc.) decided July 29, 2010, will be made.

Thus, the defendants' assertion that the above provision of the Medical Service Act is in violation of the Constitution and is not effective, and therefore, the facts charged in this case cannot be accepted merely because it is an independent opinion.

3. Conclusion

Therefore, since all appeals by the defendants are without merit, they are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judge Lee Jae-soo

Judges Yellow-gu

Judges Kim Gin-han