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No-smoking Zone and Right to Smoke Cigarette
   (16-2(A) KCCR 355, 2003Hun-Ma457, August 26, 2004)
   Held, the National Health Promotion Act Enforcement Rule mandating the owner of the facilities used by the public to designate a
no-smoking zone is constitutional.
Background of the Case
   The National Health Promotion Act provides that the owner, the occupier or the manager of certain facilities as determined by the order issued by the Ministry of Health and Welfare should either designate the entire facility as a no-smoking zone or partition and designate a distinct no-smoking zone and smoking zone. Pursuant thereto, the provision at issue in this case determines in detail the facilities where the owners thereof or certain other individuals should designate no-smoking zone therein to include schools,
medical institutions, and facilities for public performance. The complainant filed the constitutional complaint in this case, claiming that this provision violated the human dignity and value, the right
to pursue happiness, and the right to privacy.
Summary of the Decision
   The Constitutional Court, in the unanimous opinion of all justices, has dismissed the constitutional complaint on its merits, holding that the provision at issue in this case is not in violation of the Constitution. The summary of the grounds for the Court's
decision is stated in the following paragraphs.
   1. The right to freely smoke cigarettes is recognized based upon the human dignity and the right to pursue happiness under Article 10 of the Constitution and the right to privacy under Article 17 of the Constitution. The provision at issue in this case restricts the right to smoke cigarettes by designating the facilities used by the
public where smoking is not permitted.
   2. The right to avert cigarette smoking, which is the right of the non-smokers to not smoke and to be free from cigarette smoking, is also based upon Article 10 and Article 17 of the Constitution, as well as the right to smoke cigarettes. In addition, the right to avert cigarette smoking is also recognized based upon the constitutionally guaranteed right to health and right to life, in the sense that the health and life of the non-smokers who are
exposed to indirect cigarette smoking is endangered.
   There is no collision between the basic rights in the case where the smoker smokes cigarette in a way not affecting the non-smoker at all. However, the act of cigarette smoking in a space where the smoker and the non-smoker are together inevitably causes the
collision of the basic rights of the smoker and the non-smoker.
   In such a case, as the right to avert cigarette smoking is based not only upon the right to privacy but also upon the right to life which is the premise of all basic rights and lies at the highest position, the right to avert cigarette smoking is the basic right of the higher position compared with the right to smoke cigarettes. Where there is a collision between the basic rights one of which is superior to the other in hierarchy, the basic right in inferior position may be restricted pursuant to the principle of priority of the basic right in superior position. Therefore, in conclusion, the right to smoke cigarette may be recognized to the extent that it does not
violate the right to avert cigarette smoking.
   3. Furthermore, cigarette smoking concerns the public welfare
common to the entire citizenry beyond the private interest of the individuals, in that cigarette smoking harms the health of the public including the smokers themselves and harms the environment by polluting the air. Therefore, pursuant to Section 2 of Article 37 of the Constitution that permits the restriction of the freedom and the right of the individuals for the sake of public welfare, cigarette
smoking may be restricted by statute.
   4. The provision at issue in this case has a legitimate purpose as it is for the protection of the health of the citizenry, and designating the no-smoking zone in places where the smokers and the non-smokers share their lives is an effective and appropriate means. The public interest of the health of the citizenry is greater than the private interest of the right to smoke cigarettes restricted thereby, and the provision at issue in this case specifically limits the scope of and the prerequisites for the facilities used by the public to be designated as the no-smoking zone. Therefore, the provision at issue in this case is not in violation of the principle of
prohibition against excessive restriction.