생존권과 직업선택의 자유의 충돌 – 안마사 자격 제한에 대한 일련의 헌재 결정을 중심으로 –

초록

The current Medical Service Act exclusively grants masseur licenses only to the visually impaired and criminally punishes non-visually impaired individuals who engage in the massage business. This regulation causes a sharp conflict between constitutional fundamental rights: “the visually impaired's right to live with human dignity (Right to Subsistence)” and “the non-visually impaired general public's freedom to choose one's occupation (Freedom Right).” The Constitutional Court, regarding the controversy over unconstitutionality consistently raised since 2003, has maintained a consistent ruling of constitutionality from its 2008 decision through to its most recent decision in 2021. These decisions possess significant meaning as they go beyond merely judging the infringement of individual fundamental rights, establishing the constitutional nature of the right to subsistence in a situation where the state's measures to guarantee subsistence restrict the fundamental rights of other citizens. Furthermore, they offer implications regarding the structure and method of judgment that should be adopted for concrete determination when the right to subsistence conflicts with other freedom rights. The summary of these points is as follows. 1. The guarantee of the right to subsistence must be understood organically within the overall social welfare system, requiring comprehensive review including consideration of alternatives. 2. The scope of the right to subsistence demands an active interpretation that encompasses qualitative aspects beyond the minimum material standard of living. 3. The right to subsistence is based on a concrete consensus for collective response to social risks, and its level of realization varies according to objective and subjective circumstances. 4. Given that the right to subsistence presupposes a concrete human condition facing social risks, it must be approached from the perspective of achieving substantive equality. 5. The priority of the right to subsistence over the freedom right cannot be argued in the abstract but must be judged by weighing its relationship with the freedom right under specific, given circumstances. 6. Since the balance of the entire welfare system can be disrupted by an unconstitutionality ruling on individual legislation, a cautious approach is required when evaluating effective alternatives. 7. The evaluation and judgment of current conditions and statistics must be supported by logical and rational social science methodologies, and the verifiability of the judgment must be ensured. 8. The Constitutional Court must exercise caution in the form of its decisions, and relevant state organs must pay attention to grasping the implications of the reasoning for the decision.

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