자격제도와 직업의 자유－ 자격제도를 통한 직업의 자유 제한의 체계 및 위헌심사기준 －

Abstract

‘Qualifications System', allowing a person who has acquired a certain qualification to choose an occupation where such occupation deals with people's life, health and safety, or requires professional knowledge and technology, is implemented. Korean Constitutional Court decided that “in establishing the qualifications system on the professional field, the legislature may freely structure its contents by considering its purpose and in accordance with the policy- making decision. Accordingly, the decision of the legislature should be respected unless the content of qualifications system is explicitly unreasonable and unfair." In the same context, the Constitutional Court has applied more moderate standard of review than one with general cases which limit the freedom of occupation. However, it is unreasonable to determine cases in standardized way by applying the same rules merely because of the qualifications system. The Court must apply the above standard of review for the fundamental matters(essential matters which involve in the formation of qualifications system) such as the establishment of qualification requirements and the scope of the qualification's effect. Otherwise(where the purpose or contents of the limitation is not originated from the qualifications system itself), the Court should apply the balance review pursuant to the Constitution of Korea Article 37 (2) by considering the purpose or necessity of the limitation, nature and contents of the limited occupation, and degrees or methods of the limitation because in such case, it is not different from the general occupation.