바닥면적, 설치시점에 따른 장애인 편의시설 접근권 제한 - 서울중앙지방법원 2022. 2. 10. 선고 2018가합524424 판결 중 확정된 편의점 가맹본부를 상대로 한 청구 부분을 중심으로 -

Abstract

The court ruled that the contents of Appendix 1 of the Enforcement Decree of the Act on Convenience for Persons with Disabilities, which exempted the obligation to install accessibility facilities for retail stores with a floor area of less than 300㎡ (adopted as the scope of facilities obligated to provide reasonable accommodation under the Enforcement Decree of the Act on Prohibition of Discrimination Against Persons with Disabilities), exceeded the scope of delegation under the parent law and violated the right to pursuit of happiness, the right to general freedom of action, and equality of persons with disabilities, and was therefore unconstitutional and illegal. The fact that more than 98%(as of 2019) of convenience stores, which are the most representative retail stores, had a floor area of less than 300㎡, served as an important argument. According to general legal principles, if the constitutionality and legality of the exemption provision for accessibility facilities for retail stores with a floor area of less than 300㎡ were to be determined by the Supreme Court, a decision by the full bench of the Supreme Court would be required, and if the constitutionality and legality of the exemption provision were confirmed by the Supreme Court, an official notification and publication procedure would be applied, in which the Minister of the Interior and Safety would be notified of the decision and the decision would be published in the Official Gazette, even if the unconstitutionality and illegality of the order or rule was confirmed in the civil litigation process. While it is the prevailing view that the declaration of invalidity of orders and rules in the concrete normative control procedure does not have a general binding effect, it generally produces a de facto general binding effect because such claims of unconstitutionality and illegality can be continuously asserted without restriction in subsequent lawsuits, and since the Supreme Court's ruling has confirmed the unconstitutionality and illegality, it is difficult to change the conclusion. In the case of franchise convenience stores, the conclusion of the decision that the franchise headquarters is also an administrator who is obligated to install accessibility facilities was well-founded. This conclusion was based on the premise that a tenant who operates a convenience store by renting a facility can also be included as an administrator. The court examined whether the undue burden defense was recognized, and dismissed the defense, but the undue burden defense should not be recognized for accessibility facilities that are statutorily prescribed in advance, and the reasons and procedures for the relaxation of the standards for accessibility facilities established separately in the Act on Convenience for Persons with Disabilities had to be followed. While recognizing the obligation to install accessibility facilities, the court also recognizes alternative measures such as providing portable ramps or purchasing assistance services through call bells and employees when installation is impossible or significantly difficult. These alternative measures could not be generally recognized, and only in the case where the enforcement decree regarding the area standard of less than 300㎡ is invalid due to unconstitutionality or illegality, and the obligation to install accessibility facilities is imposed in a pseudo-retroactive manner on facilities that have already been built, they should have been recognized only as an exception in terms of the principle of good faith and equitable considerations. Since then, the floor area standard for retail stores, etc. has been lowered to 50㎡ or more, but the area restriction has not been completely abolished; the 300㎡ standard is still applied to convenience stores installed before the enforcement of the revised Enforcement Decree; the concept of "alteration" triggering pseudo-retroactive obligations for accessibility facilities has been narrowed in the case of the lowered area restriction standard; and the scope of accessibility facilities recognized for retail stores, etc. with the floor area of 50㎡ or more is insufficient. While these issues may be addressed through subsequent litigation, essentially, legislative improvements are needed to revise the Enforcement Decree of the Act on Convenience for Persons with Disabilities and to establish detailed transitional provisions, including grandfather clauses.