코로나 19시대의 영업의 자유와 재산권

Abstract

The pandemic situation caused by the world-wide spread of the COVID-19 has created a crisis that has made it difficult to protect the lives and health of citizens in various states around the world. Containment measures that have restricted fundamental rights, such as like lockdowns, quarantine measures, and implementation and adjusting of social distancing – all according to the degree of coronavirus infection – are increasing the difficulties citizens face in their economic, social and cultural lives. States’ suspension and restrictions on stores and business facilities that are extremely sensitive to the spread of viral infection are causing enormous business losses for these business owners. A crisis has emerged due to the failure to guarantee basic property rights as economic rights and rights of minimum subsistence as social rights. This is arising from the failure to enforce compensation for what could be infringement of property rights in the constitution. As the Korean government determined that their COVID-19-related business restrictions are in principle legal and essential for the protection of lives and healthcare of citizens, it did not stipulate that citizens have the right to claim compensation under the Act on the Prevention and Management of Infectious Diseases, or similar rights based on the general state liability law. Consequently, it is necessary to for judicial review to determine whether this undesirable legislative inadequacy is justified in terms of constitutional theory and practice. In this regard, on January 5, 2021, civic groups such as the Merchant's Meeting, Association of Lawyers for a Democratic Society's Economic Committee, and Hope Headquarters for Participation Solidarity, and business owners such as pubs and PC rooms held a press conference in front of the Korean Constitutional Court in Jae-dong, Jongno-gu, Seoul. They urged that compensation regulation for losses of small and medium-sized merchants arising from business restrictions implemented to prevent the spread of COVID-19 and to prepare countermeasures to support them must be enshrined in the the Act on the Prevention and Management of Infectious Diseases. They immediately filed a constitutional complaint with the Constitutional Court. The Korean central government and local government bodies have imposed legal containment measures, such as business restrictions, business bans, or collective restrictions, which severely restrict the freedom of business, which is a basic constitutional right. The Korean Infectious Disease Prevention Act and local government notices have not provided legal provisions for compensation for the impact of such dispositions on small and medium-sized merchants and self-employed people. The impacted businesses argued that their basic rights, such as property rights, were infringed due to such legislative omission or inadequacy. In this regard, the ruling party and the government of Korea are trying to draft legislative bills and come up with various relief package programs and solutions, but these loss compensation regulations are still not legislated. This restraint and insufficiency of government’s efforts to enact compensation clause for losses arising from the restrictions on basic rights of citizens due to the containment measures of COVID-19 in Korea cannot be viewed as desirable. The following question may be raised regarding this unsatisfactory legislative insufficiency: the question of whether the compensation provisions under the Act on the Prevention and Management of Infectious Diseases in Korea meet minimum standards to guarantee basic rights under the constitution. If economic rights, including property rights and freedom of business, are severely restricted by business restrictions and prohibitions due to the pandemic situation, legislators must enact clause to mitigate the impact of their unbearable fundamental rights restrictions. In other words, the legislature has a constitutional obligation to prepare adjustment compensation provisions (Ausgleichsregelungen) for special sacrifices beyond the scope of social binding of property rights. In a situation where the Korean Constitutional Court, or other courts' precedents related to this, have not yet appeared in detail, it is very important to examine this issue from a constitutional perspective. States’ suspension and restrictions on stores and business facilities that are extremely sensitive to the spread of viral infection are causing enormous business losses for these business owners. A crisis has emerged due to the failure to guarantee basic property rights as economic rights and rights of minimum subsistence as social rights. This is arising from the failure to enforce compensation for what could be infringement of property rights in the constitution. As the Korean government determined that their COVID-19-related business restrictions are in principle legal and essential for the protection of lives and healthcare of citizens, it did not stipulate that citizens have the right to claim compensation under the Act on the Prevention and Management of Infectious Diseases, or similar rights based on the general state liability law. Consequently, it is necessary to for judicial review to determine whether this undesirable legislative inadequacy is justified in terms of constitutional theory and practice. In this regard, on January 5, 2021, civic groups such as the Merchant's Meeting, Association of Lawyers for a Democratic Society's Economic Committee, and Hope Headquarters for Participation Solidarity, and business owners such as pubs and PC rooms held a press conference in front of the Korean Constitutional Court in Jae-dong, Jongno-gu, Seoul. They urged that compensation regulation for losses of small and medium-sized merchants arising from business restrictions implemented to prevent the spread of COVID-19 and to prepare countermeasures to support them must be enshrined in the the Act on the Prevention and Management of Infectious Diseases. They immediately filed a constitutional complaint with the Constitutional Court. The Korean central government and local government bodies have imposed legal containment measures, such as business restrictions, business bans, or collective restrictions, which severely restrict the freedom of business, which is a basic constitutional right. The Korean Infectious Disease Prevention Act and local government notices have not provided legal provisions for compensation for the impact of such dispositions on small and medium-sized merchants and self-employed people. The impacted businesses argued that their basic rights, such as property rights, were infringed due to such legislative omission or inadequacy. In this regard, the ruling party and the government of Korea are trying to draft legislative bills and come up with various relief package programs and solutions, but these loss compensation regulations are still not legislated. This restraint and insufficiency of government’s efforts to enact compensation clause for losses arising from the restrictions on basic rights of citizens due to the containment measures of COVID-19 in Korea cannot be viewed as desirable. The following question may be raised regarding this unsatisfactory legislative insufficiency: the question of whether the compensation provisions under the Act on the Prevention and Management of Infectious Diseases in Korea meet minimum standards to guarantee basic rights under the constitution. If economic rights, including property rights and freedom of business, are severely restricted by business restrictions and prohibitions due to the pandemic situation, legislators must enact clause to mitigate the impact of their unbearable fundamental rights restrictions. In other words, the legislature has a constitutional obligation to prepare adjustment compensation provisions (Ausgleichsregelungen) for special sacrifices beyond the scope of social binding of property rights. In a situation where the Korean Constitutional Court, or other courts' precedents related to this, have not yet appeared in detail, it is very important to examine this issue from a constitutional perspective.