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지원사업
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커뮤니티
연구자들이 자신의 연구와 전문성을 널리 알리고, 새로운 협력의 기회를 만들 수 있는 네트워킹 공간이에요.
초록·키워드
It can be generally recognized that the purpose of the provisions of Article 9 of the National Health Promotion Act and Article 7 of the Enforcement Rule of the said Act is justifiable since the Articles aim at the protection of the people, and the properness of the manner is also recognized because the establishment of no-smoking area on some conditions at the places that smokers and non-smokers share for their daily life is effective and proper to achieve the purpose of the law. Furthermore, the balance of the benefit and the protection of the law is also acceptable since the national health, which is the public interest that the aforesaid Articles pursue to promote, is more valuable than the right to smoke, which is a restrictive private interest.
In addition, although the aforesaid Articles provide that the entirety of certain facilities shall be designated as no-smoking area, such facilities are limited to: The nursery facilities and the buildings within the bounds of the schools under the provisions of the Elementary and Secondary Education Act, taking into consideration the fact that tobacco is more seriously harmful to children and the youth whose cells and organs are still in the stage of development; and the medical institutions, public health centers, public medical centers, and public health sub-centers where absolute tranquility and sound environment are required for medical treatment.
In the light of the facts that the facilities which shall designate part of themselves as no-smoking area are the places where the general public get together and so there is a greater need to designate them as no-smoking area, and that the Articles at issue in this case clearly provide that the factors to be examined for the designation of no-smoking area include whether or not there is a potential risk to cause harms to the youth, patients, or children, or whether or not there is a likelihood of causing harms to the visitors as well as the occupants thereof, and therefore the Articles do not impose the duty to designate no-smoking area at the facilities that apparently fall under one of the facilities specified in the subparagraphs applicable to this case, if there is no actual harm to the public, it can be concluded that the aforesaid Articles do not contravene the principle of proportionality since the Articles restrict smokers' right to smoke at a minimum degree.
The substantive core of the right to smoke is the freedom of private life, whereas non-smoker' right to avoid fumes is connected directly to the right to life, let alone the freedom of private life. Thus non-smoker's right to avoid fumes is more superior than smoker's right to smoke. Where there is a collision between fundamental rights at different levels of the hierarchial order like this case, the fundamental right at less importance may be restricted in accordance with the principle of the priority of the superior fundamental right. In conclusion, smoker's right to smoke shall be recognized only to the extent it does not encroach on non-smoker's right to avoid fumes.
In addition, although the aforesaid Articles provide that the entirety of certain facilities shall be designated as no-smoking area, such facilities are limited to: The nursery facilities and the buildings within the bounds of the schools under the provisions of the Elementary and Secondary Education Act, taking into consideration the fact that tobacco is more seriously harmful to children and the youth whose cells and organs are still in the stage of development; and the medical institutions, public health centers, public medical centers, and public health sub-centers where absolute tranquility and sound environment are required for medical treatment.
In the light of the facts that the facilities which shall designate part of themselves as no-smoking area are the places where the general public get together and so there is a greater need to designate them as no-smoking area, and that the Articles at issue in this case clearly provide that the factors to be examined for the designation of no-smoking area include whether or not there is a potential risk to cause harms to the youth, patients, or children, or whether or not there is a likelihood of causing harms to the visitors as well as the occupants thereof, and therefore the Articles do not impose the duty to designate no-smoking area at the facilities that apparently fall under one of the facilities specified in the subparagraphs applicable to this case, if there is no actual harm to the public, it can be concluded that the aforesaid Articles do not contravene the principle of proportionality since the Articles restrict smokers' right to smoke at a minimum degree.
The substantive core of the right to smoke is the freedom of private life, whereas non-smoker' right to avoid fumes is connected directly to the right to life, let alone the freedom of private life. Thus non-smoker's right to avoid fumes is more superior than smoker's right to smoke. Where there is a collision between fundamental rights at different levels of the hierarchial order like this case, the fundamental right at less importance may be restricted in accordance with the principle of the priority of the superior fundamental right. In conclusion, smoker's right to smoke shall be recognized only to the extent it does not encroach on non-smoker's right to avoid fumes.
본문·목차
인공지능 문자 인식 모델을 통해 추출된 텍스트로, 일부 오타나 오류가 포함될 수 있으나 지속적으로 개선 중입니다.
오류를 발견하셨다면 해당 부분을 드래그한 후 ' 를 통해 신고해주세요.
오류를 발견하셨다면 해당 부분을 드래그한 후 ' 를 통해 신고해주세요.
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UCI(KEPA) : I410-ECN-0101-2009-360-018419250
