taxation.”
47
In this case, the provision employing aggregate taxation of households
in imposing comprehensive real-estate taxes is declared to contradict Article 36 ,
Section 1 , of the Constitution, which ensures marriage and family life, because
such a taxation system discriminated between married and non-married couples
without important public interest.
Freedom of occupation
Article 15 of the Constitution guarantees the freedom to choose occupation. It is
well established that this freedom to choose occupation means the freedom of
occupation, which may be employed to protect the freedom of occupational
activities. Simultaneously, it is also generally accepted that in terms of regulatory
balancing, the freedom to choose occupation is given relatively higher protection
in comparison with the freedom of occupational activities in the sense that the
KCC shows a greater deference to the legislature in adopting regulations on
occupation when the latter rather than the former is at stake in constitutional
review.
48
However, this dichotomy is a relative distinction in that a supposedly
stricter review regarding the freedom to choose occupation seldom results in a
decision of unconstitutionality. For example, in a 2008 case where the freedom to
choose occupation was concerned, the KCC held constitutional a law prohibiting
those who are not visually handicapped from applying for qualification as a
massager.
49
This decision is a dramatic reversal of the KCC’s previous position in
a 2006 case where substantively the same regulation was declared unconstitutional
though the object of review was different because the 2006 case concerned a
departmental decree instead of an Act.^50 However, in another 2008 case, the
KCC invalidated a couple of provisions in the Broadcasting Act and accompanying
enforcement decree giving only the Korea Broadcasting Advertising Corporation
and commercial broadcast marketing agencies financed by the corporation permis-
sion to function as agencies in the terrestrial broadcasting marketing business, on
the ground that they violated the claimant’s equality rights as well as freedom of
occupational operation.^51
In the KCC jurisprudence, the right to occupational operation includes the right
to business operation. Article 104 and Article 142 of the Copyright Act impose a
(^47) Constitutional Court Decision 2006 Hun-Ba 112 , 2007 Hun-Ba 71 · 88 · 94 , 2008 Hun-Ba 3 · 62 ,
2008 Hun-Ka 12 (consolidated), November 13 , 2008 ,Korean Constitutional Court Reports,
Vol. 20 ,No 2 , Part 2 , 1.
(^48) See Constitutional Court Decision 2002 Hun-Ba 41 , October 28 , 2004 ,Korean Constitu-
tional Court Reports, Vol. 16 ,No 2 , Part 2 , 138.
(^49) Constitutional Court Decision 2006 Hun-Ma 1098 , October 30 , 2008 ,Korean Constitu-
tional Court Reports, Vol. 20 ,No 2 , Part 1 , 1089.
(^50) Constitutional Court Decision 2003 Hun-Ma 715 , 2006 Hun-Ma 368 (consolidated), May 25 ,
2006 ,Korean Constitutional Court Reports, Vol. 18 ,No 1 , Part 2 , 112.
(^51) Constitutional Court Decision 2006 Hun-Ma 352 , November 27 , 2008 ,Korean Constitu-
tional Court Reports, Vol. 20 ,No 2 , Part 2 , 367.