“Is it Constitutional for Corporations to Be Prohibited from Opening Optical Shops?”... Public Hearing Concluded Today at the Constitutional Court

Dispute Over Article 12, Paragraph 1 of the Medical Technician Act Prohibiting Corporations from Opening Optical Shops

Constitutional Court Grand Bench./Photo by Jinhyung Kang aymsdream@

[Asia Economy Reporter Choi Seok-jin] A public hearing was held at the Constitutional Court regarding the constitutionality of the current legal provision that prohibits corporations from opening optical shops by allowing only opticians to establish or operate businesses that make or sell eyeglasses.

On the afternoon of the 14th, the Constitutional Court held a public hearing in the grand courtroom on the constitutional review case concerning Article 12, Paragraph 1 of the Medical Technicians Act, which stipulates that only opticians can open optical shops.

Professor Jeong Gwang-hyun of Hanyang University Law School, who appeared as a witness for the petitioner, pointed out, "This provision is intended to protect the vested interests of existing opticians, undermining the freedom of occupation, which includes the freedom of competition, and contradicts the economic order of our Constitution that respects economic freedom and creativity of individuals and enterprises."

He continued, "It is a serious restriction on the freedom of occupation to discriminate against one group unfavorably to favor another, erect barriers to entry for other groups, and even use penalties to block employment opportunities altogether, despite all groups having the same ability and qualifications to perform the occupation."

On the other hand, Yoon Il-gyeong, Ethics Director of the Korea Opticians Association and a witness for the Ministry of Health and Welfare, a stakeholder, argued, "The work of opticians involves providing health care services to prevent deterioration of eye health by using equipment for vision tests and eyeglass lens processing. If the establishment of optical shops is not restricted to opticians, the work will be subordinated to capital logic, leading to the collapse of the eye health service system."

He also added, "We must protect jobs at small optical shops and prevent closures caused by the entry of profit-seeking, corporatized, and large-scale optical shops."

The contested provision, Article 12, Paragraph 1 of the Medical Technicians Act (regarding the registration of optical shops), states, "Only opticians may prepare eyeglasses or open shops selling eyeglasses and contact lenses (hereinafter referred to as 'optical shops')." Article 30, Paragraph 1 of the same law stipulates that violations are punishable by imprisonment of up to three years or a fine of up to 10 million won.

Opticians Heo and Lee established Corporation A for the purpose of wholesale and retail of eyeglass frames and franchise business, opening and operating nine optical shops as directly managed stores. They were prosecuted and, in the first trial in December 2016, sentenced to six months imprisonment with a two-year probation and 160 hours of community service. Corporation A, established by Heo, was also fined 20 million won.

Heo and others appealed the first trial verdict and, during the appeal trial, requested the court to submit a constitutional review. The court judged that the constitutionality of Article 12, Paragraph 1 of the Medical Technicians Act was a prerequisite for determining the guilt or innocence of Heo and others, and that there was a substantial reason to suspect unconstitutionality. Therefore, in October 2017, the court referred the constitutional review to the Constitutional Court.

Heo and others argue that the provision confuses the purpose of the optician licensing system and the regulatory reasons for the establishment of optical shops, and unlike other professions, completely prohibits corporations from opening optical shops, thereby infringing on the freedom of occupation of corporations composed solely of opticians, the freedom of occupation of individual opticians to open corporate optical shops, equality rights, and freedom of association.

On the other hand, the Ministry of Health and Welfare, a stakeholder, argues that even if corporate optical shops are prohibited, the domestic optical industry market is already saturated, and consumers can choose eyeglasses at prices lower than overseas, so the possibility of fundamental rights infringement is low. However, allowing corporate optical shops could cause significant adverse effects on public eye health and consumer welfare.

The Constitutional Court plans to determine the constitutionality of the contested provision based on the arguments of both parties and the testimonies of witnesses presented on the day.

This content was produced with the assistance of AI translation services.