Constitutional Court Upholds Medical Law Provision Restricting Massage Therapist Qualification to 'Visually Impaired'

Constitutional Court Grand Bench.

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] The Constitutional Court has ruled that the Medical Service Act provision restricting massage therapists' qualifications to those who are 'visually impaired' under the Welfare of Disabled Persons Act and have completed certain education or training courses, and criminally punishing those without massage therapist qualifications who perform massages for profit, does not violate the Constitution.

On the 30th, the Constitutional Court announced that it unanimously upheld the constitutionality of the case filed by Mr. A and others, who operated massage parlors as non-visually impaired persons, claiming infringement of freedom of occupation and equality rights.

The Medical Service Act provisions upheld by the Constitutional Court include: ▲ the phrase 'among the visually impaired under the Welfare of Disabled Persons Act' in Article 82(1), which stipulates that only visually impaired persons can be recognized as qualified massage therapists; ▲ the application of Article 33(2)(1) in Article 82(3), which prohibits non-massage therapists from opening massage parlors or massage centers; and ▲ Article 88(3), which punishes non-massage therapists who perform massages for profit with imprisonment of up to three years or a fine of up to 30 million won.

The Constitutional Court stated, "It is true that the qualification provision monopolizing the massage business to visually impaired persons restricts the general public's freedom to choose their occupation," but added, "Since massage is almost the only occupation that visually impaired persons can normally pursue, the visually impaired massage therapist system can be seen as an inevitable choice to guarantee the livelihood of visually impaired persons."

Furthermore, the Court noted, "Unlike visually impaired persons, non-disabled persons have relatively greater educational opportunities and a considerably wider range and types of occupations available besides massage. In particular, physical therapists, who have similarities to massage therapists, acquire qualifications through a series of training and examinations and can work in that field. Considering this, it cannot be said that other ways to choose massage or similar procedures as a profession are completely blocked."

The Court concluded, "Therefore, it is difficult to view the qualification and establishment provisions in this case as excessively infringing on the freedom of occupation and equality rights of non-visually impaired persons."

Regarding the criminal penalty provision in Article 88(3) of the Medical Service Act, the Court judged, "Although this penalty provision stipulates both fines and imprisonment, it does not set a lower limit but limits the upper limit to imprisonment of up to three years or a fine of up to 30 million won. Considering that depending on the nature of the offense, fines or suspended sentences may be imposed, it cannot be considered unconstitutional for violating the principle of proportionality between responsibility and punishment."

Among the justices who issued the constitutional ruling (dismissal), Justice Lee Young-jin stated, "We must seriously consider the aspect that the freedom of occupation of non-visually impaired persons is fundamentally blocked by objective requirements unrelated to the individual's ability or qualifications," and added, "While allowing non-visually impaired persons to engage in the massage business, legislative improvements are needed to reduce restrictions on the freedom of occupation of non-visually impaired persons by expanding health and welfare-related facilities where visually impaired massage therapists can be employed beyond massage parlors or massage centers to include public health centers, elderly welfare facilities, and facilities for the disabled, thereby guaranteeing the livelihood of visually impaired persons." This was a supplementary opinion.

This is not the first constitutional challenge related to the qualifications of massage therapists.

In particular, in 2006, the Constitutional Court ruled unconstitutional the 'Rules on Massage Therapists' Article 3(1)(1) and (2) parts referring to 'persons who cannot see'?which, like the current Medical Service Act Article 82, restrict qualifications to visually impaired persons?on grounds of violating the principle of legal reservation or infringing on freedom of occupation.

This led to protests and even deaths among visually impaired massage therapists, and eventually, the National Assembly passed an amendment to the Medical Service Act to newly establish the provisions that the Constitutional Court had declared unconstitutional due to lack of legal delegation in the Rules on Massage Therapists.

Since then, several constitutional challenges have been filed with the Constitutional Court regarding the Medical Service Act provisions limiting massage therapists to visually impaired persons and the penalty provisions, but the Court has consistently maintained its stance of constitutionality.

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