학교보건법상의 금지시설인 호텔에 대한 법리적 검토 - 관광진흥법상의 예외규정과의 비교를 중심으로 -

Clause 6 (1) of School Health Act stipulated prohibited acts and facilities in school environmental sanitation and cleanup zone as a general rule and allowed acts and facilities exceptionally in case where the school environmental sanitation and cleanup committee ratifies such acts and facilities do not have adverse influence on learning, school health and sanitation in the cleanup zone. It is understandable why those acts and facilities are prohibited in Clause 6 (1) of School Health Act by its self-explanatory names listed therein. However, ‘hotel’ as one of prohibited facilities in Clause 6 (1) of School Health Act is considered as one and prohibited as a whole even if ‘hotel’ is viewed as various types, meanings and categories in other laws. In an adjudication case on constitutionality of statute regarding unconstitutionality of adding ‘hotel’ to item 13 of Clause 6 (1) of School Health Act, the Supreme Court held that such Clause does not excessively infringe freedom to conduct business or property rights and not against principle of excess prohibition, and further does not infringe principle of clarity (the Supreme Court 2012. 6. 28. 2012ah35 kyul-jung). Notwithstanding the foregoing adjudication by the Supreme Court, debatable opinions have been raised in the government whether it is necessary to prohibit all hotels from constructing in cleanup zone as a rule or it is necessary to have exceptional clause, and eventually Tourism Promotion Act and Enforcement Decree of the Tourism Promotion Act were amended on December 22, 2015 wherein Clause 6 (1)(13) of School Health Act does not apply to certain tourism-accommodation facilities satisfying all conditions required in newly added Clause 16 (7) of Tourism Promotion Act and Clause 14-2 of Enforcement Decree of the Tourism Promotion Act, which provides exception in Clause 6 (1)(13) of School Health Act by amending other law (i.e., Tourism Promotion Act) not by amending School Health Act. Hotels exist in various types, meanings and categories in other laws as opposed to other prohibited facilities listed in School Health Act, and the form of its management and operation and grades are not the same. Therefore, treating all hotels as the same as a whole is not appropriate. As we have experienced in movie theater case, it is not impracticable to standardize exceptions in hotel by applying consistent and firm classification. For that reason, exceptional clause in Tourism Promotion Act has positive aspect. One thing however to point out is that exceptional clause in Tourism Promotion Act weighs too much on external elements of the facility, such as number of rooms, location and distance to school, etc. It is important to note that the form of operation, such as love hotel, etc. has been an issue more than external elements of the hotel. Even if we can predict how the form of operation will be by looking at external elements of the hotel, but that does not mean external elements dictate form of operation. If there is probability of certain form of operation in hotel to adversely influence on learning, school health and sanitation, complementary measures to restrain adverse influence prior to construction of hotel is important. Therefore, it is required to continue studying on complementary measures by reviewing the hotel cases reflecting exceptional clause of Tourism Promotion Act. Further, for the hotels, not applicable to exceptional clause of Tourism Promotion Act, and subject to deliberation by the school environmental sanitation and cleanup committee pursuant to Clause 6 (1) of School Health Act, it is critical to a) have in-depth deliberation by the school environmental sanitation and cleanup committee by acknowledging variety of hotel and uniqueness of its facility as such; b) expand the pool of experts to include experts in various fields of facilities to the committee; and c) actively make reference to deliberation rules and regulations (i.e., Order of the Ministry of Education) in deliberation by the school environmental sanitation and cleanup committee. Such in-depth deliberation by the school environmental sanitation and cleanup committee gives rise to satisfying legitimacy of School Health Act pursuing protection of school students as well as balancing by assuring property rights and freedom to conduct business limiting by School Health Act.