헌법상 직업의 자유에 관한 연구 - 직업선택의 자유와 자격제도와의 관계를 고찰하며 -

In order to be eligible for the constitutional occupation, it was common that the three elements of the concept of ‘means of living’, ‘continuity’, and ‘public harmlessness’ were necessary. ‘Public harmlessness’ means that if an activity is a constitutional profession, it is a socially acceptable income activity that is not harmful to the public. On the other hand, the Korean Constitutional Court does not refer to public harmlessness as a conceptual element of occupation. If the Constitution limits the occupation to an ‘allowed’ act, the public harmlessness can only be judged based on the prohibition provisions of the law. The law prohibits the establishment of occupational concepts in the Constitution and establishes the protection areas of occupational freedom. The Constitutional Court of Korea classified the freedom of occupational choice by ‘subjective reasons’ and freedom of occupational choice by ‘objective reasons’ among the ‘3 stage theory’ developed by the Apotheken-Urteil of the Federal Constitutional Court of Germany. Under the German Constitutional Law, the freedom of occupational choice is not limited by law. In order to address the special circumstances of the German Constitution, the Federal Constitutional Court of Germany has devised ‘3 stage theory’ to limit the freedom of occupational choice. However, in Korean Constitution, not only the freedom of occupational activity but also the freedom of occupational choice can be restricted by the Article 37 (2), so there seems to be no room for ‘3 stage theory’ to be applied in our constitutional system. The Constitutional Court of Korea is stipulating that a more strict justification is required because the seriousness of the infringement is greater when limiting the freedom of occupational choice by objective reasons than when limiting the freedom of occupational activity by subjective reasons. It does not explain what the ‘strict justification’ is and what it demands from the practice of the Constitutional Court. Depending on the degree of relevance between qualification and occupational choice, there are two categories: First, you can qualify, but you can choose to do it without a license. Second, qualification acquisition is directly linked to occupational choice. In this case, generally, an occupational license system is established. If the acquisition of qualifications is not inevitable with the occupational choice, and if the acquisition of qualifications gives only the possibility of occupational choice, the prohibition principle (relaxed examination standard) may be applied, It is reasonable to apply the strict examination standard (proportionality principle) when it is directly connected with occupational choice and restricted by law.