대형마트 영업시간 규제의 헌법적 정당성 및 입법론적 한계

This article examines the constitutional legitimacy and legislative limitations of regulations on business hours and mandatory closing days imposed on large-scale retail stores under Article 12-2 of the Distribution Industry Development Act of Korea. Although these regulations were introduced to protect small merchants, ensure workers’ health rights, and establish a sound distribution order, they directly restrict multiple fundamental rights, including the freedom of occupation, property rights, equality, and consumers’ freedom of choice. The Supreme Court and the Constitutional Court of Korea have upheld the constitutionality of these measures, grounding their decisions in the principle of economic democratization enshrined in Article 119(2) of the Constitution. However, this paper argues that the premises underlying those constitutional judgments have been substantially undermined by structural changes in the retail market over the past decade, particularly the rapid expansion of online and mobile-based e-commerce. Empirical studies indicate that mandatory closing days for large retail stores have tended to accelerate a shift in consumer spending toward online platforms rather than revitalizing traditional markets. As a result, the effectiveness of the regulation in achieving its stated objectives has significantly diminished, raising serious constitutional concerns regarding the suitability of the regulatory means and the principle of minimal infringement. Applying the four-step proportionality test—legitimacy of purpose, suitability of means, necessity, and proportionality in the strict sense—this article critically reassesses the current regulatory framework. Particular attention is given to the legislature’s failure to adequately predict and evaluate the effects of online consumption shifts at the time of enactment, which constitutes a neglect of its duty of investigation and forecasting. Furthermore, by conducting a comparative analysis of retail regulation systems in Germany, France, and Japan, this paper explores alternative legislative models better aligned with contemporary market realities. Ultimately, the article contends that the existing regulation has entered a phase in which its constitutional justification can no longer be sustained without significant reform, and it proposes normative and legislative implications for reconstructing retail regulation in conformity with constitutional principles.