The Reluctance and Contradiction of National Duty of Protecting the Disadvantaged Groups - Rethinking the Case of Prohibition against the Non-vision Impaired to Engage in Massage Business -

서지정보

· 발행기관 : 한국비교공법학회
· 수록지 정보 : 공법학연구 / 12권 / 3호 / 3 ~ 25페이지
· 저자명 : Chen, Shin-Min

초록

As a modern country acknowledges that it is unavoidable duty of government to pay the special attention to the disadvantaged groups, it is not merely a legal duty but a moral one. The Korean and ROC (Taiwan) Constitutions confirm such obligation without any hesitation. But in the daily political process it is not an easy task as the Constitutions described or desired.
The Korean Case may be satisfied by most citizens with sympathy to the disadvantaged fellow people. That is also the main critics from the Taiwan society after the Constitutional Court has revealed this vision-impaired hostile decision. However, the quarrels on the affirmative action for the vision-impaired have been out of the stage? Or it remains to be a never ending story? In my opinion, as the Taiwan Court has once consider that the diversities of massage service in modern day, including the massage in Chinese traditional medicine way, the massage in herb, the massage in perfume, and the different purpose for massage, such as for medical rehabilitation、body relaxation and even the fashioned body slimmer. These expansions of massage service need not only the pure finger technique as the traditional massager but also require a lot of financial investment and special training. So the restriction of massage market in Korea seems to remain unsolved.
Looking back Taiwan case, the three-year sunset term is closed to end. But it seems to us that the Agency has not made any active measures to secure the working opportunity for the vision-impaired. The story about the national duty for the disadvantaged groups like the vision-impaired obviously exists in an empty name. The decision of the Taiwan Constitutional Court used the said strict scrutiny test to check the Prohibition law should be commended as unjust, as there would have no national special duty for protecting the vision-impaired.
The dispute about the prohibition-dilemma reminds me of an English dialogue: a bird in hand is better than 10 birds in woods, it is the same to handle the secure working opportunity of the vision-impaired. It also reminds me of a very famous American Justice named Harry A. Blackman who once said; in order to treat some persons equally, we must treat them differently.
Therefore it is my opinion that the government has the possibility to offer more working opportunity by enacting the so-called compulsory employment policy; namely, all hospitals public or private over some scales have the legal obligations to establish the massage section and provide the huge working possibility available for the vision-impaired. Maybe this could be the answer to resolve the problem properly

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