The court found the law’s designation of certain outdoor spaces as non-smoking zones “does not excessively restrict the general freedom of action for smokers in violation of the principle of prohibiting excessive regulation.” (Image courtesy of Yonhap)
SEOUL, May 6 (Korea Bizwire) – A smoker fined for lighting up in a designated non-smoking area has failed in a constitutional challenge after the country’s highest courts upheld the citation, ruling that public health interests outweigh individual freedom to smoke outdoors.
On April 25, the Constitutional Court unanimously dismissed a petition filed by a man identified only as Mr. A, who argued that part of Article 9.8 of the National Health Promotion Act violated his constitutional rights.
The court found the law’s designation of certain outdoor spaces as non-smoking zones “does not excessively restrict the general freedom of action for smokers in violation of the principle of prohibiting excessive regulation.”
In January 2019, Mr. A was caught smoking on a bench in an outdoor plaza at the BEXCO convention center in Busan and fined 50,000 won by enforcement officials. The area, part of an office building complex over 1,000 square meters, was designated a non-smoking zone under the health promotion law.
After exhausting appeals up to the Supreme Court, where the fine was ultimately upheld, Mr. A filed for a constitutional review of the legal provision itself, arguing it was unconstitutional. When lower courts rejected his request, he petitioned the Constitutional Court directly.
Mr. A contended that because cigarette smoke dissipates more readily outdoors compared to indoor spaces, “it is an excessive restriction to designate all such areas as non-smoking zones and impose a no-smoking obligation” given the reduced second-hand smoke risk.
But the court cited its 2004 ruling that the “need to protect those who do not wish to be exposed to second-hand smoke outweighs guaranteeing freedom to smoke,” finding the public interest in promoting health “outweighs the private interest of smokers being restricted.”
While acknowledging “the risk of second-hand smoke may not be completely eliminated outdoors or in outdoor-like spaces,” the court noted physical barriers cannot “perfectly block cigarette smoke even when operating separate smoking and non-smoking areas” — especially in public venues with high foot traffic.
It added the law “does not completely block smoking itself” but only imposes location-based restrictions, allowing designated indoor smoking areas under Health Ministry regulations as “partial protection of smoking rights.”
M. H. Lee (mhlee@koreabizwire.com)
