혐연권의 기본권성에 관한 연구

다국어 초록 (Multilingual Abstract)

Smoker and none smoker's rights are recognized constitutional rights according to the decision of the Constitutional Court of Korea. But there is a argument whether smoker and none smoker's rights are constitutional or fundamental rights in the United States. It is very important whether a right is fundamental or not, because fundamental rights deserve more protection than do other rights and when a state statute implicating a fundamental right is challenged, the Court applies the strict scrutiny standard of review.
In general smoking was distinguishable from rights such as marriage, procreation, contraception, family relationships, child rearing, and education, all of which were previously recognized as fundamental by the Supreme Court. If smoking is deemed not to be a fundamental right, the state police power would authorized its regulation. So a large number of states and over seventy municipalities have legislation banning smoking in public workplaces, restaurants, and bars under the authority of their police powers. Opponents of smoking bans are arguing that smoking bans should not be permitted on the basis of takings, freedom of association and assembly, freedom of speech, equal protection, and privacy and liberty, not on the basis of fundamental right. But the Court rejected argument that the smoking bans infringed all these smoker's rights because the smoking bans are substantially related to protecting people from the health risks of secondhand smoke, a legitimate governmental interest, the regulations will survive court review.
In conclusion, smoking is a right, even though it is not a constitutional or fundamental right, so may be restricted to a certain extent by legislation. None smoker's rights have not been the subject of litigation whether these are constitutional rights or not.