감염병 예방과 관리에 관한 형사처벌조항의 현황과 과제

초록

The Infectious Disease Prevention Act(hereinafter “IDPA”) imposes various obligations on the public, such as quarantine, hospitalization or treatment, testing, and provision of personal information, for the prevention and management of COVID-19. Criminal punishments are imposed for violations of these obligations. However, in order to criminally punish acts or nonperformances that may impede the quarantine or risk the spread of COVID-19, “the principle of legality” in the criminal law should be observed. It is unclear whether COVID-19 is Class 1 infectious disease in IDPA. COVID-19 is not individually listed in ‘Class 1 infectious disease’ of Article 2, No. 2 of IDPA. It is also questionable whether COVID-19 falls under the ‘novel infectious disease syndrome’. Therefore, it is necessary to revise IDPA and define ‘COVID-19’ as one of ‘Class 1 infectious diseases’. In this study, I judge the legitimacy of the clauses of criminal punishments related to the violations of these obligations based on the practical criminal concept of what constitutes a crime and the precautionary principle supporting the legitimacy of criminal punishment in terms of prevention and management of infectious diseases, and the principle of limiting Husak's overcriminalization. As a result, the criminal punishment clause for refusal to quarantine is justifiable, and the criminal punishment clause for refusal of treatment is unjustifiable, except in situations where quarantine for infectious disease patients is not performed. It is concluded that the criminal penalty clauses related to refusal of investigation and refusal of provision of personal information should be changed to an administrative fine for negligence. In order to prevent COVID-19 and its spread, there is a need to restrict the actions of patients with infectious diseases and those suspected of having infectious diseases and impose the appropriate obligations to them. However, we should not rely upon criminal punishments as a means of enforcing the obligations. According to “the supplementary principle” in the criminal law, criminal punishment should be the last resort, not the first and foremost means of preventing COVID-19.

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