KLRI : KOREA LEGISLATION RESEARCH INSTITUTE

Ⅰ. Backgrounds and Purposes

▶ General Evaluation of K-Quarantine

○ It is evaluated that Korea have been responding to Covid-19 successfully compared to the developed countries such as the United States and EU countries worldwide.

- In terms of objective figures such as confirmed cases and deaths, and the vaccination rates, Korea is assessed to be carrying out a Covid-19 quarantine policy effectively.

○ There are two major policies making a great role on K-Quarantine; social distancing policy and active 3T policy. 

- K-Quarantine which includes social distancing policy is based on law - especially Disaster and Safety Act and Infectious Disease Prevention Act and various legal orders and administrative rules base on them.

▶ Purpose of the Study

○ In order to determine whether K-Quarantine in general was literally successful, systematic legislative evaluation using rigorous academic methods should be conducted, not satisfying impressive evaluation. This study strictly analyzes and evaluates how law related to K-Quarantine, especially Infectious Disease Prevention Act, have been implemented in the pandemic.

 

Ⅱ. Major Contents

▶ Analysis of the Current Status and Policies Related to Covid-19, Social Survey

○ Current status of confirmed cases, death and cured patients, vaccinations and medical response both domestic and abroad

○ An analysis on social distancing, providing personal information and other policies which related to the issue

- Social distancing policy targets the entire society. It has a general and uniform character as the object of discipline for all members of the society. On the other hand, information disclosure, ‘3T’, targets individual patients, facilities and spaces infected with covid-19 and has an individual and specific character.

- In terms of time, Covid-19 response policies can be divided into three levels.

▶ The Suitability of Standard Evaluation of Infectious Disease Prevention Act (Form)

○ Analyzing principles on the suitability of standard of Law 

- Principle of the rule of law administration, Appropriateness of subordinate laws, Principle of proportion, Principle of clarity, Principle of due process

○ Analysis on the suitability of standard of Infectious Disease Prevention Act 

- ‘Limit or ban gathering’ policy related to social distancing, expansion of application for suspected infectious disease, disclosure of information on confirmed cases, compulsory disposition of suspected and infectious disease patients, expansion of preventive measures for infectious diseases, strengthening of penalties, etc.

▶ The Effectiveness of Standard Evaluation of Infectious Disease Prevention Act (Contents)

○ Infectious Disease Prevention Act Claus 49, which is directly related to social distancing policy, had been revised several times to response to Covid-19 pandemic, and it is to make a legal basis on individual orders on social distancing policy.

- A step-by-step method was used to adjust the intensity of intervention in society to suit the Covid-19 pandemic, which changed in various ways as social distancing progressed. It has been transformed into a method that in subdivided on the one hand and simplified on the other. In short, in order to appropriately reduce the complexity of the pandemic, it has evolved in the direction of appropriately increasing the complexity of social distancing itself.

- Social distancing policy can be explained an emergency rule to limit human right significantly. Therefore, it should be employed only in urgent cases that fall under exceptional circumstances (justification of purpose) and only to the extent necessary (principle of proportionality) based on law (legal reservation) 

○ The Quarantine policy is includes the process of identifying people who have had close contact with or who may have come into close contact with a confirmed patient who is the starting point of an infectious disease, and have that people undergo a test. This involves determining the behavior of a particular person, who has been where and at what time.

- It is reasonable that this corresponds to the processing of personal information,  because it identifies a specific person and uses the person’s behavior as the reason for identification. In addition, after the outbreak of an infectious disease, an epidemiological investigation is conducted as a representative preventive measure, which makes the processing of personal information a key element.

 

Ⅲ. Expected Effects

▶ Personal Freedom Vs. Community Safety 

○ To provide proper guidelines and make them compulsory to community for preventing infectious disease according to Infectious Disease Prevention Act is essential to keep community safe, but it is also concerned to restrict personal freedom at the same time. 

- K-Quarantine is explained as a good example in terms of response to Covid-19 worldwide. On the other hand, it is described as a by-product of Korean Collectivism which allows surveillance, control and care from government, and as a cost for personal freedom.

▶ Evaluation of  Social Distancing Policy

○ It is recognized that social distancing policy receives justification of the purpose at the point of a measure in the pandemic and it satisfies legal reservation of legal basis, Infectious Disease Prevention Act clause 49. Moreover, it is admitted as an effective means to contain the spread of Covid-19 to a large extent, and it also satisfies the requirement of the principle of proportionality, considering that the overall restriction on conduct was not implemented as much as possible or in a reduced form.

- However, it is a limitation that the Infectious Disease Prevention Act does not directly stipulate general regulations on social distancing, requirements for issuing social distancing, and observance of the principle of proportionality. Although provisions related to social distancing are provisionally justified as a means of urgently coping with exceptional circumstances, but their effect is not permanent. Therefore, measures based on the Infectious Disease Prevention Act can be implemented very seriously and only for an absolutely necessary period, and an exit strategy for those measures must be prepared together.  

▶ Evaluation of information disclosure and personal information protection

○ One of the key points on success of K-Quarantine is using ICT technology for processing personal information in the pandemic. However, it is difficult to say that the law is fully considered to protect the personal information and privacy of data subjects as the law was amended at a time when public anxiety was maximized during the crisis of pandemic. In addition, the related regulations are often rough and do not adequately balance the benefits involved, or are excessively biased toward quarantine. 

- Nevertheless, some of these criticisms have been accepted through various social controversies over the past two years, and guidelines have been partially improved. In the future, the experience of responding to infectious diseases needs to be systematically reflected in legislation, whether it is to increase the efficiency of quarantine or to protect other rights and interests, such as personal information and privacy.