감염병예방법에 따른 형사처벌에 대한 비판적 검토와 입법 방향

Abstract

With the emergence of Corona Virus as a major epidemic around the world, the fear of coronavirus infection puts the value of public health and safety at an absolute advantage in society. In the social atmosphere that has gained such an absolute value, it is easy to accept strong measures and sanctions for the prevention of infectious diseases. The Infectious Disease Prevention Act, which is the basis for these measures and sanctions, has been amended seven times since the outbreak of the coronavirus in November 2019. The Infectious Disease Prevention Act was amended to strengthen the authority of the Minister of Disease Control, heads of local governments compared to the past, and to create or strengthen criminal penalties to enforce administrative measures under those authority. In criminal punishment provisions of the Infectious Disease Prevention Act, many of them are stipulated as sanctions for non-fulfillment of obligations under the Administrative order. From the point of view of administrative law, punishment is viewed as an effective means that can be used to achieve administrative purposes. The effectiveness of the quarantine effect that can be obtained quickly is an important value. However, from the point of view of criminal law, when the means of punishment is applied to certain norms, there is a need for a fierce debate about the necessity of punishment rather than efficiency. Therefore, in the application of the Criminal Act to the non-fulfillment of obligations under the Administrative order, it is necessary to harmonize at the point of contact between the effectiveness of achieving the administrative purpose and the legitimacy of the Criminal Act. In this thesis, I intend to critically reconsider the criminal punishment of the Infectious Disease Prevention Act and seek a legislative direction. Rather than punishing all acts broadly, it is appropriate to directly and specifically infringe on the protection of public health and the function of the quarantine system, and to regulate only those acts that include moral code of conduct as the subject of criminal punishment. In addition, it is necessary to prepare objective and explicit standards that limit the discretion of the administrative agency in order to secure the clarity of the components subject to criminal punishment, and differentiate the illegality of actions according to this standard.