• The Korean Society of Law and Medicine
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• v.23 no.3
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• pp.139-207
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• 2022

As various state restrictions on individual freedom were imposed during the COVID-19 pandemic, concerns have been raised that excessive infringements on fundamental rights were indiscriminately permitted based on the public interest of preventing infectious diseases. Therefore, the question of how to set acceptable limits of liberty restrictions on individuals has emerged. However, since the phenomenon of infections spreading to the population is only predicted statistically, how to deal with the risk of the infected individual as a subject of legal analysis has become a problem. In the absence of a theoretical framework of legal analysis of risk, the risk of infected individuals during the pandemic was not analyzed strictly, and proportionality review of infection prevention measures was often only an abstract comparison of the importance of public interest and individual rights. Therefore, this research aims to conduct a theoretical review on how risk can be conceptualized legally in a public health crisis, and to develop a theoretical framework for proportionality review of the risk of liberty-limiting measures during a pandemic. Chapter 2 analyzes the legal philosophical concepts of risk, which are the basis for liberty restrictions during a public health crisis, and applies and extends them to the pandemic. Chapter 3 reviews previous studies related to liberty restriction measures in the context of the COVID-19 pandemic, and points out they have a limitation that specific criteria for the proportionality review of public health measures in the pandemic have not been presented. Accordingly, Chapter 3 specifies the methodological framework for proportionality review, referring to the theoretical discussion on risks in Chapter 2. Chapter 4 reviews the legitimacy of gathering restriction orders, applying the theoretical discussion in Chapter 2 and the criteria for proportionality review established in Chapter 3. In particular, Section 4 examines logic of proportionality review in judicial precedents over the ban on gathering restrictions implemented in the COVID-19 pandemic. In analyzing the precedents, the logic of proportionality review in each case is critically reviewed and reconstructed based on the theoretical framework presented in this research.