• The Korean Society of Law and Medicine
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• v.21 no.2
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• pp.105-162
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• 2020

In the pandemic of infectious disease, restrictions of individual liberty have been justified in the name of public health and public interest. In March 2020, the National Assembly of the Republic of Korea passed the revised bill of the 「Infectious Disease Control and Prevention Act.」 The revised bill newly established the legal basis for forced testing and disclosure of the information of confirmed cases, and also raised the penalties for violation of self-isolation and treatment refusal. This paper examines whether and how these individual liberty limiting clauses be justified, and if so on what ethical and philosophical grounds. The authors propose the theories of the philosophy of law related to the justifiability of liberty-limiting measures by the state and conceptualized the dual-aspect of applying the liberty-limiting principle to the infected patient. In COVID-19 pandemic crisis, the infected person became the 'Patient as Victim and Vector (PVV)' that posits itself on the overlapping area of 'harm to self' and 'harm to others.' In order to apply the liberty-limiting principle proposed by Joel Feinberg to a pandemic with uncertainties, it is necessary to extend the harm principle from 'harm' to 'risk'. Under the crisis with many uncertainties like COVID-19 pandemic, this shift from 'harm' to 'risk' justifies the state's preemptive limitation on individual liberty based on the precautionary principle. This, at the same time, raises concerns of overcriminalization, i.e., too much limitation of individual liberty without sufficient grounds. In this article, we aim to propose principles regarding how to balance between the precautionary principle for preemptive restrictions of liberty and the concerns of overcriminalization. Public health crisis such as the COVID-19 pandemic requires a population approach where the 'population' rather than an 'individual' works as a unit of analysis. We propose the second expansion of the harm principle to be applied to 'population' in order to deal with the public interest and public health. The new concept 'risk to population,' derived from the two arguments stated above, should be introduced to explain the public health crisis like COVID-19 pandemic. We theorize 'the extended harm principle' to include the 'risk to population' as a third liberty-limiting principle following 'harm to others' and 'harm to self.' Lastly, we examine whether the restriction of liberty of the revised 「Infectious Disease Control and Prevention Act」 can be justified under the extended harm principle. First, we conclude that forced isolation of the infected patient could be justified in a pandemic situation by satisfying the 'risk to the population.' Secondly, the forced examination of COVID-19 does not violate the extended harm principle either, based on the high infectivity of asymptomatic infected people to others. Thirdly, however, the provision of forced treatment can not be justified, not only under the traditional harm principle but also under the extended harm principle. Therefore it is necessary to include additional clauses in the provision in order to justify the punishment of treatment refusal even in a pandemic.