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KMID : 0986720200280020149
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Korean Journal of Medicine and Law
2020 Volume.28 No. 2 p.149 ~ p.173
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Review of issues in order to commence business under the medical law
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Lee Jung-Won
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Abstract
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On August 28 of this year, the Minister of Health and Welfare issued an order to commence business under the second medical law in history to medical workers across the country who went on strike. Under the Medical Law, an order to commence business is an order that instructs medical personnel and hospital openers who have suspended medical treatment or hospital operation to conduct business activities. The order to commence business is the exercise of public power that can strongly limit freedom of action and occupation by forcing the state to work for the public interest to citizens with specific occupations, and by stipulating that criminal penalties are possible if they refuse to do so. Since the basic rights of the people are limited and criminal punishment is possible in case of violating the order, it is necessary to ensure the predictability of the persons subject to the order by clearly defining the situation where the order is issued and punishment, and to prevent abuse of the state's public power. Nevertheless, the content of the order to commence business under the current medical law is too abstract or incomplete in the requirements for initiation, procedures, and justifiable reasons for refusal, so the state can exercise the right to commence business so that it is virtually unlimited, and the medical personnel's legitimate expression of intention, strike right, and management rights (property rights) Event), etc. may be seriously infringed.
This study is to examine the problems of the current system and to prepare improvement measures to protect the basic rights of medical personnel while keeping the legislative purpose.
Specific research methods were conducted by analyzing cases of business commencement orders issued once before, comparing them with similar order systems stipulated in other laws, regulations on the restriction of basic rights under the constitution, and reviewing court precedents. Through this study, the current system's problems will be uncovered and improvement measures will be investigated so that the legitimate rights and interests of medical personnel can be guaranteed while protecting the public's health.
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KEYWORD
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Medical law, doctor, order to commence business, strike, Basic rights infringement
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