When studying math or science, I've heard many times that the process of solving a problem is more important than the conclusion.

As a reporter who reports on legal issues, I once thought that I could tell a similar story about the verdict.

This is because court judgments have similarities in that they arrive at specific conclusions through specific logical developments.



Regarding the three recently sentenced cases related to the suspension of the quarantine pass, it is especially meaningful to look at the logical process that led to the decision as well as the conclusion.

While it is expected that people will continue to apply for suspension of enforcement in relation to the quarantine pass, what are the constitutional issues surrounding the quarantine pass, why did the legal issues dictated the scope of the decision to suspend the quarantine pass? This is because it is important to examine whether the criticism that the court's decision was 'mismatched' is appropriate.



In this coverage file, we analyze the decision related to the suspension of the execution of the three quarantine passes that have been sentenced as of January 16, 2022.

The 2021A13365 Case sentenced by the 8th Division of the Seoul Administrative Court on January 4, 2022, the 2021A13539 Case sentenced by the 4th Seoul Administrative Court on January 14, 2022, and the 13th Division of the Seoul Administrative Court on the same day It is the 2022 Ah 10052 case that was sentenced.

Let's take a look at each issue in as much detail as possible with all three decisions, and compare what each decision means.


How was the conclusion different?

First, let's take a brief look at how the conclusions of the three cases, to be precise, the "order" differed.



○ Seoul Administrative Court's 8th Division on January 4 (hereinafter "January 4th 8th Case")


: Suspension of disposition of quarantine passes for private institutes, reading rooms, and study cafes



"Special decision made by the Minister of Health and Welfare on December 3, 2021 Among the follow-up measures for quarantine measures, the part that includes private institutes, reading rooms, and study cafes as facilities for which the quarantine pass is mandatory will be suspended until the date of the verdict on the main case.”




○ January 14 Seoul Administrative Court Sentencing 4th Division (“January 14th Part 4 Case”)


: Suspension of quarantine passes for stores, marts, and department stores limited to Seoul, 12-year-olds 18 years old only in Seoul Suspension of disposition of quarantine pass application



"In the Seoul Metropolitan Government Announcement No. 2022-007 announced on January 3, 2022 by the Seoul Metropolitan Government, 'stores, marts, department stores' and '18 years old and over' among 17 facilities for which quarantine passes are mandatory "Measures to expand the application of quarantine pass for persons under the age of three" will be suspended until the 30th day from the date of the judgment on the main case."




○ The 13th Seoul Administrative Court sentenced case on January 14th (“January 14th 13th case”)


: Application for suspension of execution rejected



“3, "The application to suspend the effect of the quarantine pass application for large-scale stores over 000 square meters has been rejected"




There are three main reasons for such a different conclusion.

First, the purpose of the application in the three cases was different.

In other words, the scope of disposition of the quarantine pass that required suspension was different.

Second, the administrative agencies that the applicants in the three cases defined as the subject of the suspension were different.

Finally, there were different judgments about the effectiveness of the quarantine pass and the public interest to be achieved by the quarantine pass and the degree of fundamental rights infringed by the quarantine pass.



So, let's take a closer look at the differences between the three events with respect to the three points.



What kind of quarantine pass were you trying to stop?

- Difference in purpose of application

○ Purpose of application for the 8th case on January 4th


Please stop the disposition of quarantine passes for private institutes, reading rooms, and study cafes.



→ Applicant: Joint Private Education Association, National Association of Teachers and Parents, etc.



→ Court Judgment: Quotation (all applications are accepted)




○ Purpose of application for the 4th case on January 14


- The head of the Korea Centers for Disease Control and Prevention, the Minister of Health and Welfare, and the Mayor of Seoul must apply the quarantine pass Please suspend the effect of the mandatory application of the quarantine pass for 10 types of facilities among the 17 types of facilities designated as ('Shops/Marts/Department Stores', 'Restaurants/Cafes', 'Cinema Theater/Performance Hall', 'Multi Room', 'PC Room', 'Sports Game (indoor)', 'Museum/Art Museum/Science Hall') , 'library', '


indoor

sports facility', 'party room', etc.)



→ Applicant: 1,023 people including Professor Jo Doo-hyung, Yeungnam University Medical School

→ Judge’s



judgment: Partial citation (only part of the application is accepted)


The disposition of '' is a mutual measure between administrative agencies and cannot be subject to administrative litigation.


- Among the dispositions of the mayor of Seoul, '' Only the disposition of applying the quarantine pass to 'stores, marts and department stores' is suspended.


- Among the dispositions of the mayor of Seoul, the effect of extending the 12-18 year olds to the target of the quarantine pass will also be suspended.




○ The purpose of the application for the 13th case on January 14th is that


the Minister of Health and Welfare's measures to apply the quarantine pass to large stores larger than 3,000 square meters should be stopped



→ Applicant: Revolution 21 (outside party), Mr. A (unvaccinated)



→ Judge's decision: All of Mr. A's applications were rejected (the application of Revolution 21, an out-of-house party, was dismissed because it was judged that he was not qualified as an applicant)




The above is a brief summary of the purpose of the application in the three cases and the judgments of each court.

Just by looking at this, the scope of the quarantine pass measures being dealt with in the three cases are different, and one of the reasons for the different conclusions of the three cases is that the purpose of the application, that is, the scope of the quarantine pass in question is different.



However, in this case, there was also a situation in which legal issues influence the scope of the quarantine pass, which is subject to suspension.

As mentioned briefly above, depending on who the applicants requested the suspension of enforcement (in this case, the suspension of the disposition of the quarantine pass) and the judgment of whether the disposition of the other party can be the subject of administrative litigation, in reality, The difference has occurred.

It is also worth noting that different judges reached opposite conclusions on the same issue.


Against whom did you file a suspension of enforcement action?

○ Respondent in the 8th case on January 4th (= administrative agency that filed a lawsuit against the applicant)


1. Director of the Korea Centers for Disease Control and Prevention


2. Minister of Health and Welfare




○ Respondent of the 4th case on January 14th


1. Director of the Korea Centers for Disease Control and Prevention


2. Health Minister of Health and Welfare


3. Mayor of Seoul




○ Respondent of the 13th case of January 14th


1. Minister of Health and Welfare




There are three major administrative agencies (administrative agencies) related to the quarantine pass.

The Korea Centers for Disease Control and Prevention, the Ministry of Health and Welfare, and local governments.

However, administrative litigation seeking suspension of execution must be filed by designating the administrative agency that carried out the administrative disposition in question. A lawsuit was filed, and the applicants in the case sentenced by the 4th part of the Seoul Administrative Court on January 14th filed a lawsuit against the Director of the Korea Centers for Disease Control and Prevention, the Minister of Health and Welfare, and the Mayor of Seoul.

On the same day, the applicants in the case sentenced by the 13th Division of the Seoul Administrative Court only brought a lawsuit against the Minister of Health and Welfare.


You can think of this as a simple litigation technical issue.

However, if you look at the decision, there is a big difference in reality depending on the difference in judgment about whether the disposition of the litigation opponent (the respondent) designated by the applicant can be the subject of an administrative litigation.


Whose disposition can be subject to suspension?

In the end, in order for the court to decide to suspend execution (suspension of effect), first of all, the action of the administrative agency that is the opponent of the lawsuit must have the qualifications (qualification) to be the subject of administrative lawsuits. If the action of the institution designated as the counterpart to the lawsuit (the respondent) is not a disposition that can be the subject of administrative litigation, the application for suspension of execution will be dismissed. Each of the three tribunals reached this conclusion in this regard.




○ Judgment regarding the respondent in the 8th case on January 4th


- Action by the Director of the Korea Centers for Disease Control and Prevention: Cannot be subject to administrative litigation → Application for suspension of execution rejected


- Action by the Minister of Health and Welfare: May be subject to administrative litigation → Suspension of execution Citation of application




○ Judgment regarding the respondent in the 4th case of January 14


- Action by the Director of the Korea Centers for Disease Control and Prevention: Cannot be subject to administrative litigation → Application for suspension of execution rejected


- Action by the Minister of Health and Welfare: Cannot be subject to administrative litigation → Rejection of

application for suspension of execution


- Measures of the Mayor of Seoul: May be subject to administrative litigation → Partial citation of application for suspension of execution (only the parts determined by the court to be justifiable after reviewing the purpose of the application against the mayor of Seoul are accepted)




○ January 14 Judgment regarding the respondent in the 13th case


- Action by the Minister of Health and Welfare: May be subject to administrative litigation → Rejection of application for suspension of execution (Measures taken by the Minister of Health and Welfare may be subject to administrative litigation. As a result of review, it was judged that there was no reason, so they did not accept all of them)




It is noteworthy that the conclusions of Parts 8 and 13 of the Seoul Administrative Court on whether the quarantine pass-related measures of the Minister of Health and Welfare can be subject to administrative litigation are consistent (they may be subject to administrative litigation), while the Seoul Administrative Court Part 4 is that it is making a different judgment (which cannot be subject to administrative litigation).



The reason this issue is important is that it has a decisive effect on the scope of the quarantine pass that will be suspended and who will be sued in the future. As judged by the 8th and 13th parts of the Seoul Administrative Court, if the measures related to the quarantine pass by the Minister of Health and Welfare can be the subject of administrative litigation, if the court decides to suspend the execution of the measures related to the quarantine pass, the effect will be equally applied nationwide. This is because the measures of the Minister of Health and Welfare themselves were nationwide. On the other hand, if it is determined that the action of the Minister of Health and Welfare cannot be the subject of an administrative litigation seeking suspension of execution, as in the 4th part of the Seoul Administrative Court, and that the application for suspension of execution should be targeted at the action of the head of the local government, the effect of the decision to suspend execution of the quarantine pass is specific. Applicable only to local governments. A trial for suspension of execution must also be filed separately for each local government. In this case, there is a possibility that each court in charge of each local government case may come to a different conclusion.



As such, the scope of the quarantine pass suspension and the trial aspect of the case of the application for suspension of execution will be completely different depending on the judgment of the court on whose disposition can be regarded as the subject of administrative litigation.



For reference, the fact that the 8th, 13th, and 4th divisions made different judgments on the nature of the quarantine pass-related measures of the Minister of Health and Welfare is whether this measure will be viewed as an 'internal act between administrative agencies' or 'in itself, direct public This is because there was a difference of opinion on whether to view it as a 'disposition to regulate specific rights and obligations or legal relations'.



Part 8 and Part 13 viewed the actions of the Minister of Health and Welfare as 'dispositions directly regulating the specific rights and obligations or legal relations of the people' in reality, whereas Part 4 saw the actions of the Minister of Health and Welfare to direct the KCDC or local government. It was judged that it was not a 'disposition that directly regulates the specific rights and obligations or legal relations of the people'.



A final decision on this issue is likely to be decided by the Supreme Court if the cases are later taken to the Supreme Court.


What kind of judgment did you make about "public interest" and "basic right" - evidence, mask, and alternative means

Although it must be taken into account that the scope of the quarantine pass that was the target of the judgment differs for each court, the three courts made a judgment that focused on the concerns of the 'public interest' and 'infringement of fundamental rights' caused by the quarantine pass in slightly different places.

In particular, it is noteworthy that the scope of the quarantine pass that was the target of judgment overlapped substantially, and the judgments of Part 4 and Part 13, which decided on the same day, were diametrically opposed.




The keyword of the 8th part of the judgment of the Seoul Administrative Court, which issued a decision on January 4, is “objective and reasonable reason”. The 8th part of the court also assumes that although it is possible for the state to actively recommend a corona vaccine, there must be "objective and reasonable reasons" to limit the basic rights (the right to self-determination about the body) of unvaccinated people. However, considering the break-through infection cases of vaccinated persons and the difference in the probability of infection between the vaccinated group and the non-vaccinated group, and considering that the main users of private institutes, reading rooms, and study cafes are adolescents, it is an “objective” measure to limit basic rights. It is the judgment of the 8th part of the Seoul Administrative Court that there is no "reasonable reason".



The keywords of the 4th division of the Seoul Administrative Court sentenced on January 14 are "severe severity" and "mask". Part 4 assumes that the main content of the public interest to be achieved by the quarantine pass is to control the "severity rate", and to achieve this public interest, it is acceptable to apply the quarantine pass to some multi-use facilities. However, we do not believe that applying the quarantine pass to places where the increase in the severity of aggravation can be controlled by other means such as “masks” among essential living facilities does not have sufficient objective and reasonable grounds to justify limiting basic rights. Measures to expand the application of the quarantine pass to adolescents with significantly lower aggravation rates or mortality rates were also viewed as lacking evidence.



The keywords of the 13th part of the judgment of the Seoul Administrative Court, which were sentenced on the same day, were "alternative means" and "public welfare." Part 13 also acknowledges that the quarantine pass is a restriction on basic rights, but it does not completely prohibit entry to large stores, but sees that there is an “alternative means” for entry, such as submitting a paper certificate. In addition, it was determined that there were "alternative measures" such as small stores and traditional markets instead of large stores. It also stated that online purchases could be an alternative, as the applicant appears to be familiar with the online environment. He also explained that there is a reason to defend the "public welfare" by maintaining the effectiveness of the quarantine pass, given that a serious quarantine crisis is underway due to COVID-19.



If we look at the order, Part 8 sentenced on January 4 saw that the public interest to be achieved with the quarantine pass was relatively unclear, while the violation of fundamental rights was serious. Part 4 and Part 13, which were sentenced on the same day but judged the opposite about the quarantine pass at large stores, all agree that there is a public interest to be achieved with the quarantine pass, and that basic rights are violated. However, the 4th part judged that the quarantine pass for essential facilities is excessive because there are alternative quarantine measures such as masks, and the 13th part urgently needs to suspend the effect of the quarantine pass because there are alternative means such as small stores or online purchase. I decided that there was none. It seems that the judgments of the two judges differed greatly depending on which "alternative means" they focused on.



As stated at the beginning of this article, it is very important to look at not only the conclusion of the trial, but also the process leading to the conclusion. Below, I have summarized the reasons for the judgment of the three courts as closely as possible to the original text of the decision.




○ The 8th part judgment on January 4th It



is recognized that there is an urgent need to prevent irreparable damage to applicants due to the quarantine pass for private institutes, reading rooms, and study cafes, and suspending the effect may have a significant impact on public welfare. It is difficult to ascertain that there is a risk.



1. Due to the quarantine pass, people who want to use private academies, reading rooms, and study cafes will be under pressure to complete vaccination regardless of their doctor, so they will not be able to fully exercise their right to self-determination regarding the body of the corona vaccination. This is a measure that severely disadvantages the unvaccinated group.


2. There must be objective and reasonable reasons for giving serious adverse treatment only to a specific group of people who are not vaccinated. However, considering the fact that a significant number of so-called breakthrough infections are occurring among vaccinated people, and that the non-vaccinated group is about 2 or 3 times more likely to be infected with Corona than the vaccinated group, the difference is not significant. It cannot be seen that the risk of spreading Corona in the unvaccinated group is significantly greater than that of the vaccinated group to the extent that only unvaccinated persons have to restrict the use of the facility.


3. Corona vaccine can be actively recommended for the prevention of individual corona infection and severe seriousness, but even considering such circumstances, the right to self-determination of the body of unvaccinated persons should be fully respected. The seriousness and fatality rate due to corona infection is lower for younger age groups or people without underlying diseases, especially for adolescents. In light of this situation, it is questionable whether objective and reasonable grounds can be said to be sufficient to justify the inflicting serious disadvantages that directly restrict the right to study and occupational freedom by restricting the use of private academies, reading rooms, and study cafes for non-vaccinated people. .


4. Controlling the seriousness rate by inducing voluntary vaccination seems to be the least invasive measure that quarantine authorities should take first.


5. Even according to the current quarantine guidelines, basic quarantine rules must be observed, such as continuing to wear a mask to use private academies, reading rooms, and study cafes. Considering these circumstances and the vaccination rate, it is difficult to conclude that not applying the quarantine pass to private academies, reading rooms, and study cafes will cause a significant adverse effect on public welfare, such as a significant increase in the rate of corona infection and perjury.




○ Judgment of the 4th case on January 14th



Although it is difficult to accept all the applications for suspension of enforcement against the mayor of Seoul, the mandatory application of the quarantine pass to 'stores, marts, and department stores' and the expanded application of the quarantine pass to teenagers between the ages of 12 and 18 It is recognized that there is an urgent need to prevent irreparable damage that may occur, and it is difficult to believe that the suspension of the effect is likely to have a significant impact on public welfare.



1. It is clear that the disposition of the quarantine pass itself limits basic rights such as the right to pursue happiness of those who are not vaccinated. The basic rights of citizens can be limited by law when necessary for the public welfare, but their essential content cannot be violated, and such restrictions are prudent within the scope of adhering to the limits of appropriateness of means, minimal intrusion, and proportionality. should be done


2. According to the explanatory data submitted by the administrative agency and the results of the interrogation, the disposition of the quarantine pass seems to be a bigger objective to block the spread of infection due to the non-vaccinated people rather than a policy to directly protect those who are not vaccinated. In the end, the quarantine pass seems to have the main purpose of lowering the severity and fatality rate of COVID-19, who are not vaccinated, to secure room for medical response, and to increase the vaccination rate to prevent the spread of infection.


3. It seems that the quarantine pass can lower the aggravation rate of all COVID-19 confirmed cases, and maintaining the aggravation rate of all COVID-19 confirmed cases at an appropriate level prevents the collapse of the medical system and maintains the general right to life and health of seriously ill patients. As it appears to be a necessary means to achieve this, the public interest in itself of introducing a quarantine pass to some multi-use facilities, facilities vulnerable to infection, and large gatherings is recognized.


4. However, even if such public interest is recognized, if the quarantine pass is widely implemented without restrictions and reaches a level that restricts the use of essential facilities without any reasonable reason, those who have not been vaccinated should complete the vaccination to use essential facilities. Because they are under pressure to do so, they may find themselves in a situation where they are forced to vaccinate against COVID-19, which can cause irreparable damage.


5. Among the facilities subject to the mandatory quarantine pass for which the applicants are seeking to suspend the validity of this case, the 'restaurants, cafes' and 'shops, marts, and department stores' are the ones that the quarantine authorities have identified as essential for basic living.


6. In the case of 'restaurants/cafes', the risk of infection is higher than that of other multi-use facilities because it is difficult to wear a mask, whereas 'shops/marts/department stores' have a higher risk than 'restaurants/cafes' based on their usage behavior. It is relatively low, and the risk can be further reduced by limiting the density or strengthening quarantine rules.


7. Nevertheless, uniformly applying the quarantine pass to 'stores, marts, and department stores' with a total area of ​​3,000 square meters or more, which are essential for living, is an excessive restriction. Even according to the current quarantine guidelines, users of 'shops, marts, and department stores' must comply with basic quarantine rules, such as wearing masks. It is difficult to determine whether it will cause adverse effects.


8. In light of the fact that the main goal of the public interest from the introduction of the quarantine pass is to lower the severity of COVID-19, the application of the quarantine pass to teenagers between the ages of 12 and 18 with a significantly low severity of COVID-19 infection and no deaths. Targeting it is difficult to see as a reasonable limitation. Not applying the quarantine pass does not seem to have a significant adverse effect on public welfare, such as an increase in the severity of COVID-19.


9. Moreover, in the case of adolescents, the need to ensure the right to self-determination about the body to decide whether to receive the corona vaccine on its own is higher than that of adults in a situation in which it is not precisely known about adverse reactions due to vaccine side effects and the long-term effects of vaccination on the body. bigger


10. Controlling the aggravation rate by inducing voluntary vaccination seems to be the least invasive measure that quarantine authorities should take first, Inevitably, even if a quarantine pass is temporarily introduced for some facilities, the scope should be minimized and operated at a level that does not infringe on the basic rights of those who are not vaccinated themselves or who do not choose additional vaccination.




○ Judgment of the 13th case on January 14



Even if it is recognized that the possibility of irreparable damage due to the disposition of the quarantine pass applied to large-scale stores over 3,000 square meters is recognized, the effect of the disposition must be urgently suspended to resolve the possibility immediately. Since it is difficult to see the need to do so, and it is difficult to rule out the possibility of a significant impact on public welfare when the effect of the relevant disposition is suspended, it is judged that it is necessary to defend the public welfare by maintaining the effect of the disposition.



1. In accordance with the disposition of the quarantine pass, non-vaccinated persons will not be able to enter large-scale inoculations unless they have a PCR negative confirmation or documents proving the reason for exception to vaccination. This goes beyond limiting the freedom to conclude a contract, and may even impede even the acquisition of goods widely necessary for daily life. Therefore, it is recognized that there is a risk of incurring irreparable damage to the general public.


2. However, the disposition in this case does not prohibit entry to large-scale stores itself, but provides an alternative means of entry by presenting a paper certificate. is not completely blocked, especially considering that the applicant seems familiar with the online environment, such as running a blog, Twitter, and YouTube channel, it is possible to purchase goods online without necessarily entering a large-scale store. Looking at it, even if the possibility of irreparable damage to the applicant is recognized as a result of the disposition, it is difficult to see the necessity of urgently stopping the disposition in order to resolve the possibility immediately.


3. The risk of damage that is difficult to recover from the applicant is unlikely to occur 'immediately'; Considering the fact that verification and discussion are actively underway on It is judged that it is necessary to defend the public welfare by maintaining its effect.



Is the court's mixed judgment a problem?

The decision to suspend the enforcement of three quarantine passes has caused a bit of confusion. First, it is necessary to explain the judgments of the 4th and 13th divisions of the Seoul Administrative Court, which made the opposite decision on the same day for the virtually identical object of quarantine pass related to large stores. In conclusion, if one court decides to reject the application for suspension of execution and the other court decides to accept the application for suspension of execution for the same object, as a result, the execution of the quarantine pass will be suspended.



In principle, anyone who has not been vaccinated against the quarantine pass can file a lawsuit to suspend the enforcement of the quarantine pass, and each person who files a lawsuit can receive a different judgement. Even if a court of , decides to maintain the quarantine pass, and one court makes a decision to suspend the effectiveness of the quarantine pass, the effectiveness of the quarantine pass is suspended, and so on.



As mentioned earlier, it is also a very important issue which administrative body can be the subject of a suspension of enforcement action. Depending on the judgment on this issue, it is decided whether the effect of the decision to suspend execution (suspension of effect) is applied at the national level or the local government level. This is because it depends on whether or not each local government has to do it individually.



If it is decided that the measures of the Minister of Health and Welfare cannot be the subject of administrative litigation and that only the measures related to the quarantine pass of the local government can be the subject of administrative litigation, lawsuits to suspend the execution of the quarantine pass in the future will be brought against each local government. and different judges may draw different conclusions, resulting in different effects of the quarantine pass for each local government.



For this reason, some criticize the problem that the courts do not come to a 'unified conclusion'. Of course, in the case of administrative litigation where policy impact cannot be completely ignored, consistency cannot be completely ignored. However, in a situation where there is no precedent for the quarantine pass due to COVID-19, there is an aspect that cannot be helped for each court to make a different judgment. In order to prevent this, there may be a way for the court administration, etc. to give specific guidelines on the trial to the court, which existed in the past, but has since become quite controversial regarding the independence of the trial and is now a practice that has disappeared.



In particular, independence is more important in the case of administrative litigation with the main purpose of protecting the rights of minorities from state power. Individual human beings and all social systems created by human beings are bound to be imperfect, but nevertheless, judges with a guaranteed status judge according to their conscience while relatively independent from other powers. Because I think it's a better way.



Ultimately, it is up to the administration to find a rational and strict way to limit basic rights for the sake of achieving the public interest.

As the COVID-19 pandemic is unprecedented around the world, there can be no precedent for how to deal with it.

Legal controversies and social conflicts are inevitable.

Yet, as always, we will not lose faith that we will find a way.

By this time next year, we hope that decisions and judgments surrounding COVID-19 will be dealt with only as interesting legal issues.

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