1.  The Republic of Korea (South Korea) has a unitary, presidential government system. Its constitutional framework is prescribed in the Constitution of the Republic of Korea.⁷

2.  Under the principle of the separation of powers, legislative power belongs to the unicameral National Assembly; executive power to the administrative branch, with the President as head; and adjudicative power to the judiciary, with the Supreme Court of Korea as the highest among ordinary courts and the Constitutional Court of Korea holding the power of constitutional review. The administration consists of the President; the Prime Minister, who is appointed by the President with the consent of the National Assembly and generally assists the President in directing the executive ministries; 18 Ministries; the Board of Audit and Inspection; and the advisory committees.

3.  Under the Framework Act on the Management of Disasters and Safety, a ‘disaster management supervision agency’ is designated among relevant central administrative agencies to supervise the performance of affairs related to the prevention, response, and recovery from disasters and other accidents. ⁸ With respect to infectious diseases, the Infectious Disease Control and Prevention Act (hereinafter ‘Infectious Disease Control Act’) designates the Korea Disease Control and Prevention Agency (KDCA) as a central body to establish basic plans on the prevention and control of infectious diseases and supervise the implementation of relevant policies. ⁹ The Central Disaster and Safety Countermeasures Headquarters, headed by the Prime Minister and with the Minister of Health and Welfare and the Minister of the Interior and Safety jointly supporting as vice heads, led the government-wide response to Covid-19. Given the required expertise in infectious disease response, the Central Disease Control Headquarters (KCDC), headed by the Director of the KDCA, served as the command centre of the national prevention and control efforts.¹⁰ These central agencies are structurally subordinate to the order of the President, and cases of conflict between them were rare. The bodies’ policies and actions can be challenged before a court through administrative litigation procedures.¹¹ At the local level, each local government is entitled under the Infectious Disease Control Act to issue administrative rules, such as guidelines and public notices, for the areas within its jurisdiction and to allocate its own budget to disease control measures.¹²

4.  South Korea has not adopted a constitutional-level adjustment of its governance structure in response to the Covid-19 pandemic. Necessary legal and administrative measures and arrangements have been taken through amendment of the Infectious Disease Control Act as appropriate, accompanied by the enactment of a series of manuals and guidelines at more concrete levels to meet specific and changing needs caused by the pandemic. However, in the course of establishing and implementing responses at a rapid pace, criticism has been raised that some administrative rules were adopted without solid legal grounds, or beyond the discretionary boundaries authorized by the relevant statute (see eg Part IV.A.7 below). There were also occasions where a local government unilaterally adopted a response measure in discordance with the policy direction of the central Government (see eg Part IV.A.8 below). Actions taken by the central or local Government are subject to the general rule of law principle under the Constitution. In cases of conflict, rules or orders by the central Government take precedence over the measures taken by a local government on the same matter.

5.  Under Article 76 of the Constitution, the President may take urgent measures when required for the maintenance of national security or public peace and order and where there is no time to await the convocation of the National Assembly. Article 77 of the Constitution provides that the President may proclaim martial law (either extraordinary or precautionary), when it is required to maintain public safety and order in times of national emergency. Neither urgent measures nor martial law were proclaimed by the President in connection with Covid-19.

6.  Without taking such emergency measures under the Constitution, the Government issued a crisis alert under Article 38 of the Framework Act on the Management of Disasters and Safety. The Covid-19 pandemic was regarded as a circumstance that justified wider restrictions on fundamental rights than ordinarily applicable. For example, several courts in South Korea delivered decisions upholding government restrictions on the freedom of assembly, on the grounds that the highest level of crisis alert was issued in response to Covid-19 (see Part IV.A.3 below).¹³

7.  Article 11 of the Constitution enshrines equality before the law and the non-discrimination principle. Article 35(1) of the Constitution provides for the right to health, and under Article 34(6), the State has an obligation to prevent disasters and to protect citizens from harm. The Constitution contains a general provision in Article 37(2), which sets the limit on the restriction of constitutional rights. Under this provision, rights restrictions are allowed only when necessary for national security, the maintenance of law and order, or for public welfare, and, even when the restriction is legitimately imposed, no essential content of the freedom or rights shall be violated. During the pandemic, as discussed throughout this report, concerns have been raised that a wide range of constitutional rights have been excessively or unfairly restricted by various government measures, including equality rights, the rights to movement, gathering, occupational freedom, education, health, and an adequate standard of living.

8.  South Korea is a party to the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social, and Cultural Rights (ICESCR), Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), International Convention on the Elimination of All Forms of Racial Discrimination (CERD), Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT), Convention on the Rights of the Child (CRC), Convention on the Rights of Persons with Disabilities (CRPD), and the Optional Protocols to the ICCPR and CEDAW which permit individual communications (ie petitions) to the respective bodies. South Korea has also ratified the Optional Protocol to CRC on the sale of children, child prostitution, and child pornography, and the Optional Protocol to CRC on the involvement of children in armed conflict. Article 6(1) of the Constitution provides that treaties duly concluded and promulgated under the Constitution and generally recognized rules of international law have the same effect as domestic law. No specific human rights treaty provisions were referenced by the Government when adopting pandemic response measures. As of July 2022, the Government has not claimed any derogation from human rights treaty provisions during the Covid-19 pandemic.

9.  In order to implement the World Health Organization (WHO) International Health Regulations (revised 2005, entered into force 2007) and strengthen the responses to infectious diseases, South Korea amended the Quarantine Act in 2008 and newly adopted the Infectious Disease Control Act in 2009, replacing the previous Act on the Prevention of Contagious Disease. The Quarantine Act stipulates procedures for quarantining all means of transport, persons, and cargo that enter or depart from South Korea and measures for preventing infectious diseases. The KDCA is responsible for enforcing both Acts.

10.  The Framework Act on the Management of Disasters and Safety and the Infectious Disease Control Act, the two primary applicable statutes, existed before the Covid-19 pandemic (the former was enacted in 2004). According to the Framework Act, the Head of a disaster management supervision agency can issue crisis alerts from among four different levels—Attention, Caution, Alert, and Serious.¹⁴ Between January 2020 and July 2022, three alerts were issued: the alert level ‘Caution’ was announced on 20 January 2020, when the first case was confirmed in the country, followed by an increase to ‘Alert’ on 27 January 2020.¹⁵ On 23 February 2020, the Government raised the alert to ‘Serious’ and sustained it at that level.¹⁶ As the authority of issuing a crisis alert belongs to the executive body, the National Assembly has not played a role in this regard.

11.  With regard to administrative measures other than the issuance of a crisis alert, the Head of the KDCA and the Head of each local government possess the authority (and are sometimes obligated) to impose ‘compulsory dispositions’ under the Infectious Disease Control Act, eg hospitalization and treatment of a patient or the imposition of quarantine on persons suspected of contacting the infectious disease;¹⁷ ‘control measures,’ such as a temporary closure of places deemed to be contaminated, prohibition of public entry to such places, or restrictions on movement within those places; ¹⁸ and ‘preventive measures’, which may include restriction or prohibition of performances, assemblies, religious ceremonies, or any other large gatherings of people.¹⁹

12.  The National Assembly did not adopt new legislation for the purpose of allocating Covid19 response powers among different government bodies. Instead, by amending the Infectious Disease Control Act in February 2020 (during the period when Covid-19 cases began to increase in South Korea), the National Assembly extended the scope of authority of the central and local governments in taking response measures to infectious diseases. For example, the amendment of February 2020 newly adopted the category of ‘a person suspected of contracting an infectious disease’ and empowered central and local authorities to impose an order of hospitalization or quarantine on individuals categorized into such a group.²⁰ The Act has been further amended to legally provide for stronger penalties against violations of its provisions and to adopt new mandatory measures, such as an electronic entry list to be placed at publicly used facilities.²¹

13.  Unusually, rapid and frequent legislative amendments have been made concerning the responses to Covid-19. For example, the Infectious Disease Control Act was amended seven times in 2020 alone, four times in 2021, and twice in 2022. In contrast, in normal situations in South Korea, statutes are rarely amended more than once a year. Concerns have been raised that the participation of civil society has not been adequately ensured in the process of such amendments.²²

14.  The Infectious Disease Control Act delegates a broad range of matters to its Enforcement Decree and administrative rules, such as public notices of the KDCA and directives of the relevant Ministries. These matters include which infectious diseases fall under the Act, and the details of measures and procedures to control those diseases. The Enforcement Decree and relevant administrative rules have been as frequently amended as the Infectious Disease Control Act itself, with the Enforcement Decree being amended 16 times between January 2020 and July 2022. Executive rule-making has played a central role in responding to Covid-19, as Enforcement Decrees and various administrative rules have prescribed the specific matters of infectious disease control measures that affect the fundamental rights and freedoms of individuals. Those measures include self-quarantine procedures, extension of the scope of personally identifiable information collection, and standards for the imposition of administrative fines.²³

15.  Enforcement decrees enacted by the Government in the form of presidential decrees are lawful to the extent that their concrete scopes are delegated by relevant statutes. Detailed matters that are not provided by enforcement decrees can be further delegated to enforcement rules made by relevant ministries. A statute may also delegate the prescription of detailed matters to ‘administrative rules,’ such as public notices, directives, or guidelines. While enforcement decrees are subject to review by the State Council, administrative rules issued by relevant government bodies are not. In principle, administrative rules, unlike enforcement decrees or enforcement rules, do not have binding effects directly on individuals, as they are directed to public officials of the relevant ministry or agency.

16.  The Regulation on the Issuance and Management of Directives requires the Head of a central administrative agency issuing an administrative rule, such as a directive, guideline, or public notice, to specify a term of expiration not exceeding three years maximum. However, with regard to administrative rules issued by the delegation of a superior law, the Regulation allows designation of a period for ‘re-examination’ (three to five years) instead of expiration to review the necessity of the continuation of the administrative rules concerned.²⁴

17.  Administrative guidelines have been the main means through which the Government exercised its power and discretion in response to Covid-19. Quite a few arrangements that directly affect the fundamental rights and freedoms of individuals, such as guidelines for disclosing case movement routes, notifying self-quarantine requirements, and the electronic wristband system for self-quarantine violators, have been implemented in the form of administrative guidelines (see Part III.G below). Since January 2021, the KDCA has issued a series of ‘Coronavirus Disease 19 Response Guidelines for Local Governments’, which serve as nationwide primary rules for the central and local governments’ response and management of Covid-19 situations, including reporting of confirmed cases, management of visitors from abroad, confirmed patients, suspected cases, deaths, and disinfection measures. ²⁵

18.  Local governments have exercised their authority to control Covid-19 primarily by issuing public notices, which are a type of executive order. A wide range of authority delegated to local governments by relevant laws has been subject to criticism, ²⁶ as some local government administrative measures have had far-reaching impact on the fundamental rights and freedoms of individuals. Examples of such measures include mandatory Covid19 testing for particular groups of individuals (see Part IV.A.8 below), cohort isolation, including preventive isolation of residents at certain facilities (see Part IV.A.10 below), disclosure of case movement routes that include personally identifiable information (see Part IV.A.9 below), collection of location data from mobile telecommunications companies (see Part IV.A.9 below), and restrictions on assembly and gatherings (see Part IV.A.3 below).

19.  Most Covid-19 administrative measures, such as public notices and administrative guidelines, have been implemented without a sunset provision. For example, the Seoul Metropolitan Government issued a notice with only the commencement date as regards the prohibition of assembly, ²⁷ and the Daegu Metropolitan Government stated that the prohibition of assembly would continue to be in effect until otherwise notified.²⁸ Social distancing measures were announced and updated by the Government every two weeks.

20.  Several legal challenges were brought against the central and local governments before the Constitutional Court, ordinary courts, and the National Human Rights Commission with regards to Covid-19 measures adopted. Examples include:

• •  Assembly prohibition: administrative litigation and a complaint to the National Human Rights Commission (some have been finalized, others remain pending; see Part IV.A.3 below);

• •  Collection of location data from mobile telecommunications companies: a constitutional complaint before the Constitutional Court (pending, see Part IV.A.9 below);

• •  Restrictions on businesses: a constitutional complaint before the Constitutional Court (dismissed by the Court);²⁹

• •  Mass infection of inmates at Seoul Dongbu Detention Centre: state compensation litigation in ordinary courts (some have been finalized, while others remain pending);³⁰

• •  Excluding foreign residents from Covid-19 disaster relief funds distributed by the Seoul Metropolitan Government and the Gyeonggi-do Government: a complaint to the National Human Rights Commission, which decided that the exclusion of foreign residents was discrimination and recommended the respective government to provide foreign residents with relief fund benefits (see Part IV.A.8 below).

21.  Administrative directions and recommendations have also been issued by the Government as part of its Covid-19 response. These included recommendations to: refrain from assembly and gatherings; take voluntary tests for infection; implement preventive cohort isolation of certain locations and facilities; and observe government prevention guidelines. A few of these recommendations developed into binding instructions. For example, wearing a face mask indoors and in large-sized outdoor gatherings was initially a recommendation but later became an obligation, subject to an administrative penalty upon violation (see Part IV.A.6 below).

22.  The government recommendation directing nursing facilities to implement preventive cohort isolation faced criticism for its lack of statutory grounds (See Part IV.A.10 below). The recommendation to refrain from gatherings, even small-sized or drive-in ones, presented tensions with the constitutional principle that prohibits excessive restrictions on the right to assembly. Similar concern was raised regarding the ‘zero tolerance’ policy, which may disqualify those who violate self-quarantine regulations from receiving the Emergency Relief Funds benefits.³¹

23.  The legislature in South Korea (both the National Assembly and local legislatures) does not assume a role of ongoing oversight over government decrees or executive rulemaking. The legislature, both national and local, however, holds the power of periodic or ad hoc inspection of government offices. While the inspection power does not include the power to directly terminate or modify specific government measures, the legislature exercises general influence over the executive branch with its power to decide on the government budget. As described above, the National Assembly, by adopting the Infectious Disease Control Act, granted a wide range of discretion to the central and local governments to take various types of preventive and control measures in response to infectious diseases. The Act itself does not provide for procedures to scrutinize or terminate the exercise of such government discretion; however, government measures can be challenged in front of ordinary courts, the Constitutional Court, and the National Human Rights Commission. Since the outbreak of Covid-19, the legislature, national or local, has been generally cooperative with the executive bodies’ response measures taken during the pandemic situation.

24.  The imposition of restrictions on fundamental rights without a statutory ground goes against constitutional principles. A few administrative measures, such as mandating placement of an electronic entry list at publicly used facilities, however, were implemented before legislative bases were adopted.³² Part of the problem was the vague language used in the Infectious Disease Control Act and the Framework Act on the Management of Disasters and Safety when granting administrative discretion to the government. Based on the wide discretion granted by the Act, the central and local governments adopted new measures that were not specifically stipulated in the statutes. These include requiring those who violated quarantine regulations to wear a wristband-type GPS tracking device (a so-called ‘safety wristband’), in addition to the measures discussed in Part II.C above (see also Parts IV.A.7 and 9 below).

25.  The National Assembly in South Korea did not experience closures amid the Covid-19 pandemic. There were occasions when committee meetings or seminars were cancelled or postponed due to the infection of a news reporter or self-quarantine of one of the Assembly members.³³

26.  An amendment of the National Assembly Act was adopted in December 2020 to enable virtual meetings and remote voting in emergency situations, where regular meetings could not be held due to the spread of infectious diseases or other forms of disasters.³⁴ This provision was adopted only temporarily, with validity until 30 June 2022.³⁵

27.  Since the National Assembly implemented protective measures during its sessions, including wearing masks and distanced seating, without serious disruptions and in cooperation with opposition parties, remote meetings were not held.

28.  Video trials to ensure access to the courts were not used very widely during the Covid-19 pandemic until November 2021, when the relevant law was amended. According to statistics provided by the Supreme Court of Korea, a total of 249 video trials (59 sessions for preparatory pleading procedures, 66 sessions for witness testimony, and 124 for other procedures) were held from January 2020 to April 2021. It is unclear whether or not those online proceedings were held as a result of the Covid-19 pandemic or due to other circumstances (eg criminal courts dealing with sexual violence cases frequently use video link). By amendment of the Civil Procedure Act and the Criminal Procedure Act, adopted in August 2021 and taking effect from 18 November 2021, video trials became more widely available for ordinary court procedures, including oral proceedings in civil cases and the questioning of any witnesses (not only the victims of sexual violence) in criminal cases.³⁶ These amendments were made partly in response to concerns with delays of court procedures and the risks of infection.

29.  Since video trials were not previously used widely, no specific surveys have been conducted on the digital divide in relation to online proceedings. Detailed plans are yet to be established to address possible inequalities in access to digitalised court proceedings.

30.  No cases have been identified where the court simplified or eased the process of trials in consideration of the Covid-19 pandemic. There have been cases of recess when confirmed patients visited the courthouse. Court proceedings have been held in accordance with the preventative guidelines established by individual courts. Under these guidelines, the wearing of face masks is mandatory and audience numbers at each courtroom can be restricted.³⁷ Some courts allowed only the parties and witnesses involved in the cases to stay in the courtroom, in possible conflict with Article 109 of the Constitution, which provides that trials are in principle open to the public.

31.  The issuance of a crisis alert under the Framework Act on the Management of Disasters and Safety (as discussed in Part II.B above) is not subject to ex-ante judicial review. There have also been no cases of ex-post judicial review on crisis alerts.

32.  Elections were not cancelled or postponed due to Covid-19. During the pandemic, the 21st election of members of the National Assembly was held on 15 April 2020, followed by by-elections on 7 April 2021, the presidential election on 9 March 2022, and local elections on 1 June 2022.

33.  In the 21st National Assembly election, ordinary voters were allowed to vote if they followed preventative guidelines, such as wearing face masks and disposable plastic gloves, checking body temperature, using hand sanitizer, and keeping a distance of at least one metre from others. ³⁸ The National Election Commission was initially sceptical about allowing self-quarantined persons and confirmed patients to vote. ³⁹ As criticisms were raised from civil society,⁴⁰ the National Election Commission decided to operate an election procedure specifically for self-quarantined persons during the evening after official voting had closed.⁴¹ Measures were also arranged for confirmed patients to be able to vote in their residence.⁴² Ahead of the March 2022 presidential elections, the Public Official Election Act was amended to codify these changes.⁴³ Overall turnout in the 2021 National Assembly elections was 66.2% (the highest in 28 years);⁴⁴ 77.1% in the 2022 presidential election (comparable to the previous presidential election);⁴⁵ and 50.9% in the 2022 local elections, a decrease from previous years. ⁴⁶ Partly due to the pandemic, early voting played a significant role in the 2022 presidential election, comprising just under 37% of total votes cast.⁴⁷

34.  On the other hand, the right to vote of Korean nationals residing abroad was significantly restricted in the 21st National Assembly election. The National Election Commission suspended overseas election affairs of 91 diplomatic offices in 55 countries. ⁴⁸ In 36 overseas diplomatic offices, the voting period was shortened. As a result, 50.7% of eligible voters residing abroad failed to participate in the election, and the turnout of overseas voters was 23.8%, the lowest in history.⁴⁹ A constitutional complaint filed against this extensive suspension of overseas election affairs was dismissed by the Constitutional Court in January 2022.⁵⁰

35.  By-elections held in April 2021 were conducted in the same manner as the 21st National Assembly election. Since Korean nationals residing abroad in principle do not have a voting right in by-elections, there was no controversy over this issue. Overseas voting in the March 2022 presidential elections proceeded as normal.⁵¹

36.  Article 9 of the Infectious Disease Control Act requires the Infectious Disease Control Committee to be established under the KDCA in order to deliberate on major policies concerning the prevention and management of infectious diseases. Article 10 of the Act mandates that more than half of the Committee members should be comprised of nongovernmental individuals such as medical staff or other persons who possess expert knowledge and experience of infectious diseases. In addition, during the Covid-19 pandemic, the National Infectious Disease Crisis Response Advisory Committee was newly set up.⁵² The Advisory Committee is comprised of 21 civilian experts in communicable diseases control, medical and socioeconomic fields, and can provide scientific advice and policy recommendations to the Government. ⁵³ Results of regular meetings by the Committee are publicized on the KDCA webpage.⁵⁴

37.  There are no identified circumstances in which a media report about Covid-19 was restricted or obstructed by the Government.

38.  The Official Information Disclosure Act on general information access was not suspended nor amended during the pandemic.

39.  Two oversight bodies proceeded with investigations and made recommendations regarding human rights violations, discrimination, and privacy violations committed during the Covid-19 pandemic: the National Human Rights Commission of Korea, which holds an independent status from the Government according to the National Human Rights Commission Act, and the Personal Information Protection Commission, established by the Personal Information Protection Act. The Personal Information Protection Commission published a few recommendations and guidelines with regard to the Government’s response measures to Covid-19.⁵⁵ The National Human Rights Commission also made statements and recommendations in several cases related to the pandemic (see eg Part IV.A.8 below). As of 13 May 2020, 149 individual petitions were submitted to the Human Rights Commission concerning Covid-19 response measures by the Government, as well as discrimination by private persons, such as the release of tracing information, adoption of the safety wristband, collection of telecommunications data, use of electronic entry lists, cohort isolation, and hate speech targeting sexual minorities and a particular religious group.⁵⁶

40.  There are several routes of collecting public opinion on Covid-19 policies and responses. People can express their opinions through ‘the public opinion-gathering communication team’ of the KDCA,⁵⁷ the Anti-Corruption and Civil Rights Commission,⁵⁸ and presidential petitions.⁵⁹ Nonetheless, criticism was raised that the Government did not fully consider groups and individuals likely to be particularly affected by specific government measures, such as the closure of certain categories of businesses and the discontinuation or reduction of face-to-face social services for persons who need assistance.⁶⁰

41.  From the time the first confirmed case was reported in South Korea on 20 January 2020 until February 2022, the Government’s public health measures were based on the ‘3Ts’ policy and social distancing schemes. The types and intensity of public health measures were adjusted frequently, according to the increase and decrease in the number of confirmed cases (in principle re-examined every two weeks). The social distancing schemes themselves were also revised multiple times:

• •  From February 2020 until early November 2020, a three-level social distancing scheme was applied. Level 1 measures (including recommendations to refrain from large gatherings and temporarily close businesses with high risks of infection) were implemented until August 2020.

• •  From the beginning of the second wave in August 2020, Level 2 measures were imposed. Several preventive measures were made compulsory (wearing masks, keeping entrance records, etc), large gatherings were prohibited, and certain categories of publicly used facilities were closed or had opening hours restricted.

• •  From 7 November 2020 until June 2021, during the third wave, a revised five-level social distancing scheme was implemented (comprising levels 1, 1.5, 2, 2.5, and 3). The main standards for deciding a level were the average number of daily new cases during a one-week period, and whether the spread was nationwide or regional. During this period, level 2 or 2.5 was applied to the Seoul Metropolitan Area and level 1.5 or 2 to other areas. Among the major social distancing measures imposed during this period was a prohibition on private gatherings of more than four persons. Vaccination drives began in the country on 25 February 2021.

• •  In July 2021, when the more severe fourth wave began, the Government announced a newly adjusted four-level social distancing scheme. From 12 July 2021 to 29 November 2021, the highest, level 4, was applied to the Metropolitan Area (prohibiting private gatherings of more than two persons after 6 p.m.), and level 3 to other areas.

• •  As vaccination rates reached the designated target of 70% of the population, the Government shifted its policy direction to ‘phased recovery of daily lives’ and announced a new plan in late October 2021. The recovery plan allowed vaccinated persons to have larger size private gatherings and mandated a ‘vaccine pass’ for entering certain facilities.

• •  In response to the fifth wave, triggered by an increase in Omicron variant cases from December 2021, social distancing measures were again tightened. As the number of confirmed cases skyrocketed in mid-January 2022, a wholly modified Government response strategy was adopted in February 2022. Under this new scheme, the 3Ts policy, previously based on GPS tracing and mandatory monitoring, was discontinued. Infected persons were required in principle to undergo self-quarantine and self-monitoring, instead of hospitalization, except for those belonging to high-risk groups or in a serious condition.

• •  Social distancing restrictions apart from mask-wearing were lifted beginning on 18 April 2022.

42.  No general stay-at-home order or curfew was imposed in South Korea. The Government’s judgment was that the situation could be controlled principally by the individualized imposition of quarantine and other disease management measures, without resorting to general restrictions on mobility.

43.  No restrictions on internal travel were imposed. With regard to international travel, the Government operated a travel alert system, separate from the social distancing alert level system, based on the Guidelines for Operation of the Travel Advisories (an instruction of the Ministry of Foreign Affairs). The Guidelines establishes a four-level travel alert system according to the seriousness of circumstances—travel caution (level 1 blue alert), travel restraint (level 2 yellow alert), travel cancellation/postponement and departure recommendation for sojourners (level 3 red alert), travel ban and immediate departure for sojourners (level 4 black alert). On 25 January 2020, the Ministry of Foreign Affairs issued a level 3 alert for Hubei Province in China. A level 2 travel alert was issued for all other areas of China, Japan, and 36 European countries on 28 January 2020, 7 March 2020, and 16 March 2020, respectively. As the spread went global, from 23 March 2020 until April 2022, the Ministry of Foreign Affairs issued and maintained a ‘special travel alert,’ setting a travel advisory between levels 2 (restraint) and 3 (cancellation or postponement) for all international travel.⁶¹

44.  Restrictions were imposed on people entering South Korea from China from 4 February to 10 August 2020, based on Article 24 of the Quarantine Act.⁶² For example, there were restrictions on the entry of people holding passports issued by Hubei Province in China and foreigners who had visited Hubei Province within 14 days before entry into South Korea, a temporary suspension of the validity of visas issued by the Consulate General of Wuhan, and an introduction of special entry procedures for arrivals from China.⁶³

45.  The Government issued a series of executive orders (based on Article 49(1) of the Infectious Disease Control Act) to impose limitations on public and private gatherings, which were continuously revised according to the severity of the situation. From 19 August 2020 in the metropolitan area, non-private gatherings such as weddings, funerals, academic events, workplace meetings, assemblies, music concerts, and festivals were prohibited from hosting more than 49 participants in the case of indoor gatherings, and more than 99 participants for outdoor gatherings.⁶⁴ An executive order was issued, effective from 23 December 2020 for the metropolitan area and from 24 December 2020 for other areas, prohibiting private gatherings of more than four persons.⁶⁵ On 15 February 2021, as the crisis alert for the metropolitan area was downgraded from Level 2.5 to 2, non-private gatherings became possible with up to 99 participants.⁶⁶ In late June 2021, the Government issued an executive order to enable private gatherings of up to eight persons from 1 July 2021 in non-metropolitan areas and from 15 July 2021 in the metropolitan area.⁶⁷

46.  As the number of confirmed cases rapidly increased in early July 2021, the Government changed this plan and elevated the social distancing level to the highest (level 4) for the metropolitan area, prohibiting private gatherings of more than four persons before 6 p.m. and gatherings of more than two persons after 6 p.m.⁶⁸ For non-metropolitan areas, the distancing level was elevated to Level 3 from 27 July 2021, prohibiting private gatherings of more than four persons all day.⁶⁹ While keeping these distancing levels, the Government applied modified gathering restrictions from 6 September 2021 aiming to encourage vaccination, and allowed private gatherings of up to six persons if two vaccinated persons were included (before 6 p.m.), and up to six persons if four vaccinated persons were included (after 6 p.m.).⁷⁰ From 18 October 2021, restrictions were partially relaxed to allow private gatherings of up to eight persons in the metropolitan area if four vaccinated persons were included, and of up to 10 persons in non-metropolitan areas if six vaccinated persons were included.⁷¹

47.  As the full vaccination rate nationwide reached over 70% in late October 2021, the Government announced that from 1 November 2021, the country would discontinue, step by step, its social distancing scheme and enter a new period of ‘phased recovery of daily lives’. ⁷² However, as the number of confirmed cases sharply increased soon after the announcement of this plan, the Government again strengthened social distancing requirements, prohibiting private gatherings of more than four persons and public gatherings of more than fifty persons (or more than 300 persons if all participants are fully vaccinated).⁷³ From 17 January 2022, the regulations on private gatherings were alleviated, allowing gatherings of up to six persons.⁷⁴ From 21 March 2022, private gatherings of up to eight persons were allowed.⁷⁵ On 18 April 2022, all social distancing regulations were lifted.⁷⁶

48.  Since February 2020, many local governments, through public notices (based on Article 49(1) of the Infectious Disease Control Act), prohibited assemblies of a certain number of participants or in particular public places where a large number of people tended to commute or gather.⁷⁷ Such measures caused controversy, as prohibition notices often did not specify the end date and prohibited a wide range of gatherings, such as drive-in assemblies, protests by more than one person, and press conferences that did not amount to assembly.⁷⁸

49.  Numerous lawsuits were brought by citizens requesting the suspension of prohibitions on assembly imposed by the central and local governments. In the majority of cases, courts dismissed the claims, upholding the restrictions as proportionate considering the Covid-19 situation. In a few other cases, courts upheld the citizens’ claims by allowing assemblies under certain conditions, such as restrictions on the number of participants and compliance with preventative guidelines. Cases in which local government prohibition orders were suspended were as follows:

• •  A case that suspended the prohibition order against an assembly of nine participants;⁷⁹

• •  A case that suspended the prohibition order and allowed an assembly, under the conditions of limiting the number of participants to 99, keeping a distance of two metres among participants, checking participants’ body temperature, and requiring participants to disperse immediately after the assembly;⁸⁰

• •  A case that suspended the prohibition order and allowed an assembly, under the conditions of limiting the number of participating vehicles to nine and allowing only one person in each vehicle.⁸¹

^50.  Restrictions on the operation of businesses with a high risk of infection mainly due to the dense concentration of patrons were imposed flexibly according to the increase and decrease in the number of confirmed cases (Article 49(1)(2-2) of the Infectious Disease Control Act). When caseloads increased in August 2020, executive orders were issued in the Seoul Metropolitan Area to ban gatherings at religious facilities, sports facilities, and entertainment facilities, and to suspend the operation of state-run indoor facilities and 12 ‘high-risk facilities,’ including clubs, karaokes, buffets, and PC rooms, from 19 August 2020 to 12 October 2020. ⁸² On 8 December 2020, the ban was again implemented. ⁸³ Various restrictions on operating hours (eg take-outs only after 9 p.m., mandatory closure before 10 p.m. or 12 a.m.) for restaurants, cafes, and indoor sports facilities remained in effect until the lifting of social distancing restrictions in April 2022.⁸⁴

51.  In 2020, education at most kindergartens, elementary, middle, and high schools, as well as special schools, was converted to remote learning.⁸⁵ This caused problems regarding access to online education and care services, especially for students in vulnerable situations and those with disabilities.⁸⁶ Prolonged online learning also widened academic achievement gaps among students. In the 2021 spring semester, in-person education resumed for first and second grade elementary school students and students at special schools. ⁸⁷ As the Covid-19 pandemic in the metropolitan area again worsened from July 2021 and alert level 4 began to apply from 12 July 2021, the Ministry of Education announced that classes of all schools in the metropolitan area would again move online from 14 July 2021.⁸⁸ As concerns of educational gaps resulting from remote-only classes increased, the Government decided to provide in-person classes from the fall 2021 semester (starting late August) for all first and second grade elementary school students, third grade high school students, and students at special schools, even though the level 4 alert continued.⁸⁹ From 22 November 2021, education at all schools (from kindergartens to high schools and special schools) switched to in-person teaching, despite the pandemic showing little sign of improvement.⁹⁰

52.  As a code of conduct on daily, social, and economic activities, the KDCA’s Basic Guidelines for Social Distancing in Daily Lives recommended individuals to follow basic rules such as wearing masks, distancing between people (at least two metres), frequent handwashing and disinfection, and for companies and other organizations to adopt community rules to prevent infections.⁹¹

53.  Initially, wearing a face mask was only a recommendation by the Government (see Part IV.A.5 above). On 13 November 2020, by an executive order based on the Infectious Disease Control Act (under Article 49(1)(2-2)–(2-4)), it became an obligation nationwide to wear a mask in public facilities, locations of assembly, medical facilities, and on public transportation, subject to an administrative penalty of 100,000 KRW (88 USD).⁹² On 12 April 2021, the list of places where an obligation to wear a mask existed was extended to all indoor facilities. ⁹³ Owners of indoor facilities (such as restaurants and cafes) were subject to an administrative penalty up to 3,000,000 KRW (2,653 USD) for violations.⁹⁴ Exemptions applied to minors under the age of 14, persons with mental disabilities, and those who would suffer breathing difficulties if a mask was worn and who had submitted a medical opinion confirming this.⁹⁵

54.  From 1 April 2020 until 7 June 2022, mandatory self-quarantine was imposed on all persons entering South Korea from abroad (imposed based on Article 17 of the Quarantine Act).⁹⁶ From November 2021, exemptions were allowed for fully vaccinated persons, and the quarantine period was reduced from 14 to 10 days.⁹⁷ From 4 February 2022, the period was further reduced to seven days and remained until the requirement was lifted on 8 June 2022.⁹⁸

55.  Under Article 42 of the Infectious Disease Control Act, the head of the KDCA and the head of each local government possess the authority to issue a quarantine order to persons suspected of contracting an infectious disease. According to the 10^th Edition Coronavirus Disease 19 Response Guidelines for Local Governments, the scope of ‘the persons suspected of contacting an infectious disease’ who are subject to quarantine shall be decided by the local health centre that first became aware of a particular confirmed case.⁹⁹ The health centre must decide the scope of persons to be quarantined within 24 hours from initial recognition of the confirmed case, considering the level of risk of infection based on various factors, including the route of the confirmed case and whether relevant persons were wearing a mask.¹⁰⁰ Self-quarantined persons were not allowed to go outside during the quarantine period (initially two weeks, subsequently shortened to 10 days from November 2021, then seven days beginning in 26 January 2022),¹⁰¹ and should remain isolated.¹⁰² Those in violation of quarantine regulations were subject to a criminal penalty of up to 10 million KRW (8,800 USD) or up to one-year imprisonment.¹⁰³ Quarantined persons were provided with paid leave, a daily allowance, and daily necessities according to circumstances. Concerns have been raised that quarantine orders tended to be imposed without full consideration of specific situations of more vulnerable groups and individuals, including persons with disabilities and those who need special care and assistance.¹⁰⁴

56.  The Central Disaster and Safety Countermeasures Headquarters implemented a measure requiring anyone under quarantine who violated quarantine regulations to wear a ‘safety wristband’ for supervision, effective from 27 April 2020.¹⁰⁵ The safety wristband was a location tracking device that notified the supervisor if the wearer deviated a certain distance from the designated place or if the device is damaged. Those who refused to wear the wristband were transferred to a designated quarantine facility and were liable to pay for use of the facility. This measure was implemented without statutory grounds, and was subject to criticism that the measure infringes on the fundamental rights to personal liberty and privacy, freedom of residence, and freedom of movement.¹⁰⁶ The position of the Central Disaster and Safety Countermeasures Headquarters was that since the safety wristband was attached only to those who violated self-quarantine regulations and consented to wear the device, the measure was legitimate, despite lacking specific statutory grounds. ¹⁰⁷ Nonetheless, critics pointed out that the Government’s consent-based argument was misleading, as those who refused to wear the safety wristband were placed in a mandatory quarantine facility.¹⁰⁸

57.  According to Article 41(1) of the Infectious Disease Control Act, infected persons were initially hospitalized at medical institutions designated as ‘infectious disease control facilities’. As the number of confirmed cases continued to increase, alongside an expectation of bed shortages, the Government from March 2020 began to classify confirmed patients according to the severity of their symptoms and arranged to firstly hospitalize infected persons in more serious conditions. Infected persons with light or no symptoms were treated in isolation at ‘residential treatment centres,’ which are not hospitals but residential facilities designated by the Government where medical services and daily health monitoring by resident medical staff are provided (based on Article 41(2) of the Infectious Disease Control Act). ¹⁰⁹ All expenses for the hospitalization and treatment of infected persons were covered by the government. From 26 November 2021, home isolation became the default for all infected persons.¹¹⁰

58.  According to Article 15 of the Quarantine Act, Covid-19 testing was mandatory for all individuals who entered South Korea from abroad, regardless of their contact history with infected persons.

59.  Residents in South Korea who had contact with or stayed in the same place as infected persons were required to take a PCR test. Testing was free and costs were covered by the Government. Test results were usually notified to the individual within a few hours, or by the morning of the following day. To ease the burden this created on public health centres, from 29 January 2022 self-testing kits were introduced by the Government. Under the revised measures, with the exception of high-risk groups, persons suspecting infection were required to present a positive self-test result prior to receiving a PCR test.¹¹¹

60.  By amendment of the Infectious Disease Control Act on 5 April 2020, an individual who was suspected to be a carrier of an infectious disease but refused testing was subject to a fine of up to 3,000,000 KRW (2,653 USD). Doctors were obliged to report the refusal of testing to a competent authority.¹¹²

61.  On 17 March 2021, the Seoul Metropolitan Government issued an executive order requiring all foreign workers in the city to take a Covid-19 test by 31 March 2021, with fines of up to 2,000,000 KRW for non-compliance.¹¹³ Strong criticisms were raised by civil society actors and employers of foreign workers, pointing out that such an order constituted discrimination against foreign nationals. ¹¹⁴ The National Human Rights Commission also issued an immediate statement criticizing this order, ¹¹⁵ followed by the recommendation by the Central Disaster and Safety Countermeasure Headquarters to withdraw this order.¹¹⁶ On 19 March 2021, two days after its issuance, the Seoul Metropolitan Government withdrew the order.¹¹⁷

62.  Covid-19 vaccination in South Korea began in February 2021 and has been administered on a voluntary basis that prioritizes groups according to infection risk. Vaccination was first administered to patients, residents, and staff members in long-term care hospitals and facilities, then to elderly people (starting with the group of the age 75 or older, and moving down to groups of ages 70–74, 65–69, and 60–64), military personnel, and employees at education facilities.¹¹⁸ As of 5 December 2021, the nationwide vaccination rate reached 80.51% ¹¹⁹ and the Government recommended booster shots for vulnerable groups and vaccination of minors of 12 years of age or older.¹²⁰

63.  A policy requiring ‘vaccination passes’ for entering certain facilities (bars, casinos, karaokes, saunas, indoor sports facilities, and caring facilities for the elderly and persons with disabilities) was adopted on 1 November 2021,¹²¹ and the list of the facilities requiring passes was expanded to include restaurants, cafes, cinemas, theatres, libraries, private academies, study rooms, PC rooms, museums, art galleries, and massage shops from 6 December 2021 (for minors, this rule was imposed from 1 February 2022).¹²² On 4 January 2022, Seoul Administrative Court issued an injunction to suspend the operation of the vaccine pass for libraries, private academies, and study rooms.¹²³ On 23 February 2022, Daegu District Court ruled that vaccination passes could not be enforced against persons under 60 years of age using restaurants and cafes and against anyone between 12 and 18 years of age.¹²⁴ The Government discontinued the operation of the vaccine pass from 1 March 2022.¹²⁵

64.  Contact tracing was conducted by transferring data collected from various digital devices to the government system. The central and local governments have authority to conduct epidemiological investigations under Article 18 of the Infectious Disease Control Act, supported by the ‘contract tracing assistance system’ developed by the Ministry of Land, Infrastructure and Transport. This system identified and traced persons who had contacted the infected person by analysing various sources of information, including the travel route of the infected, information of mobile communication and credit card use, and personal information collected from electronic entrance lists, CCTV, and smartphone applications.¹²⁶ The specific legal basis for operating this system was not very clear.

65.  Civil society groups filed a constitutional complaint before the Constitutional Court against the Seoul Metropolitan Government in May 2020. ¹²⁷ The complaint was made on the grounds that the Government’s request that mobile telecommunications companies hand over the location information of service subscribers and use individual location histories to trace persons who had contacted infected persons lacked a legal basis and violated individual rights to self-determination over personal information.¹²⁸

66.  The central Government and local governments have continued to disclose, primarily through their websites and text messages, the information and movement path of confirmed patients collected through epidemiological investigations. Its purpose is to allow others to identify whether they may have come into contact with the infected individual and to take precautionary measures, such as diagnostic tests and self-quarantine. Initially, and until adoption of the relevant guidelines, information on confirmed patients released by local governments often included their sex, age, locations of residence or workplace, and movement paths, including specific places, times, and the detailed sequence of their visits.¹²⁹ In addition, no specific duration of disclosure was defined when local governments initially released the information.¹³⁰ Such an extensive scope of information disclosure was subject to concerns that it was unnecessary to prevent the spread of the disease, infringed on the right to privacy, and could discourage early testing for Covid-19.

67.  On 9 March 2020, the National Human Rights Commission published a statement on the excessive disclosure of personal information of confirmed Covid-19 patients.¹³¹ In response, on 14 March 2020, the Central Disaster and Safety Countermeasure Headquarters issued its first guide for information release on the movement paths of confirmed patients, which recommended local governments not to disclose personally indefinable information, such as the detailed home address or the name of the workplace of the confirmed patient.¹³² The second edition of the guide added the instruction that information should be disclosed only for 14 days after the last day that the patient physically contacted any person before quarantine. ¹³³ The guide’s third edition adopted another important instruction not to disclose each individual’s sequence of visits, but to disclose only the list of places that need further confirmation of contacted persons.¹³⁴

68.  As practices by local governments continued to vary and often raised privacy protection concerns, the Personal Information Protection Commission issued a recommendation entitled ‘Enhanced Measures to Protect Personal Information in the Context of Covid-19’ in September 2020 (see Part III.G above).¹³⁵ In response, the Central Disaster and Safety Countermeasure Headquarters published renewed, binding guidelines in October 2020 entitled Information Release Guidelines on the Movement Paths of Confirmed Patients (1^st edition), setting out more comprehensive and detailed instructions on the period, scope, and methods of information disclosure. ¹³⁶ The Guidelines emphasized that disclosed information is restricted to what is necessary to prevent the spread of the infectious disease, and that no information of confirmed patients should be disclosed if all contacts had already been identified. It added that the methods of information disclosure should be accessible to persons with disabilities.

69.  In March 2020, the Central Disaster and Safety Countermeasures Headquarters implemented a range of measures with respect to long-term care hospitals and residential facilities, including mandatory Covid-19 diagnostic tests for new residents, a restriction on entry by people other than patients, residents, and staff members, and visit bans or restrictions. ¹³⁷ In March 2021, the Central Disaster and Safety Countermeasures Headquarters relaxed these measures by expanding non-contact visits and allowing physical contact visits (without a sealed glass wall between the resident and the visitor) in the case of imminent death or a critically ill patient, when the attending physician recognized the need for a visit.¹³⁸ Contact visits were allowed under the strict conditions of undertaking a Covid-19 diagnostic test and wearing PPE.¹³⁹ Face-to-face visits in nursing hospitals and facilities were regularized from 30 April 2022 for fully vaccinated persons, subject to strict protocols.¹⁴⁰

70.  In the case of Covid-19 cluster infections in long-term care or residential facilities such as care hospitals, sanatoriums for elderly persons, psychiatric wards, or residential homes for persons with disabilities, the Government put hospitals and facilities under a measure called ‘cohort isolation’.¹⁴¹ This refers to complete isolation, under which patients, residents, and staff members were not allowed to leave the hospitals or facilities. In February 2020, the Government put the psychiatric ward in Daenam Hospital under ‘cohort isolation’.¹⁴² In March 2020, ‘preventive cohort isolation’ was also implemented by some local governments in the form of an executive order or recommendation at social welfare facilities, such as residential facilities for persons with disabilities and mental rehabilitation facilities.¹⁴³ This measure mandated residents and staff members to stay in the facilities and prohibited them from going out, on the grounds of high risk of infection due to communal living. In December 2020, amid a mass outbreak of Covid-19, a number of long-term care hospitals, sanatoriums, and residential facilities for vulnerable groups were again put under lockdown, on the grounds of shortages of beds to which confirmed patients could be transferred.¹⁴⁴

71.  Resident care facilities for children were also subjected to serious restrictions, as the Ministry of Health and Welfare, from late February 2020, prohibited residential children from exiting the facilities except for when they attended school, and from meeting outside visitors.¹⁴⁵ This policy severely infringed the children’s general right to freedom and to full socialization and growth. ¹⁴⁶ As late as November 2021, the Government announced a modified policy to allow resident children to leave facilities as needed.¹⁴⁷

72.  As mentioned in Part IV.A.8 above, the Government administered a vaccination plan which prioritized patients, residents, and staff members in long-term care hospitals and facilities.¹⁴⁸

73.  During the pandemic, public health officials undertook numerous tasks of high intensity for a prolonged period, including Covid-19 testing, notice and management of persons under self-quarantine, and vaccinations. Many of them experienced burnout due to heavy workloads, stress, and emotional exhaustion.¹⁴⁹

74.  Beginning in January 2020, when the first Covid-19 case was confirmed in South Korea, the police supported a wide range of tasks in response to Covid-19, including tracing confirmed cases, providing location information of individuals, and conducting epidemiological and criminal investigations. Police established the ‘Covid-19 Rapid Response Team’ to support epidemiological investigations and investigate persons who violated the Infectious Disease Control Act. ¹⁵⁰ As disease prevention measures were strengthened and extended, the role of the police expanded accordingly.

75.  The Ministry of National Defense launched the ‘National Defense Rapid Support Team’ to support the government response to Covid-19.¹⁵¹ The team performed tasks such as the distribution of face masks, emergency transportation of quarantine resources, disinfection and quarantine operations, and welfare support for vulnerable groups. The Ministry gave military personnel (sergeants or those higher in rank) supporting tasks in the pandemic response, such as inputting into the government system the results of epidemiological investigations, supporting the investigations of GPS and credit card tracing, and transferring samples.

76.  Criminal penalties were applied to violations of most infectious disease prevention and control measures. Under the Infectious Disease Control Act, criminal penalties of imprisonment or fines were imposed upon persons who violated compulsory dispositions, control measures, or preventive measures. Examples of criminally punishable violations include:

• •  refusing, obstructing, or evading epidemiological investigations;¹⁵²

• •  making a false statement in the course of epidemiological investigations;¹⁵³

• •  violating an order to close or suspend the operation of a facility;¹⁵⁴

• •  refusing to follow an order of hospitalization, quarantine, or isolation.¹⁵⁵

77.  From January 2020 to March 2022, 28,011 persons were reportedly charged with violating the Infectious Disease Control Act, of whom 13,906 (49.6%) were found guilty.¹⁵⁶ Most of the people who were prosecuted received criminal fines, but there have been cases where the court has sentenced a violator to imprisonment.

78.  Article 83 of the Infectious Disease Control Act stipulates that violations are subject to administrative fines. Any manager or operator of a facility who fails to comply with Covid19 preventative guidelines, such as preparing an entry list of visitors and ensuring facility users to wear a face mask, is subject to administrative fines up to 3,000,000 KRW.

79.  According to the Ministry of Land, Infrastructure and Transport, the use of public transportation such as buses and subways decreased by 26.8% in 2020 compared to 2019. Notably, the use of public transportation on weekends and holidays decreased by 36.1% in 2020 compared to 2019.¹⁵⁷

80.  The participation rate of the private sector in the Government’s Covid-19 measures and campaigns has generally been evaluated as high and active, including compliance with self-quarantine, ‘stay at home’ recommendations, physical distancing, mask-wearing, and monitoring among citizens. However, the degree of compliance in terms of physical distancing gradually decreased over time compared to the earlier period of the Covid-19 pandemic. This was attributed to the accumulated sense of fatigue in abiding by strict preventative measures and guidelines over an extended period of time.¹⁵⁸

Prof. Yoon Jin Shin, School of Law, Seoul National University

Prof. Joo-Young Lee, Human Rights Center, Seoul National University

Mr. Jehyung Jeong, Yi Gong Lawyers

Mr. Chae Wan Suh, MINBYUN- Lawyers for a Democratic Society