[Interview] Medical Law Expert Lawyer Dongchan Lee "Refusal to Return to Work Can Lead to Prosecution"

"Arrest and Prosecution Both Possible, Leader Charged with Obstruction of Business"
Dispute Over the Effectiveness of 'Business Commencement Order' Delivery

On the 21st, concerns over a medical crisis are growing due to the collective resignation and work stoppage of residents opposing the increase in medical school quotas. A notice about the shortage of medical staff is posted in the emergency room of a university hospital in downtown Seoul. Photo by Hyunmin Kim kimhyun81@

The government has taken a tough stance, stating that it will conduct arrest investigations on organizations or individuals leading the medical community's collective actions opposing the expansion of medical school admissions, intensifying the strong confrontation between the government and the medical sector.

The government plans to thoroughly investigate not only medical personnel participating in illegal collective actions but also those orchestrating or instructing these actions behind the scenes. Furthermore, those leading and backing the illegal collective actions who do not return to medical sites despite orders to resume work will, in principle, be subject to arrest investigations. Individual residents who refuse to return to work will also, in principle, be formally prosecuted and brought to trial.

The government has warned of punishments, including revocation of medical licenses, if orders to resume work are not followed, but opinions differ on whether these measures will actually be enforced.

Lee Dong-chan, the lead medical attorney at The Friends Law Office, said in an interview with Asia Economy on the 22nd, "It is not easy to punish all doctors who have effectively submitted resignation letters." While punishment for the leaders of the collective action may be effective, it is impossible to bring all doctors to trial when the majority of residents are leaving the field.

Below is a Q&A with Attorney Lee.

The government's position is that if residents do not return to hospitals, the leaders will face arrest investigations. Is this realistically possible?

I think we need to consider two things separately. First, regarding violation of the order to resume work, the Medical Service Act stipulates imprisonment of up to three years or a fine of up to 30 million won if the order is not followed. Even if a suspended sentence is given, the medical license will be revoked for more than three years. However, the punishment provisions are not limited to violation of the order to resume work; the Medical Service Act lists various violations and their maximum penalties, so it is questionable whether the maximum penalty will be applied for violating the order. Also, there are no administrative penalties specified for doctors who object to the order to resume work when they refuse to provide medical services individually. There are penalties for hospital founders who conduct collective strikes or closures, with a suspension of business for 15 days as the standard.

The government’s policy is to formally prosecute individual residents who refuse to return to work. Do you think this is feasible?

Prosecution is certainly possible. Even summary prosecutions requesting fines or penalties are considered prosecutions, so as long as the order to resume work is not followed, prosecution is possible. However, considering the structure of the Medical Service Act and the balance with administrative penalties, formal prosecution leading to license revocation is likely difficult, and it is more probable that prosecution will result in fines. For leaders, obstruction of business charges may apply. Since obstruction of business can lead to imprisonment, if prosecuted for this, even if the court suspends the sentence, license revocation is inevitable unless a fine is imposed. Therefore, punishment for leaders is expected to be effective.

Is it possible to obtain and execute arrest warrants?

Arrest warrants are also possible. The conditions for issuing an arrest warrant include not knowing the person's whereabouts or refusal to appear when summoned. If illegal acts are confirmed and the police determine there is obstruction of business, they can summon the individual, and if they refuse, an arrest warrant can be requested. However, at this point, it is not easy. While there are punishable aspects as announced by the government, it is uncertain whether this will effectively lead to doctors returning to work. There is concern it may provoke even greater backlash.

Orders to resume work are being delivered via residents’ mobile phones. If they do not receive the order by turning off their phones or other means, are they exempt from liability?

Lawyers have differing opinions on this. First, we need to look at the Administrative Procedures Act. It stipulates that delivery of administrative dispositions should be by mail as a principle, and only by information and communication networks if the party consents. There is no evidence that doctors consented to receiving delivery via information and communication networks. Delivering dispositions via information and communication networks without any consent is a procedural violation. Also, the expected method for delivery via information and communication networks is email, so whether sending text messages counts as delivery via information and communication networks is debatable. Our law states that if electronic documents are delivered via information and communication networks, they are considered received when input into the recipient's designated computer, leaving room for interpretation. If the delivery address is unknown or delivery is impossible, public notices can be made via official gazettes, bulletins, or daily newspapers, but this requires 14 days to pass and can only be claimed as immediate in urgent cases. The current situation does not appear to be one where delivery is impossible or the address is unknown. Under our law, urgency applies only when delivery is impossible. Therefore, when the validity of the current delivery method is disputed, there is a high possibility of a favorable judgment for the doctors.

Dongchan Lee, Chief Attorney at The Friends Law Office.