2024-02-29 07:49:15
picture explanation,
The government reaffirmed its existing position on the 29th, saying, “We will not hold any responsibility for residents if they return by today,” but many residents are still not returning.
Article related information
- Reporter, Lee Rae-hyeon
- Reporter, BBC Korea
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an hour ago
Although the deadline for the return of majors suggested by the government is approaching, the movement to return to work still appears to be slow.
On the morning of the 29th, the Ministry of Health and Welfare announced in a briefing that 294 residents had returned to the medical field as of 11 a.m. on the 28th, the previous day, and that the rate of those leaving the workplace has been decreasing for the second day.
Previously, the Ministry of Public Administration and Security sent an ultimatum to residents who left their workplace on the 26th, saying, “If you return to the hospital by the 29th of this month, we will not hold you responsible for the past.”
He then said that from March onwards, license suspensions of at least three months and judicial proceedings will be taken in accordance with the law for those who fail to return, and urged, “We hope for dialogue and discussion for the future of medical care in Korea.”
In response to the government’s announcement, the Emergency Response Committee of the Korean Medical Association criticized it as a “threatening statement” and said, “It is an unbelievable level of intimidation that warns medical students and residents that they may be deprived of their freedom to relocate and choose a career.” pointed out.
Is license suspension possible?
Legal measures that can be taken once morest individual doctors include ‘license cancellation’ and ‘license suspension’.
License revocation is a more stringent sanction than suspension. Therefore, this incident of residents leaving the hospital as a group is more likely to lead to license suspension rather than license revocation.
Regarding the license suspension, Park Min-soo, Second Vice Minister of Health and Welfare, said on the 26th, “The reason will remain in the record and may affect future medical treatment, such as employment abroad.”
For some medical residents, the ‘three-month license suspension’ warned by the government might be fatal.
For each subject, residents with 4 years of training must meet a minimum of 3 years and 10 months of service, and those with 3 years of training must meet a working period of 2 years and 10 months to be eligible to take the specialist exam. Intern doctors can also complete the program if they work for at least 10 months in a year.
In other words, for them, 3 months is a period in which the entire training schedule can be delayed by a year.
In the case of license cancellation, whether or not reissuance is possible depends on the reason for cancellation.
After completing the sentence, a license can be reissued following completing more than 40 hours of training with the consent of a majority of five people at the Ministry of Health and Welfare’s License Reissuance Deliberation Subcommittee. Depending on the reason for cancellation, applications for reissuance may be restricted for up to 10 years.
If a license has been issued through false or fraudulent means, re-issuance is not possible.
Lee Dong-chan, a representative medical lawyer at The Friends Law Firm, explained to BBC Korea, “The government’s current order to commence work for doctors’ collective action is an order under the Medical Service Act,” and “This order is a possible reason for administrative license suspension.” .
Attorney Lee said, “However, bigger problems may arise for the ‘leaders’ than that,” and warned that the leaders and those behind the collective action of medical residents may be subject to mandatory license revocation according to the law revised last November. did.
The Medical Service Act will be revised in November 2023, and medical licenses may be revoked for medical practitioners who are sentenced to ‘imprisonment or higher’ under the general criminal law.
In other words, in addition to violating medical laws, additional grounds for license revocation and suspension have been established.
Attorney Lee said, “The leaders may be guilty of ‘obstruction of business’ for interfering with hospital business rather than ordering business to begin. “If the prosecutor selects imprisonment for this crime and is found guilty, the person in question will have his or her license revoked,” he said.
However, he added, “If the licenses of the leaders are actually revoked, resistance from the entire medical community may become more severe, so it is unclear whether it will lead to actual license cancellation.”
picture explanation,
On the 27th, the Ministry of Health and Welfare filed a complaint once morest five medical professionals, including Kim Taek-woo, chairman of the Korean Medical Association’s Emergency Response Committee, on charges of violating business start orders and obstruction of business.
The government announced on the 27th that it had filed a complaint once morest five association officials, including current and former presidents of the medical association, on charges of violating medical laws and causing and abetting obstruction of business.
Regarding the standards for ‘initiators’ who are guilty of obstruction of business, lawyer Lee said, “There is no exact list yet, but I think it would also include the presidents of resident councils at individual hospitals.”
On the other hand, the doctors’ position is different. They claim that they did not stop treatment as a group, but at the discretion of individual doctors.
In fact, the emergency committee of the Korean Medical Association said, “Article 15 of the Constitution of the Republic of Korea states that all citizens have the freedom to choose an occupation, and the freedom to choose an occupation includes the freedom to quit one’s job,” and “forced workers who resigned through orders.” He expressed his position by asking, “Is the Republic of Korea, which makes people work, really a liberal democratic country?”
Attorney Lee ultimately said, “This is something that can only be found out following the ruling.”
“The arguments of both sides have already been decided. The government will say that the doctors’ claims are groundless because they took collective action in the nature of a strike at one time on one day, and the doctors will argue that we really wanted to quit for personal reasons. “It remains to be seen whether the court will see this as a personal freedom or a necessity for the public interest.”
However, lawyer Lee said that it is unclear whether both sides will actually go to court.
It is expected that the majority of cases will end in political compromise, but key figures and leaders of collective action may still go to trial.
Is there really no legal effect if I don’t answer the phone?
Recently, in the medical community, measures to deal with business start-up orders have spread, such as “Never open the door or sign” when delivering by mail, and “Never check and do not answer unknown calls” when delivering via text message on a mobile phone.
There are differing opinions as to whether this method is actually effective.
Attorney Lee explained, “In principle, two requirements must be met for administrative disposition.”
According to the Administrative Procedure Act, the form of the disposition must be in a certain format and the disposition must be delivered. In principle, the administrative disposition must be prepared as a paper document and delivered through registered mail at the post office or direct delivery, but recent information and communication technology With the development, it has become possible to deliver electronic documents through information and communication networks.
Delivery through information and communications networks is subject to the condition that it must be carried out with the consent of the other party.
Then, in 2022, a new regulation was established that administrative dispositions can also be made through words, text, or email over the phone. However, no regulations have been established regarding how dispositions should be served by phone, text, or email.
Attorney Lee said, “Common sense tells us that the words and phone calls were delivered immediately. But the problem is that there are no regulations on what constitutes delivery of text messages and emails.”
“The government considers (texts and emails) to be delivered immediately following they are sent, just like verbal phone calls, but there is no court precedent yet. Doctors argue that text messages and e-mails, by their nature, are the same as information and communications network delivery of electronic documents, and ultimately require the consent of the other party. “You will have to go to court to find out who is right regarding this.”
He explained that there are always ‘ambiguous’ issues in the medical law, and that since it was not created to prepare for a conflict between doctors and the government, it is revised through court judgment whenever such a conflict arises.
“These are situations where it is difficult to determine who is absolutely right, so the government is saying that the government has its own legal basis, and the doctors are saying that the doctors have their own legal basis. “In the end, we have to follow the court’s decision.”
Starting on the 28th, the government has been increasing the intensity of its response by visiting the homes of medical residents and delivering orders to commence work.
It is understood that direct issuance was carried out only in cases where it was not received during on-site delivery, text delivery, or mail delivery.
Kim Choong-hwan, head of the legal support team at the Central Accident Control Headquarters of the Ministry of Health and Welfare, said on the 29th, “The suspension will not go into effect immediately following March 4th,” and added, “We will go through procedures such as prior notice and an opportunity to express opinions.”
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