Case Law Analysis of Medical Treatment Refusal Against People Living with HIV : The Persistence of Discrimination Despite Constitutional Equality and Ethical Obligations
- 주제(키워드) HIV/AIDS , medical discrimination , Korea , constitutional equality , National Human Rights Commission , Standard Precautions , enforcement mechanisms , implementation failure , policy reform
- 발행기관 서강대학교 일반대학원
- 지도교수 김보혁
- 발행년도 2026
- 학위수여년월 2026. 2
- 학위명 석사
- 학과 및 전공 일반대학원 글로벌법무학협동과정
- 실제URI http://www.dcollection.net/handler/sogang/000000082607
- UCI I804:11029-000000082607
- 본문언어 영어
- 저작권 논문은 저작권에 의해 보호받습니다.
초록(요약문)
This dissertation is focusing on the paradox that exists in Korean healthcare law, where medical discrimination against HIV patients is the one that has been singled out, despite the fact that there are clear protections from the constitution (Article 11), explicit prohibitions by the statute (Medical Service Act Article 15, NHRCK Act Article 2(3)) and 14 years of the consistent findings by the National Human Rights Commission of Korea (NHRCK) that in all most cases, discrimination can be found. The research through the study of constitutional law, seven NHRCK decisions (2011-2025), comparative American law, and policy recommendations based on the evidence proves that the core issue is not lack of clarity of the law but rather the failure of its implementation – the gap between the principle of the constitution and clinical practice, between legal obligation and institutional compliance. The research work refers to an interconnected three-pillar conceptual legal framework that unfolds step by step how denial of treatment based on the HIV fact pattern is not legally possible in Korea: (1) Voluntary Risk Acceptance doctrine clarifying that healthcare professionals accept a risk under the condition that it is manageable; (2) Standard Precautions being the objective legal benchmark for which the transmission of HIV is reduced to 0.3 percent—considerably less than hepatitis B (30%) and hepatitis C (1.8%); and (3) Constitutional equality requiring that "justifiable grounds" be interpreted in harmony with fundamental equality protections. The seven NHRCK decisions provide evidence of absolute unanimity in their discrimination findings in different medical settings—hip replacement, otitis media surgery, endoscopy, hand surgery, disc resection, nasal septum surgery, cervical stenosis surgery—showing that Standard Precautions make occupational risks manageable and that healthcare providers cannot refuse to perform a legally mandated procedure if infection control can be implemented. Comparative research points to the source Korean and American legal principles being functionally equivalent but the enforcement aspects and practices being quite different. Whereas the U.S. HHS Office for Civil Rights can exercise a great deal of power (investigation, penalties, leverage over funding, compliance monitoring), the Korean NHRCK is without binding authority—recommendations are advisory in nature, therefore, deterrence is not efficient. Most importantly, South Korea's non-disability equality model framework that treats PLHIV as normal people with rights to equality under the constitution is better in terms of concepts than the American disability-based approaches which require medicalization and the establishment of the disabled status. Korea has a doctrinal advantage and thus should be focusing on strengthening the existing enforcement instead of adopting the American disability model. The dissertation attributes the persistence of discrimination to three reasons: the vertical compliance failure as legal norms are lost during their passing through institutional hierarchies; the horizontal enforcement fragmentation where no agency has the full jurisdiction; and the knowledge asymmetries that result in the differences not only between the regions but also between the institutions. The comprehensive reforms are suggested to be implemented in five areas: legislative amendments that give the NHRCK enforcement authority together with civil penalties and a mandatory professional board referral; the enforcement mechanisms such as graduated discipline, accreditation integration, private litigation rights, and national surveillance; the integration of professional education by making it a mandatory part of medical school curricula and a continuing education requirement; the institutional implementation through hospital policies and compliance monitoring; and a phased timeline over 15 years with quite realistic expectations basing on the American experience. The core argument of the dissertation is that those legal rights which are deprived of enforcement mechanisms are nothing but principles which are to be aspired to. The NHRCK jurisprudence over the period of fourteen years has been instrumental in establishing what the law requires. The next stage should be devoted to the enforcement of the law. Korea has to provide institutional accountability, professional practice norms, and enforceable consequences besides the Constitutional Article 11's promise. The law is very clear. The issue is the enforcement. The fix is institutional accountability.
more목차
Chapter 1. Introduction １
1.1 Research Background and Problem Statement １
1.2 The Legal and Medical Framework ６
1.3 Comparative Context: American Protections and International Standards １７
1.4 Research Design and Central Argument ２０
Chapter 2. Theoretical and Legal Framework ２２
2.1 Introduction: From Concepts to Doctrine ２２
2.2 Voluntary Risk Acceptance: From Professional Doctrine to Constitutional Obiigation２３
2.3 Standard Precautions and Medical-Legal Implementation ２９
2.4 Constitutional Framework and Statutory Implementation ３２
2.5 NHRCK Policy Recommendations and International Consensus ３９
2.6 Integrated Legal Framework and Practical Application ４２
Chapter 3. Korean Case Law Analysis – NHRCK Decisions on HIV-Based Medical Discrimination ４６
3.1 Introduction: From Theory to Jurisprudence ４６
3.2 The Nine-Case Dataset and Exclusion Rationale ４７
3.3 Case 1: NHRCK Decision 11진정0034200 (June 10, 2011) ４９
3.4 Case 2: NHRCK Decision 14진정0951100 (November 30, 2016) ５１
3.5 Case 3: NHRCK Decision 18진정0160000 (November 21, 2018) ５３
3.6 Case 4: NHRCK Decision 21진정0640400 (July 14, 2022) ５５
3.7 Case 5: NHRCK Decision 22진정0567700 (May 16, 2023) ５７
3.8 Case 6: NHRCK Decision 24진정0020400 (December 16, 2024) ５９
3.9 Case 7: NHRCK Decision 24진정0587100 (January 21, 2025) ６２
3.10 Cross-Case Analysis: Jurisprudential Patterns ６４
3.11 Synthesis: Jurisprudential Framework and Future Implications ６８
Chapter 4. Comparative Legal Analysis: American Jurisprudence and
Institutional Systems ７０
4.1. Introduction: Why Comparative Law Analysis Matters ７０
4.2. The American Legal Framework: Multi-Layered Protections ７２
4.3. Professional Ethics Standards in American Medicine ８１
4.4. Non-Disability vs. Disability Frameworks: Korean Doctrinal Advantage ８６
4.5. Enforcement Mechanisms: The Critical Difference ９１
4.6. Professional Ethics Standards and Medical Education ９４
4.7. Synthesis: What Comparative Analysis Reveals ９７
Chapter 5. Policy Recommendations and Implementation Strategy ９９
5.1. Introduction: From Legal Clarity to Lived Reality １００
5.2. Root Cause Analysis: Why Discrimination Persists １０２
5.3. Legislative Reforms: Establishing Clear Standards and Enforcement Authority １０９
5.4. Enforcement Mechanism Reform: Creating Accountability with Consequences １１５
5.5. Education and Culture Change: Long-Term Institutional Integration １２３
5.6. Implementation Strategy and Realistic Timeline １２９
5.7. Conclusion: Translating Legal Clarity into Lived Reality １３５
Chapter 6. Conclusion and Summary １３９
