If the Medical Service Act allows medical personnel to provide medical services within a medical institution, it would be due to the need for health care policy to prevent in advance any harm to medical order and serious harm to public health and sanitation caused by the deterioration of the quality of medical care and the infringement of the patient's right to receive proper medical care.

In addition, Article 34(1) of the Medical Service Act provides that “A medical person may give remote medical treatment to a medical person who is in a remote place by using information and communication technology, such as computer and video communication, notwithstanding Article 33(1),” thereby deeming the exception to Article 33(1) of the Medical Service Act that provides medical knowledge or technology at a remote place by a medical person, and allowing it to be limited to the act of a medical person on the part of a medical person.

In addition, considering the current medical technology level, in cases where a medical person provides medical services to a patient in a remote area through telephone, etc., it is difficult to expect the same level of medical services as the general medical practice conducted by observing the patient's condition near the patient and observing the patient's condition, and due to the lack of information on patients and restrictions on the use of facilities or equipment installed in a medical institution, it is highly likely that improper medical practice will occur, and as a result, it may cause serious danger to public health and sanitation. Such medical practice is contrary to the purpose of Article 33(1) of the Medical Service Act, and this is also the reason why the Medical Service Act limits telemedicine.

In full view of the foregoing circumstances, it is reasonable to deem that a medical person’s medical practice conducted by a patient in a remote area by telephone, etc. violates Article 33(1) of the Medical Service Act, barring any special circumstance. This also applies to “the case of medical treatment at the request of a patient or his/her guardian” under Article 33(1)2 of the Medical Service Act.

Article 33(1) of the Medical Service Act provides, “Medical persons shall not engage in medical service unless they establish a medical institution under this Act, and shall provide medical service within the medical institution, except in any of the following cases:

The Medical Service Act provides medical services to medical personnel in a medical institution, not so, is based on the need for health and medical policy to prevent any harm to medical order and serious harm to public health and hygiene (see Supreme Court Decision 2010Du26315, Apr. 14, 201).

In addition, Article 34(1) of the Medical Service Act provides, “A medical person may give remote medical treatment to a medical person who is in a remote place by using information and communication technology, such as computer and video communication, notwithstanding Article 33(1),” thereby deeming the exception under Article 33(1) of the Medical Service Act to provide medical knowledge or technology at a remote place by a medical person, and on the other hand, it is limited to the act of a medical person on behalf of a medical person.

In addition, considering the current medical technology level, in cases where a medical person provides medical services to a patient in a remote area by telephone, etc., it is difficult to expect the same level of medical services as the general medical practice conducted by observing the patient's condition in close to the patient, and due to the lack of information on the patient, restrictions on the use of facilities or equipment installed in the medical institution, etc., it is highly likely that improper medical practice will occur, and as a result, it may cause serious danger to the public health and sanitation. Such medical practice is contrary to the purpose of Article 33(1) of the Medical Service Act as seen earlier, and it is also the reason why the Medical Service Act limits telemedicine.

In full view of the foregoing circumstances, it is reasonable to deem that a medical person’s medical practice conducted by a patient in a remote area by telephone, etc. violates Article 33(1) of the Medical Service Act, barring any special circumstance. This also applies to “the case of medical treatment at the request of a patient or his/her guardian” under Article 33(1)2 of the Medical Service Act.

For the reasons indicated in its holding, the lower court found the Defendant guilty of the instant facts charged on the ground that the Defendant’s treatment of the patient by telephone at the request of the patient does not constitute “the treatment at the request of the patient or his/her guardian” under Article 33(1)2 of the Medical Service Act and did not constitute “the act of violation of Article 33(1) of the Medical Service Act.”

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the Medical Service Act, contrary to what is alleged in the grounds

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)