Prohibition against the Establishment of Plural Medical Institutions by a Medical Personnel with Plural Licenses

[19-2 KCCR, 795, 2004 Hun-Ma 1021, Dec. 27, 2007]

In this case, the Constitutional Court decided to be not conforming to the Constitution the provision in the Medical Act that a medical personnel with licenses of medical doctor and herb doctor could only establish one medical institution.

Background of the Case

The Medical Act (hereinafter, the provision at issue in this case) provides a medical personnel can establish only one medical institution. The complainants who are medical personnels with the licenses of medical doctor and herb doctor could not establish plural medical institutions for each license due to the provision at issue in this case, and brought this Constitutional Complaint claiming that the provision at issue in this case infringed upon the basic rights such as the freedom of occupation and equality right.

Summary of the Opinions

The Constitutional Court decided the statutory provision at issue in this case to be not conforming to the Constitution (non-conforming 7 : dismissed 2) and the reasons are as follows.

1. Summary of Majority Opinion by 7 Justices

A.Obtaining license means recovering freedom of occupation by the license. As for the freedom recovered like this, it is possible that National Assembly can legislate the methods and contents to attain the license based on the character of the professional field and judgment of policy-making. However, fully prohibiting this again would be out of the boundary of legislative power.

Medical personnels with plural licenses have relatively more knowledge and ability in both western and oriental medicine, and can get and analyze useful information on the effect which the medicines give to human body

and cope with that. Even considering the fact that the impact on human body has not been scientifically verified when western and oriental medical services are piled upon one another, it is enough that the law controls only dangerous spheres. Hence, fully banning even in spheres with no danger such as diagnosis went too far.

B.Medical personnels with plural licenses are treated on the same footing as those with single license in the point that they can establish only 'one' medical institution. Medical personnels with plural licenses graduated medical school and college of oriental medicine each, and passed national examination for medical doctor as well as herb doctor. Hence, they have relatively more knowledge and ability in both western and oriental medicine, can get and analyze useful information on the contents of his medical treatment of both western and oriental medicine and effect which their medical treatments give to human body, and more effectively cope with that. The provision at issue in this case which allowed medical personnels with plural licenses to establish only one single medical institution just like the medical personnels with single license treats 'different things equally,' and has no rational basis.

C.The provision in this case infringes upon the freedom of occupation and the right to equality of the complainants, medical personnels with plural licenses. However, this provision also applies to the medical personnel with single license. It is evident that medical personnels can directly give medical services anywhere if this provision loses force by the decision to be unconstitutional and legal vacuum takes place. In addition, the issue of in what scope and by what method the medical personnels with plural licenses can give medical services as a medical doctor and herb doctor when they are allowed to perform their double occupations ultimately belongs to the category that National Assembly decides after getting enough social consensus. Therefore, we issue 'the Decision of Non-Conforming to the Constitution' which orders tentative application of the provision at issue in this case.

2. Summary of Dismissal Opinion of Justice Lee Dong-heub

The restriction of constitutional rights by the provision in this case

destines the exercise of executive power such as administrative agency's retrocession of the establishment report and refusal of establishment permission since the establishment report to the concerned agency and permission by the agency are needed for medical personnel's establishment of medical institution.

Against this administrative disposition, a revocation suit is possible. Considering the fact that medical personnels with plural licenses are both medical doctor and herb doctor and the fact one of the purports of the provision is to put restrictions on the place where direct medical treatment can be made, the provision in this case could be interpreted to mean that the medical personnel with plural licenses can establish 'one medical institution as a medical doctor and another medical institution as a herb doctor' and that the institutions should be established in one place where direct medical treatment can be done. In this case, the administrative disposition could be cancelled and the infringement upon the freedom of occupation by medical personnels with plural licenses are eliminated.

Finally, the provision at issue in this case cannot be the object of Constitutional Complaint provided in Article 68 paragraph 1 of the Constitutional Court Act because the remedial procedure of general administrative action disputing the illegality of the administrative disposition and possibility to win at the administrative action exist.

3. Summary of Partial Unconstitutionality Opinion of Justice Cho Dae-hyen

A medical personnel with plural medical licenses can establish medical institutions for each licenses. The provision at issue in this case allows only the medical personnel with professional licenses to be engaged in direct medical treatment, and restricts the place establishing the medical institution to only one place in order to prevent unlicensed personnel from managing a medical institution. Hence, the aim and means of the provision are reasonable, and it is not against the Principle of Proportionality because it is enacted to secure the effectiveness of professional license system. Therefore, the provision at issue in this case is not unconstitutional

The Ministry of Health & Welfare interprets 'one' medical institution in

this case as 'one kind of' medical institution. This interpretation restricts the freedom of occupation of the medical personnel who got the license of medical doctor and that of herb doctor and are permitted to do both the western medical treatment and oriental one. The rational reason to justify the restriction of freedom cannot be found. Therefore, the provision at issue in this case is against Article 15 and Article 37 Section 2 of the Constitution.

Finally, the provision at issue in this case could be interpreted to be constitutional and only its interpretation by the Ministry of Health & Welfare is against the Constitution. Therefore, we cannot declare the provision at issue in this case to be unconstitutional or not conforming to the Constitution, and we just can declare unconstitutional the interpretation that interprets "one medical institution" as "one kind of medical institution."