17. Prohibition of Unlicensed Medical Practice

[22-2(A) KCCR 37, 2008Hun-Ka19, 2008Hun-Ba108, 2009Hun-Ma269· 736, 2010Hun-Ba38, 2010Hun-Ma275(Consolidated), July 29, 2010]

In this case, the Court ruled the provisions of the Medical Service Act and the Act on Special Measures for the Control of Public Health Crimes which ban and punish unlicensed medical practices constitutional as they are not contrary to the rule against excessive restriction and do not infringe on non-medical practitioners' freedom of occupation or action and medical consumers' right to choose their medical treatment, and also because the portions concerning the medical practice of "a doctor" and "a herbal doctor" do not contradict the principle of legality (nullum crimen sine lege, nulla poena sine lege) and clarity. Five Justices who held the provisions unconstitutional constituted a majority but fell short of the quorum of six votes required to declare them unconstitutional.

Background of the Case

1. 2008Hun-Ka19

The requesting petitioner was prosecuted for, although not a medical practitioner, committing unlicensed practice of medicine and, with the underlying case pending, filed a motion to request a constitutional review of a provision of the Medical Service Act which bans unlicensed medical practices. The requesting court filed for a constitutional review of the former part of the main sentence of Article 27 Section 1 of the Act.

2. 2008Hun-Ba108

The complainants, who were not doctors yet engaged in medical practices for commercial gain, were prosecuted for allegedly violating the Act on Special Measures for the Control of Public Health Crimes, and, with the appeal pending, filed a motion to request a constitutional review of the former part of the main sentence of

Article 25 Section 1 of the Medical Service Act, a portion of Article 66 Item 3 concerning the former part of the main sentence of Article 25 Section 1 of the Act, a portion of the former Act on Special Measures for the Control of Public Health Crimes concerning the former part of the main sentence of Article 25 Section 1 and that concerning the medical practice of "a doctor" of the Medical Service Act. When the motion was denied, the complainants filed for a constitutional complaint challenging the constitutionality of the aforementioned provisions.

3. 2009Hun-Ma269

The complainants are those who intend to practice alternative medicine including acupuncture, and they filed a constitutional complaint with the Constitutional Court to challenge the constitutionality of Article 27 Section 1 and Article 87 Section 1 Item 2 of the Medical Service Act, as well as the inaction of not having adopted a system based on which non-medical practitioners can also engage in acupuncture and alternative medicine, arguing that the provisions infringe on their freedom of occupation.

4. 2009Hun-Ma736

The complainant, who was disciplined for practicing herbal medicine although not being a herbal doctor, filed a constitutional complaint with the Constitutional Court requesting a constitutional review of Article 5 of the Act on Special Measures for the Control of Public Health Crimes and Article 27 Section 1 of the Medical Service Act, arguing that the provisions infringe on his freedom of occupation.

5. 2010Hun-Ba38

The complainant was prosecuted for violating the Act on Special Measures for the Control of Public Health Crimes by practicing herbal medicine without a herbal doctor's license, and, with the appeal pending, filed a motion to request a constitutional review of Article 5 of the Act on Special Measures for the Control of Public Health

Crimes and the former part of the main sentence of Article 27 Section 1 of the Medical Service Act. When the motion was denied, however, the complainant filed a constitutional complaint challenging the constitutionality of the provisions.

6. 2010Hun-Ma275

The complainants are those who intend to practice alternative medicine including acupuncture, and they filed a constitutional complaint requesting a constitutional review of the legislative inaction of not having stipulated the qualifications and requirements for non-medical practitioners to practice acupuncture and other alternative medicine, arguing that such inaction is against the Constitution.

Provisions at Issue

Medical Service Act (Wholly Amended by Act No. 8366, Apr. 11, 2007)

Article 27 (Prohibition of Unlicensed Medical Practice, etc.)

(1)Any non-medical person shall not perform medical practice, and even a medical person shall not perform any medical practice other than those licensed.

Article 81 (Quasi-Medical Person)

(1)Notwithstanding Article 27, any bone-setter, acupuncturist or moxibustionist (hereinafter referred to as "quasi-medical person"), who has been accredited pursuant to the former provisions before this Act enters into force, may engage in such profession within his/her place of practice.

Article 87 (Penal Provisions)

(1)A person, who falls under any of the following subparagraphs, shall be sentenced to imprisonment for a term of not more than five years or a fine not exceeding 20 million won.

2.A person who violates Articles 12 (2), 18 (3), 23 (3), 27 (1), and 33 (2) and (8) (including a case to which said paragraph shall apply mutatis mutandis pursuant to Article 82 (3).

Former Medical Service Act (Partially Amended by Act No. 2862, Dec. 31, 1975; Later Wholly Amended by Act No. 8366, Apr. 11, 2007)

Article 25 (Prohibition of Unlicensed Medical Practice, etc.)

(1)Any non-medical person shall not perform medical practice, and even a medical person shall not perform any medical practice other than those licensed.

Former Medical Service Act (Partially Amended by Act No. 4732, Jan. 7, 1994; Later Wholly Amended by Act No. 8366, Apr. 11, 2007)

Article 66 (Penal Provisions)

(1)A person, who falls under any of the following subparagraphs, shall be sentenced to imprisonment for a term of not more than five years or a fine not exceeding 20 million won:

3.A person who violates Articles 12 (2), 18-2 (3), 21-2 (3), 25 (1), and 30 (2) (including a case to which said paragraph shall apply mutatis mutandis pursuant to Article 61 (3).

Act on Special Measures for the Control of Public Health Crimes (Partially Amended by Act No. 8366, Apr. 11, 2007)

Article 5 (Punishment for Illegal Medical Practitioners)

A person, neither a doctor nor a dentist nor a herbal doctor, who practices medicine for the purpose of commercial gain, in violation of Article 27 of the Medical Service Act, shall be sentenced to imprisonment for life or for not less than two years. In such cases, a fine not less than one million won but not more than ten million won shall be concurrently imposed.

Act on Special Measures for the Control of Public Health Crimes (Partially Amended by Act No. 4293, Dec. 31, 1990; Later Partially Amended by Act No. 8366, Apr. 11, 2007)

Article 5 (Punishment for Illegal Medical Practitioners)

A person, neither a doctor nor a dentist nor a herbal doctor, who practices medicine for the purpose of commercial gain, in violation of Article 25 of the Medical Service Act, shall be sentenced to imprisonment for life or for not less than two years. In such cases, a

fine not less than one million won but not more than ten million won shall be concurrently imposed.

Summary of the Decision

For the reasons stated below, the Court held, in a vote of 4 to 5, the provisions of the Medical Service Act and the Act on Special Measures for the Control of Public Health Crimes which ban and punish unlicensed medical practices (hereinafter the "instant provisions") constitutional as they are not contrary to the rule against excessive restriction and do not infringe on the non-medical practitioners' freedom of occupation or action and medical consumers' right to choose their medical treatment, and also because the portions concerning the medical practice of "a doctor" and "a herbal doctor" do not contradict the principle of legality and clarity.

1. Concurring Opinion of Four Justices

In comprehensive consideration of factors including the legislative purpose of the Medical Service Act, a number of regulations set forth in the Act which concern the mission of medical practitioners, the Supreme Court's decisions on the definition of a medical practice and the history of statutes related to the practice of herbal medicine, the definition of a medical practice of "a doctor" and "a herbal doctor" seems neither unlikely to be identified as one single meaning by a person of sound judgment and common sense nor hardly likely to be interpreted in multiple ways by judges. Therefore, the portions of the instant provisions concerning the medical practice of "a doctor" and "a herbal doctor" do not violate the principle of legality and clarity.

A total ban on non-medical practitioners' medical practice is an adequate action to protect the right to life and health of individuals as significant legal interests set forth in the Constitution, as well as to fulfill the state's duty to protect public health, and such major public interests cannot be efficiently realized by other means which are less invasive of people's fundamental rights. For this reason, the restriction

on fundamental rights imposed by the instant provisions is not in violation of the rule against excessive restriction and is thus constitutionally justified.

2. Supplementing Opinion of One Justice

The protection of public health as prescribed by Article 36 Section 3 of the Constitution refers to the right of individuals to demand the benefits and care required for their own health from the state, and the state has to go beyond its passive role of not violating the health of citizens and assume its duty to proactively devise and implement public health policies. In that sense, it better suits the purpose of Article 36 Section 3 of the Constitution to include quasi-medical practice or treatment in complementary and alternative medicine based on research and verification or to develop a separate system designed for such areas of medicine that citizens can adhere to.

3. Dissenting Opinion of Four Justices

For medical practices less likely to harm life, body or public health and sanitation (e.g. acupuncture), it is possible to guarantee people's right to choose their medical treatment and freedom of occupation to the fullest extent while serving the legislative purpose of the instant provisions by allowing people to obtain licenses also for medical functions requiring less skill than those of licensed doctors and legalizing medical practices within the licensed area. Nevertheless, the instant provisions do not require any adequate license system for medical practices less likely to harm life, body or public health and sanitation but totally ban non-medical practitioners' medical practice, thereby violating the rule against excessive restriction and infringing upon medical consumers' right to choose their medical treatment and non-medical practitioners' freedom of occupation.

4. Dissenting Opinion of One Justice

The instant provisions allow for the exclusive right of established medical practitioners and prohibit the entire medical practice of

non-medical practitioners, imposing even criminal punishment in case of violation. By doing so, the instant provisions criminalize and make it impossible to turn to any medical practice managed by non-medical practitioners even in the following cases: i) diagnosed as incurable by a medical practitioner, ii) unable to opt for medical practitioners' practice due to excessive medical costs, iii) a disease is cured thanks to non-medical practitioner's medical care and iv) medical practices such as acupuncture, moxibustion and magnetic therapy which have low risk of side effects and, if discontinued, can easily restore the patient to the original state. As a result, the contested provisions violate the rule against excessive restriction and infringe on medical consumers' right to choose their medical treatment.