Whether a medical person’s medical practice conducted for a patient in a remote area by using information and communications technology beyond the medical person’s act constitutes a violation of Article 33(1) of the Medical Service Act (affirmative in principle)

Articles 33(1), 34(1), and 90 of the Medical Service Act

Supreme Court Decision 2010Du26315 Decided April 14, 201 (Gong2011Sang, 938) Supreme Court Decision 2015Do13830 Decided November 5, 2020 (Gong2020Ha, 2340)

Defendant

Defendant

Seoul Central District Court Decision 2015No3758 decided December 17, 2015 and 2015 early 3183 Request for Adjudication on unconstitutionality

The appeal is dismissed.

The grounds of appeal are examined.

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:

As above, the Medical Service Act stipulating that a medical person be engaged in medical service within a medical institution provides medical services. However, if it does not so, the medical order would be disturbed due to degradation of the quality of medical care and infringement of the patient’s right to receive proper medical treatment, and the risk to public health and hygiene would be caused, and thus, it would be in accordance with the need for health and medical policy to prevent such act in advance (see Supreme Court Decision 2010Du26315, Apr. 14, 20

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),” while recognizing the exception under Article 33(1) of the Medical Service Act, the act of remote medical treatment by a medical person who is allowed is limited to the act of a medical person in the area of a medical person.

In addition, considering the current medical technology level, in cases where a medical person provides medical services to a patient located in a remote area through telephone, etc., it is difficult to expect a patient's condition close to the patient and observe the patient's condition, and it is also difficult to expect an appropriate level of medical services due to lack of information on patients and restrictions on the use of facilities or equipment installed in a medical institution, etc., and as a result, it cannot be ruled out that there is a possibility that serious risk to public health and sanitation. This is against the purpose of Article 33(1) of the Medical Service Act as a result contrary to the purpose of Article 33(1) of the Medical Service Act, and it is also the main reason why the current Medical Service Act limited only grants remote medical treatment.

In full view of the foregoing circumstances, it is reasonable to deem that a medical person’s medical practice conducted by a patient remotely by using information and communications technology beyond a large medical person’s act violates Article 33(1) of the Medical Service Act, barring any special circumstance.

For the reasons indicated in its holding, the lower court convicted the Defendant of the facts charged of the instant case, on the grounds indicated in its reasoning, that the Defendant engaged in medical practice, such as performing only literary work, prescribing herb drugs,

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err in its judgment by failing to exhaust all necessary deliberations or by misapprehending the legal doctrine on the Medical Service Act, contrary to what is alleged in the grounds of appeal. The Supreme Court precedents cited in the grounds of appeal are different from the instant case

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

Justices Kim Jae-hyung (Presiding Justice)