In a case where the disposition of the suspension of qualification of an invasionr on the ground of a violation of the Medical Service Act was taken on January 15, 200 in relation to the act of the oral surgery, which sets the top-down to the patient, the case holding that the relevant disposition cannot be deemed to have deviated from or abused the discretionary authority.

In a case where the disposal of qualification suspension on the ground of the violation of the Medical Service Act was made on January 15, 200 on the ground that an invasion without any qualification for the Gu death was committed against the patient, the case holding that the disposal cannot be viewed as a deviation from or abuse of discretionary authority, on the ground that the act of life-sustaining other than the licensed practice is not permissible under Article 27 (1) of the Medical Service Act prohibiting the medical practice other than the licensed practice.

Articles 27(1), 66(1)4, and 81(1) and (2) of the Medical Service Act

Plaintiff (Attorney Kim Sung-hwan, Counsel for the plaintiff-appellant)

Seoul Special Metropolitan City Mayor (Law Firm Chungcheong, Attorney Lee Hong-hoon, Counsel for the plaintiff-appellant)

April 17, 2009

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant revoked the disposition of January 15 (from October 1, 2008 to November 15, 2008) of qualification suspension against the plaintiff on September 18, 2008.

1. Details of the disposition;

A. On June 18, 2008, the Plaintiff: (a) performed a bedying procedure with the trade name “○○○○○○○○○ Place” in Dongdaemun-gu Seoul (hereinafter the location omitted); (b) visited approximately 50 patients who visited the above bedying place on June 18, 2008, performed a bedying procedure without compensation, setting the top of 0.3cm with the relevant light blood.

B. On July 28, 2008, the Defendant, from the Seoul Northern District Prosecutors' Office, ordered the Plaintiff to suspend indictment on the violation of the Medical Service Act, "the Plaintiff committed a medical act other than the licensed medical act without the qualification of the Gu death." On September 18, 2008, on the ground of the violation of the above Medical Service Act, issued a disposition of January 15 (hereinafter referred to as "the instant disposition") of suspension of qualification for the Plaintiff on September 15 (from October 1, 2008 to November 15, 2008) in accordance with the administrative disposition criteria under Article 66 (1) 4 of the Medical Service Act and Article 4 of the Rules on Administrative Dispositions on Medical Relations.

[Reasons for Recognition] Evidence A 1 to 5, Evidence B 1, 6, 7 (including paper numbers), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The instant disposition is unlawful on the following grounds.

(1) First, as it is not a medical person stipulated in Article 2 of the Medical Service Act, Article 27(1) of the Medical Service Act does not apply, and as well, Article 81(1) of the Medical Service Act merely provides that even if the pertinent duties are performed before the Medical Service Act enters into force, she shall not be deemed as a violation of the Medical Service Act, and it does not provide that she shall exclusively engage in her duties, such as sheds, beds, beds, beds, and beds, and beds. Therefore, it shall not be prohibited from performing her duties.

(2) Second, the latter part of Article 27(1) of the Medical Service Act prohibits the case where the treatment result is successful, even if it is a medical practice other than the licensed one. Since it is impossible to conduct life-sustaining treatments which can be simply verified and conducted under private law for a long time, it violates the principle of excessive prohibition by infringing the right to pursue happiness of the Plaintiff and the patient, and also violates the principle of legal certainty by clarifying the concept of the medical practice under the above provision.

(3) Third, Article 27(1) of the Medical Service Act provides that an oriental medical doctor, who does not contain bedclothes, can perform bedclothes operations; the mutual complementary relationship between the bed and the oral statement; the method of relatively simple treatment; the degree of danger to the human body; the conduct of bed and oral simultaneous treatment; and the provision of Article 2 of the Rules on Singing and Escoping Practice; and the conduct of bedoping operations, not only the conduct of bedoping operations, but also the conduct of bedoping operations. In light of the above, Article 27(1) of the Medical Service Act provides that an oriental medical doctor, as well as the conduct of bedoping operations, shall be construed.

(4) Fourth, in light of the fact that the Plaintiff, free of charge, shown only the demonstration of the previous procedure to the patients, and that the previous procedure is not an act violating the social rules, the instant disposition is too harsh.

B. Relevant statutes

It is as shown in the attached Form.

(c) Markets:

(1) As to the first argument

According to Articles 27(1), 81(1), and 81(2) of the Medical Service Act, life-sustaining and life-sustaining and life-sustaining and life-sustaining and all are “medical care providers,” which are applicable mutatis mutandis to medical personnel under the Medical Service Act. Thus, life-sustaining and life-sustaining and life-sustaining are prohibited from providing medical services other than qualified ones. Article 2(3) and (4) of the Regulations on Assistants and Medical Care Providers delegated with regard to the medical care provider’s practice, the limitation of the duties of life-sustaining and life-sustaining and prescribing the limitation of the duties of life-sustaining. Accordingly, life-sustaining and life-sustaining and life-sustaining, other than qualified life-sustaining and life-sustaining. Therefore, the Plaintiff’s first assertion is without merit.

(2) As to the second argument

(A) Medical practice covers a person’s body and life, which is the basis of human dignity and value. As such, medical practice should be conducted by a medical practitioner who systematically received education on “the theoretical support for human body and life,” and “the external appearance of human body and life,” which is conducted by the State’s verification on this point. Scientificly verified methods or certain side effects by a non-licensed medical practitioner may lead to an inorganic danger that could not be restored to a human being with dignity and value. Therefore, medical practice other than the licensed medical practice is prohibited by a non-medical person. Therefore, it is appropriate to protect the right and health of the people, which is a very important constitutional legal interest, and to perform the State’s duty to protect public health (Article 36(3) of the Constitution). Such restriction on fundamental rights is constitutionally justified in accordance with the principle of proportionality (see Constitutional Court Order 203Hun-Ba86, May 26, 2005). Therefore, the latter part of Article 27(1) of the Medical Service Act or the patient’s right to pursue happiness cannot be deemed to be violated.

(B) In addition, although the Medical Service Act does not actively define the "medical act" in this case or any other provision, in full view of the provisions of Articles 1 and 2(2) of the Medical Service Act, the term "medical act" refers to the act of preventing or treating a disease, which is conducted through the diagnosis, examination, prescription, medication, or surgical treatment based on medical expertise, and other act that is likely to cause harm to public health and sanitation if performed by a medical person (see Supreme Court Decision 2004Do3405, Oct. 28, 2004, etc.). Since it is evident that the act of the course of the course or the oral procedure in this case may pose a risk to physiological or public health and hygiene, it is included in the medical act of an oriental medical doctor (limited medical act). Therefore, the concept "medical act" as provided by Article 27(1) of the Medical Service Act cannot be viewed as an unclear concept, and it does not violate the principle of clarity of the Constitutional Court Decision 2005Hun-Ba636, May 26, 2006.

(C) Therefore, the plaintiff's second assertion is without merit.

(3) On the third argument

As seen earlier, inasmuch as the scope of duties under the Medical Service Act, the assistant nurse, and the medical care provider is clearly distinguishable from the scope of duties under the Rules on the Medical Service Act, and even though the act of setting the excellent, such as the plaintiff's assertion, can be easily displayed in a simple manner, and even if it is desirable to conduct simultaneous operations in a mutually complementary relationship with an invasion, oral and oral procedures should be conducted based on the theoretical basis for human body, salutism, etc. based on the oriental medical research that is based on a oriental medicine theory, such as salutism, as it should be conducted as an oral and oral medical practice. Therefore, it is not permissible for an invasionr to conduct salute other than the act of saluting the qualification. Therefore, the plaintiff's third assertion is without merit.

(4) As to the fourth argument

Whether a punitive administrative disposition deviates from or abused the scope of discretion under the social norms shall be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to the disposition, by objectively examining the content of the act of violation and the public interest to be achieved by the act of violation as the ground for the disposition. In this case, even if the criteria for the punitive administrative disposition are prescribed in the form of Ordinance of the Ministry, it is nothing more than that prescribed in the administrative agency’s internal business rules, and it has no effect to the public and court externally, and whether such disposition is legitimate or not shall be determined in accordance with the contents and purport of the relevant Acts and subordinate statutes as well as the above criteria for disposition. Thus, it cannot be said that the pertinent disposition is legitimate immediately in conformity with the above criteria for disposition. However, unless the above criteria for disposition do not in itself conform with the Constitution or laws, or there are reasonable grounds to believe that the sanction administrative disposition in accordance with the above criteria for disposition is significantly unreasonable in light of the content and purport of the relevant Acts and subordinate statutes (see, e.g., Supreme Court Decision 2007Du6964.

The latter part of Article 27(1) of the Medical Service Act prohibits medical practice other than those licensed by a medical person from performing such medical practice, such as medical practice conducted by a non-medical person. As such, such medical practice by a person may cause fatal harm to humans with dignity and value. In particular, as long as a state verification system is established for medical personnel, the purpose of protecting the State’s verification system and the status of medical personnel is to only be limited to the qualification as upon upon upon upon upon upon upon upon upon upon upon upon upon upon upon upon upon upon upon upon upon upon upon upon upon upon upon upon upon upon upon upon upon upon upon upon upon request, and even if the Plaintiff presented only a demonstration of oral practice to the patients, it cannot be deemed as permissible under the Medical Service Act. Thus, even if the Plaintiff’s aforementioned action cannot be seen as an unlawful act by itself as having been conducted by a medical person, it cannot be viewed as having been conducted under the law that allows upon upon request of the Plaintiff’s oral or ex officio consultation with the Defendant, as long as it does not have any specific reason to permit ex officio consultation with the Plaintiff’s.

D. Sub-committee

Therefore, the instant disposition is lawful.

3. Conclusion

Therefore, the plaintiff's claim is dismissed, and it is so decided as per Disposition.

[Attachment] Relevant Acts and subordinate statutes: (Omission)

Judges Lee Jong-hee (Presiding Judge) et al.