[1] The purport of Article 56 (2) 2 of the Medical Service Act prohibiting "advertisement with any content that is likely to mislead consumers by guaranteeing the effect of treatment, etc."

[2] Criteria for determining whether an advertisement constitutes "advertisement with any content that is likely to mislead consumers by guaranteeing the effect of treatment, etc."

[3] In a case where the Minister of Health and Welfare issued a disposition suspending dentist's license on the Internet homepage of his medical institution with the content that "a dentist who advertised to spawn or ging by cutting and cutting an spawn or ging through laser is almost rare," on the ground that the above advertisement constitutes Article 56 (2) 2 of the Medical Service Act, the case holding that the above advertisement does not immediately constitute "advertisement with any content likely to mislead consumers, such as guaranteeing the effect of treatment," and thus, it cannot be viewed as "advertisement with any content likely to mislead consumers"

[1] The purport of Article 56 (2) 2 of the Medical Service Act prohibiting “advertisement with any content likely to mislead consumers, such as guaranteeing the effect of treatment,” separate from prohibiting “false or exaggerated advertisement” is to regulate advertisements by certain methods of expression or expression, regardless of the authenticity of the content of the medical advertisement, in addition to the necessity of the regulation on medical advertisements by demand of the public interest, etc.

[2] In determining whether a certain advertisement constitutes “an advertisement with a content that is likely to mislead consumers by guaranteeing the effect of medical treatment, etc.”, it shall be objectively determined on the basis of the overall and extreme increase of medical service consumers who receive the advertisement in question, by comprehensively taking into account the relationship between the method of expression and the guarantee of treatment effect, etc., whether the method of expression itself is inevitable in providing medical information, the nature of the medium in which the advertisement was made, the process of production and distribution, and the impact of the method of expression on the judgment of medical service consumers.

[3] The case holding that in a case where the Minister of Health and Welfare issued a disposition suspending dentist's license on the Internet homepage of his medical institution such as "a dentist who advertised to cut, cut, and cut fry or ging by using laser," on the ground that the above advertisement constitutes Article 56 (2) 2 of the Medical Service Act, the above advertisement not only seems to provide medical information that the procedure by laser is less adverse than other treatment methods, but also the method of expression is also used to deliver the advantages of the laser treatment by referring to the content of the laser treatment apparatus, in light of the fact that it can be known that the above advertisement is used to deliver the advantages of the laser treatment by the laser treatment apparatus to the medical service consumer, it cannot be viewed as an "advertisement with any content that is likely to mislead consumers by guaranteeing the effect of treatment, etc." immediately.

[1] Article 56 (2) 2 of the Medical Service Act / [2] Article 56 (2) 2 of the Medical Service Act / [3] Article 56 (2) 2 of the Medical Service Act, Article 4 [Attachment] 2 (a) and 23 of the Rules on Administrative Dispositions Concerning Medical Services

Plaintiff (Attorney Hong Young-young et al., Counsel for the plaintiff-appellant)

The Minister of Health and Welfare

Seoul High Court Decision 2009Nu13100 decided October 29, 2009

The part of the judgment below regarding the disposition suspending dentist's license is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeal is dismissed.

The grounds of appeal are examined.

1. Generally, advertising is difficult to exclude commerciality, and medical advertising cannot be an exception. However, medical advertising is highly likely to directly affect the health of the citizens who are consumers of medical services. As such, the public interest needs to regulate advertising aiming at medical practice as well as the need for public interest, and there is no professional medical knowledge, and the need to protect the consumer’s choice in a position to depend on the medical personnel in a situation where it lacks objective judgment ability because it leads to treatment of diseases. The purport of Article 56(2)2 of the Medical Service Act prohibiting the “advertisement with contents likely to mislead consumers, such as guaranteeing medical effect,” separate from prohibiting “false or exaggerated advertising” as well as the necessity of the regulation on medical advertising, and the purport of prohibiting the “advertisement with contents likely to mislead consumers, such as guaranteeing medical care effect” is to be determined by taking into account the need of the regulation on medical advertising as a whole the possibility of infringing on the consumers’ right of choice of medical institutions or methods of medical advertising, regardless of the authenticity of the content of advertising, and the need for the provision of medical advertising methods or methods of medical advertising is unreasonable.

Based on the reasoning of the judgment of the court of first instance, the court below acknowledged the fact that the Plaintiff, a dentist, issued a disposition suspending dentist's license on the ground that the advertisement constitutes "medical service advertisements with any content likely to mislead consumers" as provided by Article 56 (2) 2 of the Medical Service Act, and determined that the advertisement in the advertisement in this case constitutes "medical service advertisements with any content likely to mislead consumers, and thus, it is not likely that the advertisement in this case would cause any confusion or confusion with "the effect of an oral treatment" as well as "the effect of an advertisement with any content that would cause any confusion with an advertisement," and "the effect of an advertisement with any content that would cause any confusion with an advertisement," and it is not likely to cause any confusion with "the effect of an oral treatment" or "the effect of an advertisement with any content that the advertisement in this case would be mitigated."

However, it is difficult to accept such judgment of the court below.

First, according to the reasoning of the judgment below, the advertisement of this case seems to have an aspect of providing medical information that the rash treatment procedure by the rash treatment apparatus has less adverse effects than other treatment methods, and the method of expression is also used in transmitting the advantages of the rash treatment by the rash treatment apparatus to the medical service consumers, referring to the content of the rash treatment apparatus manufacturer. Furthermore, the advertisement of this case is judged to be inevitable to use a somewhat uncertain concept such as rash, little, rare, in the advertisement expressing the degree of the rash treatment which is difficult to convert into rash, such as the advertisement of this case, and it is difficult to view that the expression used in the advertisement of this case "Isn't have any pain and macy" or "medical service that does not have any pain with rash," thereby affecting its judgment. In light of the legal principles as seen earlier, it is difficult to view that the advertisement of this case constitutes the advertisement of this case, apart from the content of the advertisement of this case.

Nevertheless, the lower court, based on the circumstances indicated in its reasoning, determined that the instant advertisement constitutes “advertisement with contents likely to mislead consumers by guaranteeing the effect of treatment, etc..” In so doing, the lower court erred by misapprehending the legal doctrine on Article 56(2)2 of the Medical Service Act, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. Therefore, the allegation in the grounds of appeal assigning this error is with merit.

2. The grounds of appeal specify the grounds of appeal and states specific and explicit reasons as to which part of the judgment of the court below is in violation of the laws and subordinate statutes, and the grounds of appeal submitted by the appellant should be treated as failing to submit the grounds of appeal in the absence of such reasons.

However, the petition of appeal in this case does not state the grounds of appeal, and only the part concerning the disposition suspending dentist's license among the judgment below is stated in the ground of appeal submitted by the plaintiff, and there is no mentioning how the part concerning the warning disposition in the judgment below is in violation of the law. Therefore, the part concerning the warning disposition in the judgment of the court below

3. Therefore, the part of the judgment of the court below concerning the disposition suspending dentist's license is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining grounds of appeal are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)