208Guhap27872 Revocation of a disposition to suspend the qualification of doctor

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The Minister of Health and Welfare

October 30, 2008

December 26, 2008

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit are assessed against the Plaintiff.

The Defendant’s revocation of the suspension of qualification on June 23, 2008 to the Plaintiff on June 23, 2008.

1. Details of the disposition;

A. The Plaintiff is a doctor who establishes and operates Aburology (hereinafter “the instant medical institution”) as a medical institution in Ansan-si.

B. The Plaintiff, on the website of the instant medical institution, developed a method that enables the Plaintiff to bring to the place of injection with no side effect, and was found to have been suspected of violating the Medical Service Act, and was subject to a disposition of suspension of indictment by the prosecutor of the Suwon District Prosecutors’ Office on June 9, 2008.

C. On June 23, 2008, the defendant issued a 15-day disposition of the suspension of the doctor's license (hereinafter referred to as "the disposition of this case") by reducing 1/2 pursuant to the mitigated provision of Article 4 of the Regulations on Administrative Measures Concerning Medical Services on the ground that the advertisement of this case constitutes an exaggerated medical advertisement as stipulated in Article 56 (3) of the Medical Service Act, taking into account the circumstances where the plaintiff was subject to the disposition of suspension of qualification for one month as stipulated in Article 4 of the Regulations on Administrative Measures Concerning Medical Services [Attachment] 2-A-2-6 of the Act.

[Grounds for Recognition] Gap evidence Nos. 1 to 3, Eul evidence Nos. 1 to 3, 3-1 and 2

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition shall be revoked on the grounds that it is unlawful for the following reasons.

(1) The instant advertisement is not a medical advertisement as referred to in Article 56(3) of the Medical Service Act.

Article 57 of the Medical Service Act and Article 24 of the Enforcement Decree of the Medical Service Act provide for medical advertisements subject to prior deliberation by the Minister of Health, Welfare and Family Affairs, and deliberation on medical advertisements using Internet homepage

The medical information, such as medical services performed by medical personnel or medical personnel's experience, is the main content of the medical information, and medical information, such as medical knowledge, should be used as an incidental means to support the medical information.

However, in the case of the Internet homepage operated by the Plaintiff, rather than advertising the medical experiences of many and unspecified persons, it provides medical information to patients who have voluntarily accessed with considerable interest in the medical services of the medical personnel while having already acquired the minimum medical information. Moreover, the part of introducing medical institutions such as Plaintiff’s medical history, content, treatment time, location, etc. on the entire website is nothing more than that of the Plaintiff, while most of the advertising including the advertising in this case is medical textbook, thesis, medicine manual, etc. It is clear that the purpose of the Plaintiff’s homepage of the medical institution in this case is to deliver medical information, such as the latest medical knowledge, to the patients rather than attracting patients by advertising the medical affairs or the career of the medical personnel.

Therefore, the instant advertisement does not constitute a medical advertisement regulated by the Medical Service Act.

(2) The instant advertisement is not an exaggerated advertisement.

The advertisement of this case, an injection (haluronic acid) is a substance with the verification of safety that does not cause any physical reaction or any overall side effect even after being used by the human body, and there is no special side effect even when being used in 3,000 for a year and eight months. In addition, the advertisement of this case, which is limited to the extension of ebalone, accounts for a very small portion on the entire website, and the number of times the plaintiff performed the expansion of ebalone is very low to 3 to 4 cases per year.

Therefore, "any expression that has no side effect" is written as it is without any exaggeration, and it does not constitute an exaggerated advertisement.

(3) The instant advertisement is an advertisement that conforms to the commercial practice and the good faith principle.

It is the essential nature of the advertisement that somewhat exaggerations the quality or utility of goods or services more than objective facts. In the event of clinical trials, such as Allulugic acid injection, where there is no side effect, "any expression is an advertisement within the permissible range under commercial practice and there is no side effect on the patient, and such expression alone does not expect that there is no side effect on the part of the patient." In the medical advertisement deliberation committee of the Korean Medical Association there is no side effect on the advertisement.

(4) The instant advertisement does not fall under any of the subparagraphs of Article 56(2) of the Medical Service Act.

Article 56(3) of the Medical Service Act does not clearly stipulate what the meaning of an exaggerated advertisement is, and thus, it is necessary to determine whether the instant advertisement falls under an exaggerated advertisement depending on whether it falls under any subparagraph of Article 56(2) of the Medical Service Act, which specifically lists the prohibited medical advertisements. However, the instant advertisement does not fall under any of the subparagraphs of Article 56(2) of the Medical Service Act, including the guarantee of treatment effect, omission of serious side effects, and occurrence of serious harm to national health, and thus, it is not an exaggerated advertisement.

(5) The instant disposition is a deviation and abuse of discretion.

Considering the overall structure, contents, and purpose of operation of the medical institution website of this case; the degree and degree of the expression "the expression " that has no side effect" in the entire website; the medical safety of the algoluian acid; the period of operation of the website; and the number of times of surgery for the expansion of eths, etc., the disposition of this case is excessively heavy in light of the degree of the offense.

(b) Relevant statutes;

As shown in the attached Form.

(c) Facts of recognition;

(1) The homepage of the instant medical institution is largely divided into hospital introduction, urology, and urology, and urology, and the details of each part are as follows.

A person shall be appointed.

A person shall be appointed.

(2) The instant advertisement is breath of male medicine among the urology and sector of the instant website.

(3) In the advertisement of this case, hymanal acid, as an injection in all life, takes an important role, such as ballium, alllium, maintenance of the form of alllium, and scarcity, and scarcity, with the same structure at all molecule vehicles. It is known that hymanal acid, which has been developed for injecting hymanal acid, is not moved to the organization by combining it with hymanal acid of the skin after injecting it, and there is no hymanal or CO dioxide reaction due to decomposition into water and carbon dioxide in the body through the circular system.

(4) A doctor who is one of the injection drugs developed for the purpose of human injection must provide the patient with information on the side effects likely to arise in connection with the injecting of the injection, and the possible side effects of the climatic reaction, blood species, blood species, color or coloring, color or coloring, climaticly bad or little climatics.

In addition, it is important to consider these side effects, since she has reported her leader, farming cultivation, child-care species, immediate or delayed sudden reaction after being taken allusium, it is important to consider these side effects.

[Grounds for recognition] Gap evidence Nos. 5-1 to 3, 6, and 11-1 of evidence Nos. 1, 2, Eul evidence No. 4, and the purport of the whole pleadings

D. Determination

(1) Determination on the plaintiff's first argument

Medical service advertisements as referred to in the Medical Service Act refer to medical service advertisements that include matters concerning medical service, medical personnel, and medical institutions' widely known or presented matters to consumers through newspapers, magazines, etc. Therefore, regardless of the use of any media, their contents fall under the scope of the above medical service advertisements, which are regulated by the Medical Service Act. Article 57 of the Medical Service Act and Article 24 of the Enforcement Decree of the Medical Service Act provide advertising media only as the subject of deliberation by the Minister of Health, Welfare and Family Affairs, and advertisements among outdoor advertisements as defined in subparagraph 1 of Article 2 of the Outdoor Advertisements, etc. Control Act, and do not include medical service advertisements using other media. In addition, since the Internet homepage is accessible to many and unspecified persons, it is possible to access the instant medical service advertisements, which are provided by medical personnel or medical institutions' associations in the form of medical service advertisements or medical books or medical records, and such advertisements are provided differently from those provided by medical personnel or medical institutions' associations.

According to the above facts, if a consumer who found information on the Internet as an intention to obtain earbal enlargement, leads to the expression that there is no side effect in the advertisement of this case, and thus, it seems sufficient for the medical institution of this case to choose the procedure. Accordingly, the advertisement of this case constitutes a medical advertisement subject to the medical law. The Plaintiff’s assertion on this part is without merit.

(2) Judgment on the plaintiff's second and third allegations

According to the facts acknowledged above, alurgal acid is a very safe drug without resistant origin or reaction even if she injects the component and ingredients of the human body with resistant substance and ingredients. However, since the manual of alurgic acid injection is also reported about rings, farming, child-care species, immediate or delayed sudden reaction, etc., it cannot be said that there is no side effect on the patient before the procedure, if it is stated that the patient should provide information on side effects.

Unlike the expression that there is little side effect or very safe, the expression that there is no side effect is an expression that represents the highest level of trust that makes consumers completely exclude the doubt about the safety of pharmaceutical products or method of treatment. As such, the advertisement of this case not only advertises different contents from facts about the possibility of side effects of algoragic acid, but also its exaggeration is within the permissible scope under commercial practice.

Moreover, medical practice is strictly controlled so that only the medical personnel equipped with important qualifications to deal with the life and body of the patient can be performed, and medical service consumer has no professional medical knowledge and lacks objective judgment ability to rely on the medical personnel for the treatment of disease. In light of the above, general merchants sell medical advertising.

It is difficult to see that the advertisement of this case goes through the deliberation of the Korean Medical Association's Medical Fee Advertisement Deliberation Committee. Furthermore, the advertisement of this case is not legitimate solely on the ground that the advertisement of this case, similar to the advertisement of this case, passes through the deliberation of the Korean Medical Fee Advertisement Deliberation Committee.

Therefore, the plaintiff's assertion on this part is without merit.

(3) Judgment on the plaintiff's fourth argument

In light of the fact that Article 56(2) and (3) of the Medical Service Act separately prescribes the requirements of advertisements prohibited by different provisions as independent, and that Article 56(2) and (3) of the Medical Service Act separates advertisements falling under each subparagraph of Article 56(2) from those falling under each subparagraph of Article 56(3) of the Medical Service Act, and separately prescribes the criteria for administrative dispositions, whether the advertisement of this case constitutes an exaggerated medical advertisement is subject to separate determination under each subparagraph of Article 56(2) of the Medical Service Act, and therefore, this part of the Plaintiff’s assertion is without merit.

(4) Determination on the Plaintiff’s Fifth argument

Although an allusian injection is widely used as a medicine whose safety is verified, the Plaintiff made an exaggerated advertisement with the fact that the Plaintiff does not have any side effect beyond the permissible range due to its nature. It seems to be highly likely to cause confusion in the patient’s choice of medical institution. In the case of an advertisement for medical practice, the public interest needs to strictly regulate the exaggerated contents due to the relationship directly affecting the health of the general public. In light of the circumstances revealed in the argument in the instant case, the Defendant issued a disposition of suspending indictment against the Plaintiff, taking into account the following: (a) the advertisement of this case took into account the entire content of the website and the fact that the advertisement of this case took place on the website after the discovery; and (b) accordingly, the Defendant also reduced the disposition to the maximum extent permissible by the Rules on Administrative Measures Concerning Medical Services to the effect that the Defendant took the instant disposition that the suspension of license is 15 days days of license qualification. The Plaintiff’s assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

For judges of the presiding judge;

Judges Adjusted or Managed

Judges Kang Jeong-hee

Relevant statutes

Medical Service Act

Article 56 (Prohibition of Medical Advertisement, etc.)

(2) No medical corporation, medical institution, or medical person shall run any of the following medical advertisements:

1. Advertisement for new medical technology without undergoing the evaluation under Article 53;

2. Advertisement that carries details feared to mislead consumers by guaranteeing the effect of treatment, etc.;

3. Advertisement with any content comparing the function or method of medical treatment of other medical institution;

4. Advertisement that defames another medical corporation, medical institution, or medical person;

5. Advertisement with any content that directly exposes surgery, such as the scene of an operation;

6. Advertisement that omits important information, such as serious side effects in relation to the functions and treatment methods of medical persons;

7. Advertisement that includes any content not recognized objectively or groundless;

8. Advertisement that expresses in the form of an article or an expert opinion using a newspaper, a broadcasting medium, a magazine, or any other medium;

9. Advertisement with any content not examined in accordance with Article 57 or different from the content examined;

10. Any other medical advertisement with any content that causes, or is likely to cause, a serious hazard to national health, as prescribed by Presidential Decree.

(3) No medical corporation, medical institution, or medical person shall run any medical advertisement with a false or exaggerated content.

(4) No medical advertisement shall be run in any of the following manners:

1. Broadcasting under subparagraph 1 of Article 2 of the Broadcasting Act;

2. Other methods prescribed by Presidential Decree, which need to be restricted in order to maintain order in public health and sound competition in medical services.

(5) Necessary matters concerning medical advertisements including specific standards of medical advertisements prohibited pursuant to paragraph (1) or (2) shall be prescribed by Presidential Decree.

Article 66 (Suspension, etc. of Qualification)

(1) If a medical person falls under any of the following subparagraphs, the Minister for Health, Welfare and Family Affairs may suspend his/her license for a period not exceeding one year. In such cases, matters which need to be judged in connection with medical technology may be determined after hearing the opinions of relevant

7. When he/she runs any medical advertisement, in violation of Article 56 (2) through (4) or 57 (1);

Article 68 (Criteria for Administrative Disposition)

Detailed criteria for administrative dispositions under Articles 63, 64 (1), 65 (1), and 66 (1) shall be prescribed by Ordinance of the Ministry of Health and Welfare for family members of the public health and welfare.

Regulations on Administrative Measures Concerning Medical Treatment

Article 3 (Administrative Agencies)

(1) The Minister for Health, Welfare and Family Affairs shall take administrative dispositions against medical technicians, medical affairs recorders, and opticians.

Article 4 (Criteria for Administrative Disposition)

The criteria for administrative dispositions under Article 68 of the Medical Service Act and Article 25 of the Medical Technicians, etc. Act shall be as specified in the attached Table.

[Attachment Table]

The criteria for administrative disposition (Article 4-Related)

1. Common standards:

(d) If an offense committed by any medical service-related statute falls under any of the following:

Notwithstanding the standards for administrative disposition prescribed by the regulations, the standards for mitigation of the relevant disposition shall be taken into consideration in consideration of such circumstances.

to the extent that such disposition may be mitigated and disposed.

Criteria for mitigation;

Suspension of qualification, revocation of license, etc.

Suspension or cancellation of a record of business; or

Suspension Suspension

1) Criteria for disposition against the prosecutor with respect to the pertinent case (not less than four months but not less than four months)

Where the suspension of indictment is imposed, suspension of qualifications for 1/2 of the suspension of qualifications shall be suspended;

to the extent of mitigation or business

(2) The disposition

2. Individual standards:

(a) The Medical Service Act (hereafter referred to as the "Act" in this Table) and the Enforcement Decree of the Medical Service Act (hereafter referred to as the "Decree" in this Table) by a medical person;

in violation of the Decree (hereinafter referred to as "Decree");

Criteria for administrative disposition based on violations

26) Article 56(3) of the Act (Article 56(2) and Article 66(1) of the Act, suspension of qualifications for one month

in violation of subparagraph 7 of this paragraph (including subparagraph 17).

In the case of advertisements with lengthed content: