[1] The purport of the former Medical Service Act that provides a dual medical system that prohibits medical doctors and oriental medical doctors from performing medical acts other than those licensed and licensed

[2] The standard for determining whether specific medical care provided by a doctor or an oriental medical doctor constitutes “medical care outside the scope of license” and the standard for determining whether the use of a newly developed and manufactured medical device, etc. according to scientific and technological development other than traditional medical devices or medical technology constitutes “medical care outside the scope of license” by an oriental medical doctor

[1] Articles 2(1) and 2(2)1, 3, 5, main text of Article 27(1), and Article 87(1) of the former Medical Service Act (amended by Act No. 11252, Feb. 1, 2012; hereinafter the same) provide a dual medical system that prohibits medical practice other than those for which doctors and oriental medical doctors have equal qualifications and licenses, and which enable them to engage in medical practice other than those for which they have obtained licenses, so that oriental medicine can form and develop oriental medicine as well as Western medicine and enjoy medical benefits. Meanwhile, medical doctors and oriental medical doctors may receive systematic education in their respective areas and perform medical practice beyond the scope of verified expertise and skills, thereby preventing risk of human life, body, or general public health.

[2] There is no provision that defines or distinguish the contents of a licensed medical practice by a doctor, an oriental medical doctor, etc., and thus, whether a specific medical practice by a doctor or an oriental medical doctor constitutes “medical practice other than the licensed one” should be determined reasonably in light of social norms by comprehensively taking into account the following factors: (a) the legislative purpose of the dual medical system; (b) the relevant medical practice-related laws and regulations and purport thereof; (c) academic principles, which serve as the basis for the pertinent medical practice; (d) the background, purpose, and attitudes of the relevant medical practice; and (e) whether a medical doctor can secure expertise in the relevant medical practice through curriculum or national examination at a medical college or college. Whether the use of a medical device newly developed and manufactured according to science and technology other than traditional medical devices or medical technology (hereinafter “medical device, etc.”) constitutes “medical practice other than the licensed one” should be determined based on such legal principles; and (e) whether the development and manufacturing principle of medical devices, etc. was not based on the academic principle of the relevant medical practice cannot be readily concluded that an oriental medical doctor used in the relevant medical device, etc.

[1] Articles 2(1) and 2(2)1 and 3, 5, 27(1), and 87(1)2 of the former Medical Service Act (Amended by Act No. 11252, Feb. 1, 2012); / [2] Articles 2(1), 2(2)1 and 3, 5, 27(1), and 87(1)2 of the former Medical Service Act (Amended by Act No. 11252, Feb. 1, 2012)

Defendant

Defendant

Busan District Court Decision 2011No2467 Decided November 25, 2011

The appeal is dismissed.

The grounds of appeal are examined.

According to the former Medical Service Act (amended by Act No. 11252, Feb. 1, 2012; hereinafter the same) (hereinafter the same), medical personnel refer to a medical doctor, herb doctor, etc. licensed by the Minister of Health and Welfare (Article 2(1)); medical doctors refer to the duties of medical treatment and health guidance; and oriental medical doctors refer to the duties of oriental medical treatment and health guidance (Article 2(2)1 and 3); and oriental medical doctors refer to the duties of oriental medical treatment and health guidance (Article 2(2)1 and 87(1)); and medical doctors or oriental medical doctors shall obtain a license from the Minister of Health and Welfare after passing a national examination with the qualifications to graduate from a university, college, or specialized graduate school specializing in medical science or oriental medical science (Article 5); and no person, other than medical personnel, is prohibited from performing medical practice, and a person who violates this duties is subject to criminal punishment (Article 87(1)).

As such, the former Medical Service Act provides a dual medical system that prohibits medical doctors and oriental medical doctors from performing medical acts other than those licensed and licensed, with the same level of qualification and that allows the citizens to enjoy medical benefits by forming and developing oriental medicine as well as Western medicine. Meanwhile, the purpose is to prevent risks that may occur to human life, body, or general public health in cases where doctors and oriental medical doctors receive systematic education in their respective areas and perform medical acts beyond the verified scope of expertise and skills in the relevant medical treatment from the State.

However, there is no provision stipulating the contents of the licensed medical practice by a doctor, an oriental medical doctor, etc. or providing the criteria for classification thereof. Thus, whether a specific medical practice by a doctor or an oriental medical doctor constitutes “medical practice other than the licensed one” should be determined reasonably in light of social norms, by comprehensively taking into account the following factors: (a) legislative purpose of the relevant medical practice system; (b) legislative provisions and purport of the relevant medical practice; (c) academic principles which serve as the basis for the relevant medical practice; (d) academic principles that serve as the basis for the relevant medical practice; (e) details and purpose of the relevant medical practice; (e

Whether using a newly developed and manufactured medical device, etc. according to the development of science and technology other than the traditional medical device or medical technology (hereinafter “medical device, etc.”) by an oriental medical doctor constitutes “medical act other than those licensed” should be determined based on such legal doctrine. It is not readily concluded that an oriental medical doctor’s use of the relevant medical device, etc. for medical treatment was conducted other than those licensed solely on the circumstance that the development and manufacturing principle of medical device, etc. was not based on the academic principle of oriental medicine.

The court below acknowledged the facts as indicated in its reasoning based on its adopted evidence, and found the following facts: (a) not only for the purpose of promoting or improving the functions of various institutions of human body connected to the cryrosis by stimulating the cryrosis, but also for improving the overall face of the body that directly injected cryr acid on the part of the body, by raising the skin part of the body that directly injected cryr acid on the part of the body; (b) herb is recovered from animals, plants, or minerals, and is primarily dried, cut, or refined in its original form; and (c) it cannot be deemed as herb because cryr acid injected into the cryrusususususic acid into an cryralian process using high-tech equipment and it can not be deemed that the cryralusic surgery in this case is entirely conducted in accordance with the cryral medicine principle, and it constitutes a medical act other than the licensed herb doctor’s license.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and the evidence duly admitted by the court of first instance, the judgment below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles as to the scope of licensed medical practice by herb doctor and thereby affecting the conclusion of the

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

Justices Kim So-young (Presiding Justice)