(영문) 대법원 2020.11.5.선고 2015도13830 판결

Article 33 (1) of the Medical Service Act provides that "medical persons shall not provide medical services unless they establish a medical institution under this Act, and shall provide medical services within the medical institution, except in any of the following cases:

If the Medical Service Act allows a medical person to provide medical services within a medical institution, it would be by the need for health and medical policy to prevent any harm to medical order and serious harm to public health and hygiene (see, e.g., Supreme Court Decision 2010Du26315, Apr. 14, 201).

In addition, Article 34 (1) of the Medical Service Act provides that "a medical person may, notwithstanding Article 33 (1), 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," and thus, Article 33 (1) of the Medical Service Act provides that "The medical person may give remote medical treatment to a medical person who provides medical knowledge or technology at a remote place." On the other hand, it is limited to the act of a medical

In addition, considering the current medical technology level, in cases where a medical person provides medical services to a patient in a remote area by telephone, etc., it is difficult to expect the same level of medical services as the general medical practice conducted by observing the patient's condition in close to the patient, and due to the lack of information on patients and the restriction on the use of facilities or equipment installed in a medical institution, etc., it is highly likely that improper medical practice will occur, and as a result, it may cause serious danger to public health and sanitation. Such medical practice is contrary to the purpose of Article 33(1) of the Medical Service Act as seen earlier, and it is also a crub that the Medical Service Act

In full view of such circumstances, it is reasonable to deem that a medical person’s medical practice conducted by a patient remotely via telephone, etc. violates Article 33(1) of the Medical Service Act, barring any special circumstance. This also applies to “the case of medical treatment at the request of a patient or his/her guardian” under Article 33(1)2 of the Medical Service Act.

For the reasons indicated in its holding, the lower court found the Defendant guilty of the instant charges on the ground that the Defendant’s treatment of the patient by telephone at the request of the patient does not constitute “the case of treatment at the request of a patient or his/her guardian” under Article 33(1)2 of the Medical Service Act, and that it constitutes a violation of Article 33(1) of the Medical Service Act.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the Medical Service Act, contrary to what is alleged in the grounds of appeal. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of