Standard for determining whether a medical practice by a doctor or herb doctor constitutes “medical practice other than those licensed,” and standard for determining whether a herb doctor’s use of a newly developed and manufactured medical device, etc. other than traditional medical devices or medical technology constitutes “medical practice other than those licensed.”

Inasmuch as there is no provision stipulating or distinguishing the contents of licensed medical practice by a doctor, herb doctor, etc., the determination of whether a specific medical practice by a doctor or herb doctor constitutes “medical practice other than licensed one” ought to be made reasonably in light of social norms by comprehensively taking into account the following factors: (a) the legislative purpose of the relevant medical practice system; (b) the provisions and purport of statutes related to the relevant medical practice; (c) academic principles which form the basis of the relevant medical practice; (d) the background, purpose, and attitudes of the relevant medical practice; and (e) whether the relevant medical school’s curriculum or national examination

Whether the use of medical appliances, etc. newly developed and manufactured by an oriental medical doctor in accordance with the development of medical engineering (hereinafter “medical appliances, etc.”) constitutes “medical practice other than those licensed” by an oriental medical doctor, based on such legal doctrine, should be determined by comprehensively taking into account the following factors: (a) whether the relevant oriental medical doctor’s provision prohibits the use of the relevant medical appliances, etc.; (b) whether the development and production principle of the relevant medical appliances, etc. is based on the academic principle of oriental medicine; (c) whether medical practice using the relevant medical appliances, etc. can be deemed to be for the application or application of the theories or principles of oriental medicine; and (d) whether the relevant medical appliances, etc. need not require expertise and skills in the use of the relevant medical appliances, etc.; and

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. 932, Jan. 18, 2010);

Supreme Court Decision 2011Do16649 Decided January 16, 2014 (Gong2014Sang, 418)

Defendant

Prosecutor

Law Firm Bad Co., Ltd., Attorneys Kim Hong-sub et al.

Seoul Eastern District Court Decision 2010No449 decided July 22, 2010

The non-guilty portion of the judgment of the court below shall be reversed, and that part of the case shall be remanded to the Seoul Eastern District Court Panel Division.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. According to the former Medical Service Act (amended by Act No. 932, Jan. 18, 2010; hereinafter the same), a medical person means a medical doctor, herb doctor, etc. who has obtained a license from the Minister of Health, Welfare and Family Affairs (Article 2(1)); a medical doctor, an oriental medical doctor, and an oriental medical doctor, who intends to become a medical doctor or an oriental medical doctor, shall perform the duties of medical treatment and guidance for health (Article 2(2)1 and 3); and a person who intends to become a medical doctor or an oriental medical doctor, who shall obtain a license from the Minister of Health, Welfare and Family Affairs after passing a national examination with qualifications, such as graduating from a university or graduate school specializing in medical science or oriental medical science (Article 5); and a person, other than a medical person, shall not perform any medical practice, and a person who violates this duty shall be 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 by each of them, with equal qualifications and license, so that oriental medicine can develop independently from Western medicine so that the public can enjoy medical benefits from the development of oriental medicine as well as Western medicine. On the other hand, 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 related to relevant medical treatment from the State, they are to prevent risks that may occur to human life, body, or public health.

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 form the basis of the relevant medical practice; (d) academic principles that serve as the basis of the relevant medical practice; (e) details, purpose and attitudes of the relevant medical practice;

Whether the use of medical appliances, etc. newly developed and manufactured by an oriental medical doctor in accordance with the development of medical engineering (hereinafter “medical appliances, etc.”) constitutes “medical practice other than those licensed” by an oriental medical doctor, based on such legal doctrine, should be determined by comprehensively taking into account the following factors: (a) whether the relevant oriental medical doctor’s provision prohibits the use of the relevant medical appliances, etc.; (b) whether the development and production principle of the relevant medical appliances, etc. is based on the academic principle of oriental medicine; (c) whether medical practice using the relevant medical appliances, etc. can be deemed to be for the application or application of the theories or principles of oriental medicine; and (d) whether the relevant medical appliances, etc. need not require expertise and skills in the use of the relevant medical appliances, etc.; and

2. The lower court acknowledged the fact that a herb doctor Defendant, from June 2006 to September 2009, installed one unit of Iel (IPL, Inc. Ltd., hereinafter “IPL”) for treating skin diseases, such as miscellaneous removal from “○○○○○○ Council” in the operation of the Defendant, and established one unit of Iel, which is a optical operator, for treatment of skin diseases, and used only 100 patients, including the non-indicted.

Furthermore, the lower court appears to have based on the operating principle such as an out-of-the-counter therapy which is permitted to be used by the Korea Medical Institution or an radder therapy in that the pertinent medical treatment act constitutes either a medical practice or a herb doctor’s limited practice. Ultimately, the relevant medical treatment act should be determined on the basis of where the academic principles are located. The evidence submitted by the Prosecutor alone lacks to acknowledge the IPL as not based on the oriental medical theory, and there is no other evidence to acknowledge otherwise. Rather, the IPL uses a medical device that shotly investigates on the part of the human body, which is a medical device that is deemed to have been used by the Korea Medical Institution, and is used to examine the light on the dys of the human body. The Defendant’s use of the IPL in light of the fact that the Plaintiff’s use of the instant medical device was not for the external treatment of the dystro of the disease caused by the collapse of the human body, but for the purpose of treating the dystrophical treatment outside the traditional medical system (hereinafter referred to as “IP”).

3. However, the lower court’s determination is difficult to accept in light of the aforementioned legal principles and the evidence duly admitted by the lower court.

According to the statement of the police interrogation protocol against the defendant, IPL is used for each treatment of the skin color fluor, the fluor name, the extension of fluorites and the removal of scarcitys. According to the evidence No. 7-1 (This paper), IPL has the characteristics of selective luminous damage that destroys a specific organization without impairing the surrounding organization, and is used for the removal of a specific color fluor. Therefore, in doing so, the IPL is the same as the in-board treatment, the radyl treatment, and the operating principle for treating or preventing diseases caused by an scarcity by using the in-board vessel or the radr, or it is difficult to view that the treatment of skin diseases caused by the use of the instant IPL is for the purpose of treating or preventing a successful bid by using light.

Therefore, the court below should first have examined whether the development and production principle of the IPL used by the defendant was based on the academic principles of oriental medicine, and if not, whether the defendant can be deemed to have used the theory or principle of oriental medicine when he uses the IPL based on the background, purpose, attitudes, etc., and further, should have determined whether the medical treatment using the IPL of this case constitutes a medical act other than the licensed herb doctor's license, on the basis of examining whether the use of the IPL of this case is likely to cause harm to public health and sanitation even if a herb doctor uses the IPL because it does not require expertise and skills.

Nevertheless, the lower court rendered a not-guilty verdict on the ground that there is insufficient evidence to prove the above part of the facts charged solely based on the circumstances stated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of licensed medical practice by an oriental medical doctor, thereby failing to exhaust all necessary deliberations

4. Therefore, the non-guilty portion of the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)