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헌재 2007. 4. 26. 선고 2003헌바71 판례집 [보건범죄단속에관한특별조치법 제5조 등 위헌소원 (의료법 제25조 제1항)]
[판례집19권 1집 390~399] [전원재판부]
Main Issues

1. Whether Article 5 of the Act on Special Measures for the Control of Public Health Crimes and the former part of the main sentence of Article 25(1) of the Medical Service Act (hereinafter “instant legal provisions”) that a person, other than a medical person, who conducts medical practice as a business for profit, violates the principle of clarity in the principle of no punishment without the law (negative)

2. Whether the Constitutional Court can determine on a request for adjudication that “if a person interpreted that a person’s act of prescription constitutes a medical practice, it shall be in violation of the Constitution” (negative)

Summary of Decision

1. In full view of the legislative purpose of the Medical Service Act, various provisions of the Medical Service Act concerning the mission of medical personnel, and the Supreme Court precedents regarding the concept of medical practice, “medical act” in the legal provisions of this case refers not only to an act closely related to human life, body, or general public health, but also to all acts likely to cause harm to public health and hygiene unless there is a medical person with medical function and knowledge, and it is difficult to understand it as a matter of course by a person with a sound general sense or to interpret it at the stage of application by a judge, and therefore, it cannot be deemed as a violation of the principle of clarity of the principle of no punishment without law.

2. In light of the multi-level meaning of “medical practice” and the comprehensive concept of “medical practice”, whether a person constitutes “medical practice” under the legal provisions of this case is a matter of fact-finding and interpretation and application of the law that is based on the fact-finding of “act of medical practice” in individual cases, and the determination of whether the act constitutes “medical practice” under the legal provisions of this case is the inherent authority of the court. As such, the act of medical practice constitutes “medical practice.”

The claimant's assertion that "if interpreted by the Constitution, it is in violation of the Constitution is not a problem of the Constitutional Court.

Documents subject to adjudication;

A person who, in violation of Article 5 of the Act on Special Measures for the Control of Public Health Crimes, has engaged in medical practice, dental practice by a person who is not a doctor, dental practice by a person who is not a dentist, or oriental medicine practice by a person who is not a oriental medical doctor, shall be punished by imprisonment for life or for not less than two years. In this case, a fine of not less than one million won but not more than 10 million won shall be imposed concurrently

Article 25 (Prohibition of Unlicensed Medical Practice, etc.) (1) No person, other than a medical person, shall perform any medical practice, and no medical person shall perform any medical practice other than that licensed. The proviso to this Article shall

1. through 3. Omitted.

(2) through No. 3 omitted

[Reference Provisions]

Articles 12(1) and 13(1) of the Constitution

The purpose of this Act is to contribute to the improvement of national health by aggravated punishment, etc. for crimes such as illegal foods and additives, illegal medicines and cosmetics, manufacturing illegal poisonous substances or unlicensed medical practices, etc.

The purpose of this Act is to ensure the proper management of medical treatment and to protect and promote national health by prescribing matters necessary for national medical treatment.

Article 2 (Medical Personnel) (1) of the Medical Service Act

(2) The mission of medical persons is to promote the improvement of national health and to contribute to the securing of healthy lives of the people by performing the following duties according to the classification of medical persons:

1. Duties of a doctor shall be to engage in medical treatment and health guidance;

2. Duties of a dentist shall be to engage in dental treatment and guidance for oral health;

3. Duties of a herb doctor shall be to engage in herb medical treatment and herbal health guidance;

4. Duties of a midwife shall be to engage in assistance in child delivery and in guidance of health and nursing for pregnant women, women in childbirth, women in child delivery, and newborn babies.

5. Duties of a nurse shall be to provide nursing services for, or assistance in medical treatment in, sick persons or dissolved women, and to engage in health activities as prescribed by the Presidential Decree;

Article 12 (Protection of Medical Technology, etc.) (1) Except as otherwise expressly provided for in this Act or other Acts and subordinate statutes, no person shall interfere with the implementation of medical technologies, such as medical treatment, midwifery, nursing, etc. (hereinafter referred to as "medical practice").

(2) No person shall destroy or damage any medical facilities, equipment, medicine, or other equipment of a medical institution, or occupy a medical institution to interfere with the medical treatment of such institution, or aid or abets such act.

Reference Cases

1. Constitutional Court Decision 93Hun-Ba65 dated December 26, 1996 and Supreme Court Decision 8-2, 785

Constitutional Court Decision 13-2, 804, 813 decided December 20, 201

Constitutional Court Decision 2002HunBa23 March 27, 2003, Supreme Court Decision 15-1, 218

Constitutional Court Decision 2003HunBa86 dated May 26, 2005, Supreme Court Decision 17-1, 650, 659

[Plaintiff-Appellant] Plaintiff 1 et al. (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

2. Supreme Court Decision 91Do3219 delivered on May 22, 1992 (Gong1992, 2057)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Supreme Court Decision 2004Do673 Delivered on April 27, 2004

Parties

Cheong-gu Kim-OO

Attorney Han-soo

Cho-hee et al., Counsel for defendant-appellant

In violation of the Act on Special Measures for the Control of Public Health Crimes in relation to the case District Court 2003 Man-Ma3827

Text

Article 5 of the Act on Special Measures for the Control of Public Health Crimes and the former part of the main sentence of Article 25 (1) of the Medical Service Act shall not violate the Constitution.

Reasons

1. Case summary and the object of the trial;

A. Case summary

(1) The claimant, without a doctor, carried on a door-to-door operation in which colors are absorbed into the skin by providing the upper part after the upper part of the body 1-1.5mm in depth of the body 1-1.5mm and the upper part of the body.

(2) The claimant was indicted on the ground that the above literacy procedure constitutes “non-licensed medical practice” as stipulated in Article 5 of the Act on Special Measures for the Control of Public Health Crimes (U.S. District Court 2003Da3827). Article 5 of the Act on Special Measures for the Control of Public Health Crimes applied to the facts charged.

Although Article 25 (1) of the Medical Service Act and Article 25 (1) of the Medical Service Act applied for an adjudication of constitutionality (U.S. District Court 2003 early 1136) on the ground that the claimant's fundamental rights are infringed, the court dismissed the petition, and on September 3, 2003, filed an adjudication on constitutional complaint

(b) Object of adjudication;

The claimant filed an adjudication on constitutional complaint with respect to Article 5 of the Act on Special Measures for the Control of Public Health Crimes and Article 25(1) of the Medical Service Act. However, since it is apparent that the remainder except the former part of the main sentence of Article 25(1) of the Medical Service Act (hereinafter “no person, other than a medical person, shall perform medical practice”) is not the premise of the adjudication because it is not relevant to the trial of the relevant case, it is reasonable to determine that the subject of the adjudication is the subject of Article 5 of the Act on Special Measures for the Control of Public Health Crimes and the former part of Article 25(1) of the Medical Service Act

The contents of the legal provisions subject to the instant adjudication are as follows.

A person who, in violation of Article 5 of the Act on Special Measures for the Control of Public Health Crimes (Punishment of Illegal Medical Business Operators), has engaged in medical practice for the purpose of profit-making, dental practice by a person who is not a dentist, dental practice by a person who is not a herb doctor, or herb doctor, in violation of Article 25 of the Medical Service Act shall be punished by imprisonment for life or for not less than two years. In this case, a fine of not less

(1) Any person other than a medical person shall be prohibited from performing any medical practice, and any medical person shall be prohibited from performing any medical practice other than those licensed: Provided, That any person falling under any of the following subparagraphs shall be prohibited from performing any medical practice within the scope as determined by the Ordinance of the Ministry of Health and Welfare:

1. A person who has a foreign medical license and stays in the Republic of Korea for a fixed period;

2. A person who carries out a medical service at a medical college, dental college, college of oriental medicine, general hospital, or foreign medical aid institution, or a medical service for a research and demonstration project; and

3.A student of a school majoring in medical science, dental science, oriental medicine science or nursing science;

(2) 3 omitted.

2. Claims of the claimant, reasons for dismissing the request for adjudication on unconstitutionality, and opinions of the related agencies;

A. The claimant's assertion

(1) Of the legal provisions of the instant case, the concept of “medical act” is unclear, and it is unclear whether the act of correspondence is included therein, thereby violating the principle of clarity, which is the derived principle of the principle of no punishment without law.

(2) If it is interpreted that the above “medical act” includes the act of medical practice, the instant case

Due to the legal provisions, any person other than a doctor is legally unable to perform literary treatment, which is an infringement on fundamental constitutional rights such as the freedom of occupation, the freedom of arts, the freedom of press and publication, and the right to equality guaranteed by the claimant, and it infringes on the right to pursue happiness and the freedom of expression of the people who intend to receive correspondence.

B. Grounds for dismissing a request for adjudication on unconstitutionality of the Suwon District Court

(1) Since it is impossible or considerably difficult to use terms with universal or general intent for the purpose of legislation to subdivide the elements of punishment laws into a daily basis and require all the requirements for clarity, it is inevitable to use terms with a certain degree of universal or general intent. The question is whether the relevant laws meet the requirements for clarity depending on whether reasonable interpretation is possible in consideration of the relationship with the purpose of enactment and other provisions of law.

Meanwhile, in light of the legislative purpose of the Medical Service Act and various provisions of the Medical Service Act concerning the mission of a medical person, the court interpreted that the “medical act” stipulated under the provisions of the instant legal provisions as the experience and function based on medical expertise in the medical examination, autopsy, prescription, medication, or surgical treatment, and other acts that may cause harm to public health and sanitation if performed by a medical person. As such, it cannot be deemed that the concept of “medical act” is unclear. Therefore, the instant legal provision cannot be deemed as being in violation of the principle of clarity of the penal law, which is the derived principle of the criminal law.

(2) The court may make a request for adjudication of unconstitutionality under Article 41(1) of the Constitutional Court Act in a case where the law is contrary to the Constitution, and the court has the responsibility to interpret the law in a manner that does not violate the Constitution. The issue of whether the petitioner’s act of performing a literacy procedure constitutes “medical act” in the pertinent case is a matter to be decided by the court as a matter of interpretation and application of the legal provisions of the instant case. Thus, the petitioner’s assertion related thereto does not constitute a matter that can be decided by the court.

(c) Opinions of the Minister of Health and Welfare;

The concept of medical practice has already been determined in the Supreme Court's case and the Constitutional Court's decision, and it is clear in accordance with the opinion of the relevant professional organization, the legislative purpose of the Medical Service Act, and the purport of the provisions of the Medical Service Act concerning the mission of medical personnel. Therefore, the concept of medical practice is not against the principle of no punishment without the law, but is excessively infringed on the basic right claimed by the claimant considering the risk of the act

It does not mean that it would not be detrimental.

3. Determination

A. Violation of the principle of clarity

The claimant can interpret the concept of "medical act" as stipulated in the legal provisions of this case to include the act of literacy which is not recognized as a medical act by social norms because of its unclear meaning, and also includes the act of literacy which is not recognized as a medical act by social norms. This is therefore argued to be in violation of the principle of no punishment without law because the elements of

(1) The principle of clarity derived from the principle of no punishment without the law, which is declared in Articles 12(1) and 13(1) of the Constitution of the Republic of Korea, is the principle that anyone can anticipate what the act he/she intends to punish is and what punishment is, and accordingly, the constituent elements and punishment of a crime must be clearly defined.

Here, it does not mean that the elements of a law should be defined as a lucent concept which completely excludes value judgment at the stage of applying the law, but the legislative intent of the legislators refers to the degree that the legislative intent can be understood as one-time by a person with a sound general sense. Therefore, even if a provision was made by using a concept that requires complementary interpretation of judges within a somewhat broad and certain scope, it is difficult to view that the requirement of clarity required by the Constitution is not in place merely because there is no possibility of multi-dimensional interpretation at the stage of applying the provision (see, e.g., Constitutional Court Decision 13-2, 804, 813; Constitutional Court Decision 13-2, 804, 813; Constitutional Court Decision 2005HunBa6, May 26, 2005; Supreme Court Decision 17-1, 630, 639).

(2) Article 1 of the Medical Service Act provides that “The purpose of this Act is to ensure the proper operation of medical services and to protect and promote national health by providing for necessary matters concerning national medical fees,” and Article 2(2) of the same Act provides that “medical personnel shall contribute to the improvement of national health and the securing of healthy life for the people by performing the following duties according to their classification,” and subparagraph 1 of the same Article provides that “A dentist shall be engaged in medical care and health guidance,” and subparagraph 2 of the same Article provides that “A dentist shall be engaged in dental care and health guidance,” and subparagraph 3 of the same Article provides that “A dentist shall be engaged in oriental medical care and health guidance.” In addition, Article 12 of the same Act provides that “The implementation of medical care, such as medical care, assistance in child care, etc., performed by a medical person” shall be defined as “the implementation of medical care, etc.”

Article 1 of the Act on Special Measures for the Control of Public Health Crimes provides that "The purpose of this Act is to contribute to the improvement of public health by aggravated punishment, etc. for crimes such as manufacturing illegal foods and additives, illegal drugs and cosmetics, poisonous substances or unlicensed medical practices."

Examining the contents and legislative intent of the Medical Service Act and the Act on Special Measures for the Control of Public Health Crimes, the purpose of punishing unlicensed medical practice is to prescribe strict requirements for qualifications to be a doctor, as medical practice requires highly professional knowledge and experience, and at the same time there are close and serious relationships with human life, body, or general public health. Meanwhile, Article 25 of the Medical Service Act allows medical doctors only to engage in medical practice and prevents the general public from doing so, thereby preventing risks to human life, body, or general public health that may occur by providing medical practice. Therefore, in light of the above legislative intent, medical practice is not limited to the acts concerning the treatment and prevention of diseases, and it includes all acts that may cause harm to public health and sanitation unless a medical person with medical function and knowledge is involved.

The term "medical practice" under Article 25 (1) of the Medical Service Act is interpreted as an act that is likely to cause harm to public health and sanitation unless medical personnel provide medical services, in addition to the act of preventing or treating a disease caused by diagnosis, diagnosis, prescription, medication, or surgical treatment based on the experience and function based on medical expertise (see, e.g., Supreme Court Decision 9Do4542, Feb. 25, 200; Supreme Court Decision 98Do4716, Jun. 25, 199).

(3) Meanwhile, in the Supreme Court Decision 2003HunBa86 Decided May 26, 2005, the Court decided that the part of the "medical act" in the former part of Article 25 (1) of the former Medical Service Act (amended by Act No. 6686 of March 30, 2002) does not violate the principle of clarity in the principle of no crime without the law. The Court decided on December 26, 1996 and the Constitutional Court Decision 93HunBa65 of December 26, 1996 and the Constitutional Court Decision 2002HunBa23 of March 27, 2003 that Article 5 of the "Act on Special Measures for the Control of Public Health Crimes" stipulated in the "Act on Special Measures for the Control of Public Health Crimes" cannot be viewed as an unclear concept, and thus it does not violate the principle of clarity.

(4) In full view of the legislative purpose of the Medical Service Act, various provisions of the Medical Service Act on the mission of medical personnel, and Supreme Court precedents on the concept of medical practice, among the legal provisions of this case, the concept of medical practice among the legal provisions of this case can be seen as being a person with a sound general sense.

Since it is difficult to understand as such or there is a risk of multi-level interpretation in the application stage by judges, it is not in violation of the principle of clarity in the principle of no punishment without law.

B. The part disputing the interpretation of the law

(1) The claimant asserts that if the legal provision of this case is completely constitutional, it constitutes “medical act” in the interpretation of the above legal provision, if it infringes on the fundamental rights of the Constitution, such as the freedom of occupation guaranteed by the claimant, the freedom of arts, the freedom of press and publication, the right to equality, etc., and infringes on the right to pursue happiness and the freedom of expression of the people who intend to undergo correspondence. Therefore, we examine whether the Constitutional Court can decide on the request for adjudication of “unconstitutionality” if it is interpreted that the act of correspondence is included in medical act.

(2) ‘문신’(文身)의 사전적 의미는, 살갗을 바늘로 찔러 먹물이나 다른 물감으로 글씨·그림·무늬 따위를 새기는 일 또는 그렇게 새긴 몸을 말한다. 그러나 실제에 있어서 문신의 방법과 형태가 매우 다양한바, 색소를 사용하지 않고 피부에 흠집을 내어 옴폭 파이거나 볼록 솟아오르게 한 흔적으로 무늬를 새기는 반흔문신(瘢痕文身)과 나뭇조각이나 침 등을 사용하여 피부에 상처를 내고 염료를 문질러 배게하는 문신이 있고, 후자에도 침에 색소를 발라서 찌르는 방식, 물감 묻힌 실을 바늘에 꿰거나 물감을 칠한 바늘로 직접 피부를 꿰어 무늬를 그리는 방식, 바늘을 기계에 의하여 작동시키는 문신기계를 이용하는 방식 등이 있다. 나아가 진피에 물감을 새겨 반영구적으로 지워지지 않게 하는 고유한 의미의 문신이 있는가 하면, 피부를 뚫지 않은 채 헤나의 잎사귀로 피부의 겉을 물들이는 것도 ‘헤나문신’이라고 불린다. 실제 사안에서도, 이 사건의 당해 사건에서와 같이 사람의 신체 피부의 표피를 지나 진피에까지 상처를 낸 다음 색소를 주입하여 흡수되게 한 사안(대법원 2004. 4. 27. 선고 2004도673 판결)이 있는가 하면, 고객들의 눈썹 또는 속눈썹 부위의 피부에 자동문신용 기계로 색소를 주입하는 방법으로 눈썹 또는 속눈썹 모양의 문신을 하였을 때 표피에만 색소를 주입한 것인지 아니면 진피를 건드리거나 진피에 색소를 주입한 것인지 여부가 문제된 사안[대법원 1992. 5. 22. 선고 91도3219 판결(공1992, 2057)]도 있다.

(3)On the other hand, as seen earlier, the term "medical practice" is closely related to human life, body, or general public health, and is not related to the treatment and prevention of diseases, but to health unless medical personnel with medical function and knowledge do not engage in medical practice.

It is an act that is likely to cause harm to health and sanitation. The Supreme Court is interpreted as an act in addition to the act of preventing or treating a disease conducted by a medical person through diagnosis, autopsy, prescription, medication, or surgical treatment with experience and function based on medical expertise, as well as the act of preventing or treating a disease conducted by a medical person. As seen earlier.

(4) In light of the multi-level meaning of “malary act” and the comprehensive concept of “medical act”, the issue of whether a certain act constitutes a medical act under the legal provision of this case is to be determined by the court in a specific case. The issue is whether, after determining factual basis, the act of a person administering a mal procedure is likely to cause harm to the life, body, or health and hygiene of the person under question unless the person with medical function and knowledge is not a medical person. The Supreme Court does not punish the act of a malary procedure itself as unlawful, but rather, considers it as a medical act in a case where it is likely that the act of a malary procedure might cause harm to health and sanitation (see, e.g., Supreme Court Decision 91Do3219, May 22, 192; Supreme Court Decision 2004Do673, Apr. 27, 2004; Supreme Court Decision 208Do3205, Apr. 27, 2004). 204.

(5) Ultimately, the issue of whether the act of a literacy procedure constitutes “medical act” under the legal provision of this case is a matter of fact-finding and interpretation and application of the law based on the fact-finding in an individual case. As such, the original court’s inherent authority to determine the issue. Thus, if the act of a literacy procedure is interpreted as falling under “medical act”, the claimant’s assertion that the act of a literacy procedure violates the Constitution is not a problem to be determined by the Constitutional Court.

4. Conclusion

Therefore, the legal provisions of this case are not in violation of the Constitution, and they are decided as per Disposition by the assent of all Justices.

Judges

Judges Lee Han-tae (Presiding Judge) (Presiding Judge) ( unable to sign and affix a seal on overseas business trip)

Cho Jong-dae Kim-hee Kim Jong-ok's Baak-gu's moving of a civilian flag (Presiding Justice)