Whether Article 5 subparag. 3 of the former Medical Service Act, which provides for qualifications for applying for a national examination for dentists to a person who majored in dental science in a foreign country, requires the State who graduated from a university specializing in dental science and the State who acquired the license to each other (affirmative)

Article 5 subparag. 3 of the former Medical Service Act (amended by Act No. 6686 of Mar. 30, 2002) provides that "a person who has graduated from a school falling under any of the subparagraphs 1 and 2 of a foreign country recognized by the Minister of Health and Welfare and has obtained a license for a foreign dentist" as a qualification for the national examination for a dentist with respect to a person who majored in dental medicine in a foreign country. In light of the legislative purpose of the former Medical Service Act to protect and improve the health of the people based on the appropriateness of medical care, the above provision requires that the country who has graduated from a university specializing in dental medicine and the country who has obtained a license

Article 5 subparagraph 3 of the former Medical Service Act (amended by Act No. 6686 of March 30, 2002)

Plaintiff (Law Firm Jeong, Attorneys Park Jong-chul et al., Counsel for the plaintiff-appellant)

Korea

Seoul High Court Decision 2005Nu1246 delivered on November 10, 2005

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

Article 5 subparag. 3 of the former Medical Service Act (amended by Act No. 6686, Mar. 30, 2002; hereinafter the same) provides that "a person who has graduated from a school falling under any of the subparagraphs 1 and 2 of a foreign country recognized by the Minister of Health and Welfare and has obtained a license for a foreign dentist" as a qualification for the national examination of dental doctors for a person who majored in dental medicine in a foreign country. In light of the legislative purpose of the former Medical Service Act to protect and promote the health of the people, the above provision requires that the country who has graduated from a university specializing in dental medicine and the country who has acquired the license should be the same.

This is because, if the country of study and the country of obtaining a license do not need to be the same country, if a person who majored in dental medicine in a foreign university recognized by the Minister of Health and Welfare fails to pass a test to grant a dentist's license in that country, and fails to obtain a dentist's license, the country can easily obtain a dentist's license through a bypassing method for obtaining a dentist's license in another country. Thus, the legislative purpose of the above provision might not be achieved.

In addition, since the curriculum to train medical personnel and the process to grant a license to a person who completed the curriculum has close relationship with each other, it is difficult to strictly maintain the national examination process conducted after completing education at a dental college in cases where admission to a dental college is extremely difficult and its curriculum is strictly operated. In light of the above provision, even though the above procedure is not immediately granted a dentist's license, it cannot be a ground for relaxing the qualification requirements for national examination conducted by a person who majored in dental medicine in a foreign country as required by the above provision, even if it is not immediately granted a dentist's license.

In the same purport, the court below is just in holding that although the Plaintiff’s graduation university is a school recognized by the Minister of Health and Welfare, the Plaintiff is not a dentist’s license in the Philippines, but a dentist’s license in the South Africa, which is another country. Thus, the Plaintiff cannot be deemed to have satisfied the qualification requirements for a dentist’s national examination under Article 5 subparag. 3 of the former Medical Service Act, and contrary to the allegations in the grounds of appeal, the Plaintiff did not err by violating the legal principles of restriction on fundamental rights or by violating the principle of trust protection.

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

Justices Lee Kang-tae (Presiding Justice)