(영문) 서울행정법원 2009.6.5.선고 2009구합669 판결

A. The Plaintiff is a dentist who opened and operated ○○○○ dental clinic (hereinafter “instant medical institution”) in Dongdaemun-gu Seoul Metropolitan Government with a dentist’s license (No. ○○○○○○○○○) from the Defendant.

B. In relation to the instant medical institution’s Internet homepage (www. OO.com), the Plaintiff: (a) used the expression “the highest medical staff,” such as “the highest treatment service with the thickness of patients” (hereinafter “the instant advertisement”); (b) was placed under suspicion of violation of the Medical Service Act, and was subject to suspension of indictment.

C. On November 27, 2008, the defendant issued a disposition for suspension of dental license for 15 days (hereinafter referred to as the "disposition in this case") by reducing 1/2 of the former Rules on the Administrative Dispositions related to Medical Fees (amended by Ordinance of the Ministry of Health, Welfare and Family Affairs No. 110, May 15, 2009; hereinafter referred to as the "Rules on Administrative Dispositions related to Medical Services") on the ground that the advertisement in this case against the plaintiff constitutes a medical advertisement with a content that is likely to mislead consumers, under Article 56 (2) 2 of the Medical Service Act, on the ground that the advertisement in this case constitutes a medical advertisement with a content that is likely to mislead consumers.

【Uncontentious facts, Gap’s evidence 1-1, 2, Eul’s evidence 1-1, Eul’s evidence 2-2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The instant advertisement was posted on the Internet homepage of the instant medical institution operated by the Plaintiff, and it is difficult to view it as an advertisement under the Medical Service Act, since it entirely depends on the intent of the visitor. Furthermore, the Defendant’s disposal of the instant advertisement by citing the content of the said website is unlawful as it infringes on the Plaintiff’s freedom of expression guaranteed by the Constitution.

(2) The expressions expressed in the instant advertisement are generally permitted in commercial advertisements, and other hospitals use similar expressions without any specific regulation, and there are positive aspects that provide patients with useful information when viewed from the perspective of protecting the health rights of the people of the nation. Thus, the instant advertisements do not constitute advertisements that are likely to mislead consumers.

(3) In light of the fact that the Plaintiff’s license as a dentist is suspended due to the instant disposition, the instant disposition is unlawful as it violates the principle of excessive prohibition or the principle of proportionality, or deviates from and abused discretion.

(b) Related statutes;

It is as shown in the attached Table related Acts and subordinate statutes.

(1) From the homepage of the instant medical institution, the phrase “the highest medical personnel”, “the highest medical personnel” and “the highest treatment equipment, such as racers, and the highest level of medical technology, to fully present the method of accurate diagnosis and treatment, appropriate for the patient, appropriate treatment, etc., and to minimize side effects or reverse reactions,” “minimum treatment cost,” “the cost of treatment, to be borne,” and “the most significant number of clinical treatment experience in the whole country, and direct trade, etc. with manufacturers.”

(2) The criteria for the examination of medical advertisements by the Dental Association of Korea and the Medical Advertisement Deliberation Committee are “an advertisement with any content likely to mislead consumers” to mean the highest level of words “the objective basis is recognized.”

Unless otherwise permitted by the Review Committee, the term “assumptively 0% and 100%” is defined as “in the event of using the word “free of side effects,” “assumptive treatment,” “assumptive treatment,” “the most safe,” etc. without permission by the Review Committee.”

【Uncontentious facts, Gap’s evidence Nos. 3 and 8, Eul’s evidence No. 1-2, and the purport of the body before oral pleadings

D. Determination

(1) As to the plaintiff's first argument

Medical advertisements mean that medical personnel, medical institutions, and medical corporations are widely informed or present to consumers by using media, such as newspapers and magazines, matters concerning medical services (all scientific and technical activities applied to maintain health and to prevent, mitigate, or treat diseases), medical personnel, medical institutions (career, facilities, technology, etc.) and matters concerning medical institutions (career, facilities, technology, etc.).

If the content falls under the above category of medical advertisement, it constitutes a luminous height subject to regulation under the Medical Service Act. Article 57 of the Medical Service Act and Article 24 of the former Enforcement Decree of the Medical Service Act (amended by Presidential Decree No. 21148, Dec. 3, 2008; hereinafter referred to as the "Enforcement Decree of the Medical Service Act") provides the advertising media subject to deliberation by the Minister of Health, Welfare and Family Affairs among the outdoor advertisements under Article 2 subparagraph 1 of Article 2 of the Act on the Freedom of Newspapers, Etc. and Guarantee of Their Functions, such provision is merely limited to the subject of deliberation, and it cannot be interpreted as a medical advertisement by stating that it does not fall under any other media.

In addition, Internet homepage is one of the users of the Internet, and it is clear that the advertisement in this case is against many and unspecified persons, and it is provided in the form of a publication of medical knowledge or medical information on books, thesis, or medical related academic conferences, unlike the case where it is provided in the form of a publication on a specific medical institution's website or a medical device used at the specific medical institution's homepage, which is associated with introduction of the medical institution or medical device used at the specific medical institution's homepage, it becomes an advertisement that induces consumer's choice as it becomes a matter of medical service provided by the medical institution in question from the viewpoint of medical consumer.

Therefore, it seems sufficient for consumers to report the instant advertisement and select the medical institution of this case on the Internet. Thus, the instant advertisement constitutes a medical advertisement subject to regulation under the Medical Service Act, and it cannot be deemed that the instant disposition itself infringed on the Plaintiff’s freedom of expression. Thus, the Plaintiff’s assertion on this part has no merit.

(2) On the second argument of the plaintiff

In general, advertising is difficult to exclude commerciality, and medical advertising is also difficult to be an exception. However, medical advertising is highly likely to directly affect the health of the people who are medical consumers. As such, public interest needs to regulate advertising aiming at medical practice, and there is no professional medical knowledge, and it is highly necessary to protect medical institution consumers' choice of medical care consumers who are in the position to depend on medical personnel under the situation of falling short of objective judgment ability. Article 56 of the Medical Service Act and Article 23 of the Enforcement Decree of the Medical Service Act stipulate that the medical care system is effective for disease treatment or is superior to other medical institutions or medical professionals, and medical advertising is prohibited from advertising putting important matters such as any side effect which might cause serious harm to the safety of patients, and thus, it is highly likely that the content of medical advertising would be cruel to the extent of the content of the medical advertising, even if the content of the medical advertising is subject to more than the content of the medical advertising, and it is also likely that the content of the medical advertising would be cruel to the extent of the content of the medical advertising.

Therefore, in medical advertisements that include the notification of the treatment effect or the excellence of treatment method by the medical institution, etc., if the medical consumer's judgment that is linked to the advertisement is reached by using an ambiguous and doubtful phrase that is the intention of inducing the patient, etc. even though it is possible to use a tag that is accurate and doubtful based on objective facts, it shall be deemed as medical advertisements with any content that is likely to mislead consumers.

On the premise of the above legal doctrine, the instant case is based on the premise of the foregoing legal doctrine: “Dental treatment specialized mainly for the first time of senior citizens” used in the instant advertisement; “The highest medical professionals,” “the highest medical professionals,” “the highest treatment equipment, and highest-class medical treatment equipment,” “satisfying the method of accurate diagnosis and treatment, proper treatment, etc. for the patient, and the method of procedure appropriate for the patient,” “minimum side effects or reverse reaction”; “The cost of surgery, minimizing the treatment cost; “the most difficult to recognize the objective basis”; “the expression of direct trade is an exaggerated expression that is difficult to be considered within the permissible scope under commercial practice; and the degree of the exaggeration’s degree has reached the impact on the medical institution or the method of selecting the instant treatment by causing confusion to the consumers.”

Therefore, the advertisement of this case constitutes "advertisement with contents that are likely to mislead consumers". Thus, this part of the other plaintiff's assertion is without merit.

(3) On the third argument of the plaintiff

As seen earlier, in light of the overall circumstances revealed in the argument of this case, the plaintiff puts a "advertisement with a content that is likely to serve as a consumer beyond the permissible range in light of the nature of the medical advertisement," which is likely to cause confusion in the patient's medical institution and method of procedure. It is highly necessary for the public interest to strictly regulate advertisements with an exaggerated relation to the relationship that directly affects the health of the general public. Through the instant disposition, it is possible to protect medical consumers by reducing damages caused by advertisements without objective proof and by selecting a reasonable medical institution and method of procedure. Accordingly, the plaintiff was placed under suspicion of violation of the Medical Service Act and the suspension of indictment was imposed on the defendant. Accordingly, the defendant also reduced the disposition to the maximum extent permitted by the rules on the administrative disposition related to the medical service of this case, so that the suspension of dental license is 15 days, and thus, the plaintiff's violation of the principle of excessive prohibition or proportionality or the principle of discretionary power or abuse of discretion is not justified.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges

Judges OOOO-O

Judges OOO -

Judges 000

Site of separate sheet

Related Acts and subordinate statutes

◆ 의료법

Article 56 (Prohibition of Medical Advertisement, etc.)

(2) No medical corporation, medical institution, or medical person shall run any of the following medical advertisements:

1. Advertisement for new medical technology without going through the evaluation under Article 53.

2. Advertisement that carries details feared to mislead consumers by guaranteeing the effect of treatment, etc.;

3. Advertisement with any content comparing the function or method of medical treatment of other medical institution;

4. Advertisement that defames another medical corporation, medical institution, or medical person;

5. Advertisement with any content that directly exposes surgery, such as the scene of an operation;

6. An advertisement that omits important information, such as serious side effects in relation to the functions and methods of medical treatment;

7. Advertisement that includes any content not recognized objectively or groundless;

8. Advertisement that expresses in the form of an article or an expert opinion using a newspaper, a broadcasting medium, a magazine, or any other medium;

9. Advertisement with any content not examined in accordance with Article 57 or different from the content examined;

10. Other medical advertisement that causes, or is likely to cause, a serious hazard to national health.

advertising with any content prescribed by Presidential Decree

(3) No medical corporation, medical institution, or medical person shall run any medical advertisement with a false or exaggerated content.

(5) Necessary matters concerning medical advertisements, such as detailed standards of medical advertisements prohibited pursuant to paragraph (1) or (2).

The Presidential Decree shall be prescribed.

Article 66 (Suspension, etc. of Qualification)

(1) Where a medical person falls under any of the following subparagraphs, the Minister for Health, Welfare and Family Affairs shall determine license qualifications for up to one year:

(2) If it is necessary to make a determination with respect to medical technology, the opinion of the relevant expert.

may be determined at all times.

7. When he/she runs any medical advertisement, in violation of Article 56 (2) through (4) or 57 (1);

Article 68 (Criteria for Administrative Disposition)

Detailed criteria for administrative dispositions under Articles 63, 64 (1), 65 (1), and 66 (1) shall be prescribed by Ordinance of the Ministry of Information and Communication for family members with health and welfare.

◆ 구 의료법 시행령 ( 2008 . 12 . 3 . 대통령령 제21148호로 개정되기 전의 것 )

Article 23 (Standards for Prohibition of Medical Advertisement)

(1) The detailed criteria for medical advertisements prohibited pursuant to Article 56 (5) of the Act shall be as follows:

1. Advertising new medical technology which has failed to undergo the new medical technology assessment under Article 53 of the Act;

2. Expressions or exchanges that a specific medical institution or medical person's function or method of medical treatment has an essential effect on the treatment of a disease;

Advertising a person's treatment experience room or clinical experience of not more than six months;

3. Excellent treatment methods of specific medical institutions and medical persons compared with those of other medical institutions or medical persons;

advertising with the content that it is effective.

4. Function or medical examination and treatment of other medical corporations, medical institutions, or medical persons with intent to defame them;

Advertisement of any unfavorable fact about the method

5. Videos and photographs showing the scenes of operations of patients performed by medical persons, or the refund of patients, etc.;

Advertising by inserting any thing that causes a sense of aversion;

The advertisement of medical practices, methods of treatment, etc. may seriously harm the safety of patients anticipated (harm).

Advertising by omitting important information, such as likely side effects;

7. Details or objective methods of medical examination and treatment which are not objectively recognized with respect to the functions or methods of medical institutions and medical persons;

Advertising without basis;

8. Freedom of newspaper, etc. and freedom of opinions of engineers or experts concerning the functions or methods of medical treatment of specific medical institutions;

Periodicals or online newspapers under Article 2 of the Act on the Guarantee of Functions, or Article 2 subparagraph 1 of the Broadcasting Act;

(1) include the contact information, drug map, etc. of a specific medical institution while carrying or broadcasting the broadcast;

(b) Advertising by broadcast;

9. Advertisement of the medical advertisement subject to review pursuant to Article 57 (1) of the Act without undergoing review or undergoing review;

its contents different from the content.

(2) The Minister for Health, Welfare and Family Affairs shall advertise medical corporations, medical institutions or medical personnel on their Internet homepage.

In the case of conducting a medical advertisement, the detailed standards of the medical advertisement prohibited by paragraph (1) may be determined and publicly announced.

Article 24 (Medical Advertisement Subject to Review and Entrustment of Review Affairs)

(1) Pursuant to Article 57 (1) of the Act, a medical corporation, medical person, or medical institution shall engage in any of the following media:

When intending to run a medical advertisement, it shall undergo deliberation by the Minister of Health, Welfare and Family Affairs.

1. Periodicals and online newspapers under Article 2 of the Act on the Freedom of Newspapers, etc. and Guarantee of Their Functions;

2. Placards, posters and leaflets among outdoor advertisements under subparagraph 1 of Article 2 of the Outdoor Advertisements, etc. Control Act;

◆ 구 의료관계 행정처분 규칙 ( 2009 . 5 . 15 . 보건복지가족부령 제110호로 개정되기 전의 것 )

Article 4 (Criteria for Administrative Disposition)

The criteria for administrative dispositions under Article 68 of the Medical Service Act and Article 25 of the Medical Technicians, etc. Act shall be as specified in the attached Table.

[Attachment Table]

The criteria for administrative disposition (Article 4-Related)

1. Common standards:

(d) If an offense committed by any medical-related statute falls under any of the following, the administrative agency shall be prescribed by these Rules:

Notwithstanding the criteria for administrative disposition to be taken, the relevant disposition shall be mitigated within the scope of mitigation standards in consideration of such circumstances.

may take such action.

2. Individual standards:

A person shall be appointed.

(a) The Medical Service Act (hereafter referred to as the "Act" in this Table) and the Enforcement Decree of the Medical Service Act (hereafter referred to as the "Decree" in this Table);

(2) if the person violates the Act.