[1] Whether a medical advertisement exceeding the allowable scope under Article 33(1) of the Enforcement Rule of the Medical Service Act can immediately be seen as an exaggerated advertisement under Article 46(1) of the former Medical Service Act (negative)

[2] The case holding that the advertisement of Korea Council members and members of the internal department containing the phrase "an advertisement leaflet" in the first place that instructs the establishment of two medical institutions only in the same building while operating them separately constitutes an exaggerated advertisement prohibited under Article 46 (1) of the former Medical Service Act

[1] Article 4 of the former Medical Service Act (amended by Act No. 6686 of Mar. 30, 2002) provides that "where an advertisement is made in violation of Article 46 (1) of the Act and in violation of Article 46 (1) of the Enforcement Rule of the Medical Service Act, "where an advertisement is made in an exaggerated manner with respect to medical service," the provision of Article 46 (1) of the same Act provides that "where an advertisement is made in violation of Article 46 (4) of the Act and Article 33 (2) of the Enforcement Rule of the same Act, the provision of the Act provides that "where an advertisement is made in violation of Article 46 (4) of the Act and Article 46 (1) of the same Act and Article 33 (1) of the Enforcement Rule of the same Act, the provision of the Act does not provide for the criteria for disposition when an advertisement is made in violation of Article 46 (1) of the same Act and Article 46 (4) of the same Act and Article 3333 (1) of the same Enforcement Rule of the same Act.

[2] The case holding that the advertisement of Korea National Assembly members and the members of the internal department included the phrase, etc., such as the phrase, 'an advertisement leaflet' in the first place that instructs the establishment of two medical institutions only in the same building while separately operating them constitutes an exaggerated advertisement prohibited under Article 46 (1) of the former Medical Service Act (amended by Act No. 6686 of Mar. 30, 200)

[1] Articles 46(1) and (4), and 53-3 of the former Medical Service Act (amended by Act No. 6686 of March 30, 2002), Article 33(1) of the Enforcement Rule of the Medical Service Act, Article 4 [Attachment Table] 2.b. (17), and (19) of the Rules on Administrative Measures Concerning Medical Service / [2] Article 46(1) and (4) of the former Medical Service Act (amended by Act No. 6686 of March 30, 202), Article 33(1) of the Enforcement Rule of the Medical Service Act, Article 4 [Attachment Table] 2.b. (17), and Article 19 of the Rules on Administrative Measures Concerning Medical Service

Plaintiff

Youngcheon Market

Daegu High Court Decision 2002Nu1039 delivered on November 22, 2002

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

1. A. According to the reasoning of the lower judgment, the lower court acknowledged the facts as indicated in its reasoning based on the recruitment evidence, and determined that the medical advertisement exceeding the allowable scope stipulated in Article 33(1) of the Enforcement Rule of the Medical Service Act constitutes an exaggerated advertisement under Article 46(1) of the former Medical Service Act (amended by Act No. 6686, Mar. 30, 2002; hereinafter the same) solely on the ground that the advertisement by the Plaintiff and the joint Plaintiff through a leaflet or banner was beyond the allowable scope stipulated in Article 33(1) of the Enforcement Rule of the Medical Service Act.

Article 46 (1) of the former Medical Service Act provides that "no medical corporation, medical institution, or medical person shall make a false or exaggerated advertisement concerning the service of medical treatment", and Article 46 (4) of the same Act provides that "the scope of advertisements concerning the service of medical treatment and other matters necessary for other medical advertisements shall be prescribed by Ordinance of the Ministry of Health and Welfare", respectively, and Article 33 (1) of the Enforcement Decree of the Medical Service Act provides for the scope of medical advertisements permitted pursuant to paragraph (4)

However, Article 4 of the Regulations on Administrative Measures Concerning Medical Services, which provides the detailed criteria for administrative disposition pursuant to Article 53-3 of the former Medical Service Act, provides that "if a person makes an exaggerated advertisement concerning medical services in violation of Article 46 (1) of the Act, he/she shall be subject to business suspension for one month." However, Article 46 (4) of the former Medical Service Act and Article 33 (2) of the Rules provide that "if a person makes an advertisement in violation of Article 46 (2) of the Act and Article 33 (1) of the Rules, he/she shall not be subject to the disposition standards for the advertisement in violation of Article 46 (1) of the former Medical Service Act and Article 46 (4) of the former Medical Service Act and Article 33 (1) of the Enforcement Rules of the Medical Service Act, and even if examining each of the above provisions, it is difficult to accept the determination by the court below as to the medical advertisement exceeding the permissible scope under Article 33 (1) of the former Medical Service Act.

B. However, according to the records, such as evidence employed by the court below, the plaintiff and the joint plaintiff of the court below established the first and second floors of the building and operated an independent medical institution, and purchased and installed medical equipment respectively, and it can be seen that the plaintiff and the joint plaintiff of the court below were individually able to conduct various tests and treatment in each relevant field, and that the plaintiff and the joint plaintiff of the court below were not jointly established and operated as one medical institution. Thus, the plaintiff and the joint plaintiff of the court below did not cooperate to the extent that they encourage the others to undergo the examination and treatment in the relevant field. However, the plaintiff and the joint plaintiff of the court below distributed the advertisement leaflets which guide two independent medical institutions to establish the first and the second floors of the building and stated various contents of the examination in one place as well as various contents of the examination in one place among the two medical institutions, and thus, it can be viewed that the plaintiff and the joint plaintiff of the court below did not have a comprehensive cooperation system between the plaintiff and the general medical doctor of the court below and the plaintiff of the court below as one of the most organic diagnosis and treatment in each field.

C. Therefore, the decision of the court below that the plaintiff's advertising act constitutes an exaggerated advertisement prohibited under Article 46 (1) of the former Medical Service Act is just and acceptable, and the decision of the court below is not affected by the conclusion of the decision as seen earlier.

2. In light of the records, even though the advertisement beyond the scope of permission for the method of inspection of a medical institution or various kinds of clinics is frequently conducted at a local council-level medical institution, it causes confusion in the patient's choice of medical institution by making an exaggerated advertisement more than the scope of permission for advertisement. In the case of an advertisement subject to medical practice, there is a need for public interest to strictly regulate false or exaggerated advertisements as a relation which directly affects the health of the general public. The defendant is deemed to impose a penalty surcharge in lieu of one month for suspension of business considering the economic disadvantage that the suspension of medical service against the plaintiff is likely to cause serious harm to the public health and that the plaintiff's damage is not long, and it seems that the court below imposed a penalty surcharge in lieu of one-month for suspension of business, under the premise that Article 4 of the Regulations on Administrative Measures Concerning Medical Treatment is merely a provision of administrative regulations within the administrative agency's internal business affairs, and under the premise that there is no legal effect, it is just that the court has no illegality of deviation or abuse of discretionary authority, and there is no violation of relevant statutes.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Jae-chul (Presiding Justice)