2016Do309 Violation of the Medical Service Act

A

Defendant

Seoul Central District Court Decision 2015No3758 decided December 17, 2015 and 2015

early 3183 Request for Adjudication on unconstitutionality

November 12, 2020

The appeal is dismissed.

The grounds of appeal are examined.

Article 33 (1) of the Medical Service Act provides that "medical persons shall not provide medical services unless they establish a medical institution under this Act, and shall provide medical services within the medical institution, except in any of the following cases:

As above, the Medical Service Act stipulating that a medical person be engaged in medical service within a medical institution provides medical services. However, if it does not so, the medical order would be disturbed due to degradation of the quality of medical care and infringement of the patient’s right to receive appropriate medical treatment, and thus, serious risks to public health and hygiene. Therefore, it would result in a need for health and medical policy to prevent such act in advance (see Supreme Court Decision 2010Du26315, Apr. 14, 201).

In addition, Article 34 (1) of the Medical Service Act provides that "medical persons may give remote medical treatment to a medical person who is in a remote place by using information and communication technology, such as computer and video communication, notwithstanding Article 33 (1)," which limits the medical treatment act of a medical person who is allowed even though it recognizes the exception of Article 33 (1) of the Medical Service Act, to the act of a medical person with limited capacity.

In addition, considering the current medical technology level, in cases where a medical person provides medical services to a patient located in a remote area through telephone, etc., it is difficult to expect the same level of medical services as the general medical care provided by the patient’s condition by observing the patient’s condition in close vicinity to the patient, and due to the lack of information on the patient, restrictions on the use of facilities or equipment installed in a medical institution, etc., and as a result, it cannot be ruled out the possibility of causing serious risks to the public health and sanitation. This is also the major reason why the current medical law permits only remote medical treatment, as a result contrary to the purpose of Article 33(1) of the Medical Service Act as a result contrary to the above Article 33(1) of the Medical Service Act.

In full view of the foregoing circumstances, it is reasonable to deem that a medical person’s medical practice conducted by a patient remotely by using information and communications technology beyond a large-scale medical person’s act violates Article 33(1) of the Medical Service Act, barring any special circumstance.

For the reasons indicated in its holding, the lower court convicted the Defendant of the facts charged of the instant case, on the grounds indicated in its reasoning, that the Defendant performed medical practice, such as performing only literary work, prescribing herb drugs,

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err by failing to exhaust all necessary deliberations or by misapprehending the legal doctrine on the Medical Service Act, contrary to what is alleged in the grounds of appeal. The Supreme Court precedents cited in the grounds of appeal are different from this case, and thus are inappropriate to

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

Justices Kim Jae-hyung

Justices Min You-sook

Justices Lee Dong-won

Justices Noh Tae-ok