醫療公法(Medical Public Law)의 基礎로서의 (齒科)醫療行爲 ― 의료행위의 개념 및 범주에 대한 공법적 고찰 ―

Abstract

The purpose of the national regulation through the Medical Service Act(hereinafter ‘the Act’) is to protect and promote the health of the people as clearly shown in Article 1(Purpose) of the Act. To this end, the State imposes certain public duties, such as the prohibition against unlicensed medical practices, on doctors and dentists. Such ground rules of duties in public law basically act as codes of conduct and also serve as court rules for the court. And this function is maximized as administrative penalty. By the way, the specificity of administrative penalty, which is distinguished from criminal punishment, requires examination of the legitimacy of public law duties constituting constituent elements. Hereupon it is necessary to establish appropriate concept and category of medical practice in relation to administrative penalty against violation of the Act.The Act, however, adopts a system that openly defines the medical practice in consideration of the development, the possibility of change and the professionality in the field. As a result, judicial precedents have to play a role in complementing the gap of such open regulations. In this context, ‘the Judgment’ recognized what was the criteria for the unlicensed medical practice of the dentist and whether the Botox injections for esthetic treatment was a dentist's unlicensed medical practice. However, ‘the Judgment’ seems to be considerably casuistic, so it seems to be neglecting much of the function as the norm of behavior as opposed to the function as the judicial rule of duty in the public law, which is the constituent elements of administrative penalty. In addition, it can be considered that the significance of the duty in public law is considerably attenuated by focusing on the application of the principle of legality(Nulla poena sine lege) in judging the constituent elements of punishment. In short, I can agree on the application of the principle of legality in terms of criminal judgment on ‘the Judgment’, but it is difficult to agree with the reasoning and grounds about the judgment of the duty in the public law. In particular, the majority opinion commented on the curriculum at the dental school or the college of dentistry while judging the scope of the dentist's practice. However, this is more difficult to agree because it is acknowledging that those who should follow the norm can form the authority of their own actions themselves.