의료법 제17조 제1항의 ‘직접 진찰’ 과 대면진료의무를 위반한 의사의 형사책임

Abstract

For MEDICAL SERVICE ACT Article 17 Clause 1 "medical treatment by himself" provisions, the Supreme Court has shown a contrary opinion to the Constitutional Court. However, the Supreme Court has developed a logic in the premise of the above provision "medical treatment by himself" is not face-to-face medical treatment. Principle of strict interpretation should not be easy to give up under the principle of legality of crimes and punishment. This is because to prevent the arbitrary exertion of the country penalty is the core of the interpretation of criminal law. Even so, we should consider the effect of legislative goals and MEDICAL SERVICE ACT itself specified the "medical treatment by himself" obligation in law interpretation. The healthcare needs of high social responsibility and professional ethics, so directly tied to people's life and health-related, which is based on the invasive medical treatment. In this context, it should only be prescribed by a doctor, not main body of an act, face-to-face medical treatment scheme is also defined "medical treatment by himself" is. To care for patients face-to-face belongs to the most basic professional ethics of doctors. When considering the protection of legal interests existing MEDICAL SERVICE ACT, article system, and the other provisions relative, if not clearly prescribed by law, is prohibited, but can be operated prohibition of lex stricta applies, "medical treatment by himself" is clearly a 'face-to-face medical treatment' enough can be interpreted. It is possible to derive a conclusion through a grammatical interpretation, systematic interpretation and of these teleologic interpretation. However, when considering the type of the disease and the condition of the patient, the patient's medical environment, it can not be forced to have a face-to-face treatment in all cases. So if you need a medical and non-face-to-face, in this case, the exception should be introduced explicitly as Article 34 of telemedicine. It is preferable that the legalization through the exception rather than unreasonable interpretation.