비의료인 문신시술행위 규제에 비판적 검토 - 헌법재판소 2022. 3. 31. 2017헌마1343 결정례에 대한 검토를 중심으로 -

Abstract

This study examines the legal status of tattooing in the context of Korean law, particularly in light of the 2017Hun-ma1343 decision by the Constitutional Court of Korea, which reaffirmed that only medical professionals are qualified to perform tattooing. Consequently, tattooing performed by non-medical professionals is deemed illegal and subject to criminal prosecution. This situation presents an ironic paradox considering the renowned skills of Korean tattoo artists who are worldwide famous. While historically Japan, like Korea, regarded tattooing as a medical procedure that has to be performed exclusively by medical professionals, the Supreme Court of Japan ruled on September 16, 2020, that tattooing does not fall within the scope of medical procedures and the implications of this Japanese ruling are of importance to us. Given that instances of getting tattoos from medical professionals are exceedingly rare and the majority of tattooing procedures are performed by non-medical professionals(tattooists), the application of an overly broad interpretation of medical procedures to tattooing, and the consequent imposition of the most severe sanction, namely criminal punishment, is inconsistent with reality. The insistence on a system that does not match with reality has resulted in the invalidation of current regulation toward tattoo. Even if the enforcement of the provision protecting public health, which falls under the jurisdiction of the criminal punishment clause, leads to harm to the health rights of citizens, because they paradoxically conceal even when they get harm by getting tattoo, resulting in the detrimental impact on the lives, bodies, and public hygiene of the people, contrary to the intended purpose of the provision. Despite the lack of effective protection for the public interest, the provision that excessively restricts the fundamental rights of individuals' freedom of occupation and freedom of expression is in violation of the principles of clarity and prohibition of excessive measures. Furthermore, this study explores alternative approaches based on legislative examples from countries such as the United States, France, and the United Kingdom, aiming to bridge the gap between law and reality while maintaining a balance between public interest and private interests. It is deemed desirable to establish a separate qualification system for non-medical tattooists, supported by regulations such as a separate examination that does not require the same level of expertise as a medical licensing examination, mandatory education for a specified period, obligatory renewal of certification at regular intervals, adherence to hygienic procedures for sterilization, disinfection, and disposal of materials before and after each procedure. Implementing such regulations could minimize the societal costs and the gap between reality and the current system, while ensuring the appropriate harmony between public interest and private interests in the long run. Moreover, it would facilitate the development of the tattoo industry, which now reaches a market size of approximately 2 trillion won and continues to grow, as a national cultural and artistic industry. Furthermore, it would naturally lead to an increase in effective tax revenue through legitimate taxation in that boundary of legal industry.