한의사의 진단용 의료기기 사용 문제를 통해서 본 국가의 책임방기와 사법심사의 방향 - 대법원 2022. 12. 22. 선고 2016도21314 전원합의체 판결, 대법원 2023. 8. 18. 선고 2016두51405 판결에 대한 평석

Abstract

In South Korea, western medical practice and korean traditional medical practice have been kept divided since 1951. The Medical Service Act of South Korea prohibits medical practices done by medical practitioners beyond the scope of their own licenses as well as medical practices done by non-medical practitioners and stipulates criminal punishment and suspension of licenses for violators. Thus western medical doctors cannot use korean traditional medical skills, and also korean traditional medical doctors cannot use medical skills of western medical science. However, this two-track system is in a crisis. The issue of using diagnostic medical devices by korean traditional medical doctors is in the front line of serious conflict between western medical doctors and korean traditional medical doctors. The core of the problem is that the Government (that is the National Assembly and the competent Minister) did not stipulate the specific scope of licenses for western medical doctors or korean traditional medical doctors in laws and regulations. Supreme Court en banc Decision 2016Do21314 on December 22, 2022 decided that using diagnostic medical devices based on western medical science by korean traditional medical doctors was not an unlicensed medical practice. It was sufficient to mention the principle of clarity and strict interpretation of the requirements to justify its conclusion, but various legislative policy arguments were further mentioned comprehensively. It seemed as if the Supreme Court had sided with one side, and thus the group of western medical doctors strongly protested, and the group of korean traditional medical doctors cheered. This reveals that the Supreme Court confused the normative judgment with the legislative policy judgment and had a false self-understanding of judicial review on administrative legal issues. The authority and responsibility for concrete development of health and medical policies rests with the Government, and the role of the court should be limited to passively review whether the provisions of laws and regulations violate higher norms such as the constitutional fundamental rights or general principles of law. The boundary between the normative judgment and the legislative policy judgment is not always clear, but it is not desirable for the court to intervene too deeply into the area of the legislative policy judgment, and thus conscious efforts to restrain itself are needed.