의료법 쌍벌죄 규정에 대한 의료법리학적 문제제기

Abstract

The recently revised “Medical Law” in Korea gives rise to at least three questions. First, should doctors be subject to criminal punishment on the grounds that that the “Monopoly Regulation and Fair Trade Act” has not been effective in regulating the circulation of medicine and medical supplies? Second, will the provision of dual punishment in the new law achieve the desired results? Third, will social justice and ethics be promoted through the threat of criminal punishment? In this article we address these questions and argue for the following claims: (1) that the provision of dual punishment in the new law is illegitimate from a jurisprudential point of view, (2) that the provision of dual punishment will impede medical progress, and (3) that the tyranny of the majority and the problem of procedure in lawmaking will hinder the establishment of political justice and respect for the rule of law in Korea. The overall view defended in this article is that doctors and professional medical organizations should be granted autonomy in developing codes of conduct and professional ethics to regulate and promote the practice of medicine in Korea.