한의사의 초음파 진단기기 사용과 무면허의료행위 -대법원 2022.12.22. 선고 2016도21314 전원합의체 판결을 중심으로-

Abstract

Even before the judgment of the target judgment, judgment on the unlicensed medical practice of oriental doctors has been made through the judgments of the Supreme Court and the Constitutional Court. This target judgment changed the existing precedent, naming it a 'new judgment criterion' that is different from the previous judgment criteria. It is said that the 'new judgment criteria' disclosed by the majority opinion of the target judgment are largely different from the previous judgment criteria in three aspects. Indeed, like the majority opinion of the target judgment, a question arises as to whether it is a 'new judgment criterion'. When looking at the Supreme Court ruling, which is called the previous judgment criterion, the Supreme Court ruling at a similar time, and the decision of the Constitutional Court, it seems to be a 'resolution' of contradictory views rather than a 'new judgment criterion'. However, there are also judgments that the majority opinion of the target judgment should look at from a positive perspective. In other words, with the development of science and medical engineering, overlapping areas may occur in the medical field. It can be seen as a positive evaluation that the majority opinion of the target judgment recognized these overlapping areas. Despite this, there is still homework to be done. To what extent the overlapping area will be allowed. This should not be viewed as a matter of conflict between the directives of doctors and oriental doctors. Also, it should not be considered that oriental doctors were allowed to use medical devices based on all Western medicine through the target judgment. Furthermore, it is not a desirable direction to convert the dualized medical system, a special situation existing in Korea, to unification. Therefore, it is necessary to systematically and legislatively solve what medical devices doctors and oriental doctors can use overlappingly.