법률해석과 죄형법정주의 - 의료법 제17조 제1항의 “직접진찰” 해석을 중심으로 -

Abstract

The Constitutional Court and the Korean Supreme Court have had different views about legal interpretation. The Constitutional Court refers to "directly examining patients" as "face-to-face medical treatment.” By contrast, the Korean Supreme Court's decision suggested that "directly examining patients" does not refer to the manner of examining but to the issuing of prescription. Both courts used "the possible meaning of the law" and similar legal interpretive methods, but they still gave different conclusions. This case shows the limitation of legal interpretation based on the vagueness of legal language and the perspective of legal interpretation. A legal interpretation is regarded as the discovery of preexisting semantic concepts in law by judges. However, the meaning of legal language comes from the common understanding and rule in using legal language. The range of word meaning should be specified , and the similarity between the law and a practical case should be determined to specify the legal interpretation. As the legal interpretation of "directly examining patients" involves "face-to-face medical treatment" and medical treatment is equivalent to a face-to-face encounter, then the similarity among practical cases that include "medical treatment that is equivalent face to face" should be determined. Moreover, whether the prescription through medical treatment equivalent ace to face injures the function of proving the patients' physical condition should also be elucidated. In considering "medical treatment by a call" as an issue in the Constitutional Court and the Korean Supreme Court, assessing whether the function of proving patients' condition through "call treatment" is harmed is necessary. The manner of examining patients is not important.