의사의 대면진료의무와의료법 제17조 제1항의 해석에 대한 소고

Abstract

Regarding a case dealing with the violation of the old Medical Services Law Article 17 Section 1, which bans medical doctors from issuing prescriptions without directly examining patients, the Korean Supreme Court’s decision suggested a possibility of permitting non face-to-face medical treatments. The Supreme Court reasoned that due to the principle of legality, the law is directed to issuer of prescriptions, not to face-to-face medical treatments. On the other hand, the Constitutional Court had a different view on the same law. The Constitutional Court decided that the law regulates both face-to-face medical treatments and issuer of prescriptions, and such interpretation did not violate the principle of legality. The opposing views of the Constitutional Court and the Supreme Court reflect the law regulations that had fallen behind the scientific advancement as well as perception changes in the society and among the individuals. In addition, different scope of literal interpretation has probably contributed to the gap between the decision of the courts. Although the Supreme Court’s decision reflects the Court’s good intention of protecting and advancing citizens’ health, permitting indirect treatments, especially in the cases of prescriptions with dangerous side effects, is not appropriate. Therefore, from systematic view, the Medical Services Law Article 17 Section 1 should be interpreted to regulate both issuer of prescriptions and obligation of face-to-face medical treatments.