근대국가와 의료법 : 헌법학적 및 역사적 고찰

Abstract

This paper examines the legal and institutional changes in state intervention in healthcare systems during the formation and development of modern states, focusing on the interaction between public health and state governance from constitutional and historical perspectives. In early modern states, healthcare was subject to state control, primarily centered on public hygiene and disease prevention. Through the transition to the rule of law state (Rechtsstaat) and social state (Sozialstaat), healthcare evolved from private contracts to public institutions. The rule of law state regulated healthcare systems to protect public health, while the social state established the right to health as a fundamental right and promoted healthcare accessibility and equity. This legalization of healthcare is significant as it established an institutional framework that systematized the entire healthcare system within legal boundaries and secured the public nature of healthcare services. This study analyzes the evolution of healthcare law in relation to changes in state role models - from police state to rule of law state and social state. Through examining key Constitutional Court decisions, it discusses how modern healthcare law functions as a tool for realizing fundamental rights, including the right to health, freedom of occupation, and equality. By analyzing Constitutional Court rulings on medical advertising regulations, specialty designation restrictions, and limitations on medical institution establishment by dual license holders, it clarifies constitutional review standards for healthcare regulations. Furthermore, it addresses challenges such as balancing the public nature of healthcare services with their economic characteristics, setting constitutional limits on healthcare regulation through the principle of proportionality, and legally structuring modern healthcare systems. The study concludes that the state's role in modern healthcare systems should be redefined from the perspective of 'harmonizing autonomy and regulation,' and healthcare legislation should be able to flexibly respond to changing healthcare environments while realizing constitutional values.