무면허 의료행위의 규제에 관한 고찰

Abstract

The Medical Service Law prohibits unlicensed acts of medical care which includes providing medical care without a license and providing medical care beyond the scope of the license. This is because unlicensed acts of medical care pose a threat to human life and body as well as public health. In order to regulate unlicensed acts of medical care, we first need to define the notion of medical care. This paper examines the notion of “act of medical care” under U.S. law and Japanese law and reviews the relevant parts helpful for interpreting Korean law. Since Oriental medicine does not exist in the Western world, it can make generous allowances for Oriental medicine remedies such as acupuncture, moxibustion, massage and cupping. But since Western medicine and Oriental medicine coexist in Korea, there is little room to recognize complemental and alternative medicine other than those two. The Supreme Court is very strict in its interpretation and regulation of unlicensed acts of medical care. Most instances in which there is any contact relating to health with the body and it is within the domain of “force applied,” it is determined to be an act of medical care. Recently, the Constitutional Court held that the current Medical Service Law which restricts complemental and alternative medicine remedies such as acupuncture and moxibustion is constitutional (4 judges voted in favor of and 5 against the unconstitutionality of the restrictive law). This reflects changing conceptions among the Korean people and is a good indicator that some allowances for complemental and alternative medicine should be made in the near future. Therefore, at the present juncture, rather than focusing on the restriction of these practices on the grounds that they may pose a risk to human life and body or public health, we should grant some qualifications for areas of complemental and alternative medicine that are not profit-oriented and low-risk. We should take measures to prevent injuries to the public’s right to health in the event that the Medical Service Law provisions restricting unlicensed acts of medical care are held unconstitutional one day and thereby causes chaos in the healthcare sector.