의료광고 사전심의제도에 관한 법적 고찰

Abstract

The purpose of this article is to review legally the advertisement for a medical service. In the MEDICAL SERVICE ACT of Korea, there is a regulatory system for the advertisement of medical service. Any medical corporation, institution, or physician, shall not run an advertisement for medical service. And physician shall not run an advertisement for medical service, which falls under any of article 56(2)'s advertisements. In addition, in Korea, each advertisement to be operated by any medical corporation, institution, or physician shall pass a prior review of the Minister of Health and Welfare in regard to its details, method, etc. A prior review of speech may be in violation of constitution. Because, in CONSTITUTION OF THE REPUBLIC OF KOREA article 21(2), licensing or censorship of speech and the press shall not be recognized. Even though an advertisement of medical service has a special trait (e.g. a commerciality; characteristics of the medical area; the prior restraint system against the advertisement of medical service) may be an unconstitutional censorship. The Minister of Health and Welfare may entrust affairs pertaining to the review to the organization established pursuant to MEDICAL SERVICE ACT article 28. Thus the political neutrality of the organization might be considered legally. Because the objectivity of review is related to the political neutrality of the organization. A person, intends to undergo a review, shall pay a certain amount of fee prescribed by Ordinance of the Ministry of Health and Welfare. However, everyone, intends to advertise in the area of medicine, must pay a gratuitous fee. That makes the problem of equality of the constitutional law. In conclusion, the prior restraint system for the advertisement of a medical service has many problems. We need to approach the regulation in the advertisement of medical services in a new perspective.