• The Korean Society of Law and Medicine
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• v.24 no.2
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• pp.3-31
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• 2023

Der Begriff der Heilkundeausübung ist im positiven Recht in Korea nirgends festgelegt. Der wurde jedoch indirekt durch die Auslegung der Heilkundeausübung ohne Erlaubnis gemäß § 27 Abs. 1 des "Medizingesetzes" geregelt. In der Vergangenheit beschränkte der kOGH(the Supreme Court of Korea) die Heilkundeausübung auf die "Behandlung von Krankheiten und stellte fest, dass "medizinische und technische Maßnahmen, die keine pathologischen Symptome oder Funktionsdefizite im Körper voraussetzen, nicht zur Heilkundeausübung gehören." Danach änderte der kOGH seine Rechtsprechung auf "Vorbeugung oder Behandlung von Krankheiten durch Durchführung ärztlicher Untersuchungen, Optometrie, Verschreibung, Medikation oder chirurgischer Eingriffe auf der Grundlage von Erfahrung und Fähigkeiten, die auf medizinischem Fachwissen basieren, und anderer Gesundheitsfürsorge, definiert "medizinische Maßnahmen" als "eine Handlung, die eine gesundheitliche Gefahr darstellen kann, sofern diese nicht von einem Mediziner durchgeführt wird". Der Begriff der Heilkundeausübung in der Rechtsprechung ist einerseits zu abstrakt und kann eine Leerformel sein, andererseits kann seine Einschränkung eine Gefahr für die öffentliche Gesundheit erbringen. Daher besteht Bedarf an einem Kriterium, das dar derzeitige Begriff der Heilkundeausübung entsprechend dem gesetzgeberischen Ziel reduzieren kann, das Risiko für das Leben, den Körper oder die öffentliche Gesundheit von Menschen zu verhindern, das durch die Durchführung medizinischer Arbeiten durch nichtmedizinisches Personal entstehen kann. Um ein Kriterium vorzustellen, das das aktuelle Konzept der Heilkundeausübung reduzieren kann, werden in diesem Artikel das positive Recht, Theorien und Rechtsprechung zum Begriff der Heilkundeausübung in Deutschland untersucht und nach einer Alternative gesucht.

• The Korean Society of Law and Medicine
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• v.23 no.3
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• pp.117-137
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• 2022

Today, the medical system is changing into a comprehensive health care system in which collaborative relationships between medical professionals and non-medical personnels in neighboring occupational areas. The current medical act brands such "collaboration" as unlicensed medical practice, and punishes non-medical personnel who acted in the risk management of doctors as well as doctors collaborated with non-medical personnel as unlicensed medical practice. In order to narrow the gap between the legal system that regulates unlicensed medical practices and the medical reality, it is necessary to overcome the structural limitations of dualistic, nationalistic, and identity-oriented regulation of unlicensed medical practices. The legal interests of unlicensed medical practice have a dual nature as a personal legal interest of "human life and body" as well as a national legal interest of "maintenance and protection of the nation's medical license system", and it should be noted that the criteria for judging the legal interests protected by the regulations of criminal punishment should be found in "personal legal interest theory." In addition, when determining which behavior is a medical practice and evaluating its risk, the dimension of behavior and measures should be considered in a fair manner without being biased against the subject (identity) of the action. In other words, judging unlicensed medical practice should depend on whether the risk of side effects that may result from the act is reasonably managed. Considering the prospect of therapeutic dialogue between medical professionals and patients, it would be desirable for medical law policies to move in a way that does not fundamentally block the possibility of collaboration among pluralistic medical personalities.

• The Korean Society of Law and Medicine
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• v.24 no.3
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• pp.125-153
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• 2023

The Supreme Court's en banc decision on December 12, 2022 (docket number 2016Do21314) presented a new standard for determining whether the use of diagnostic medical devices by Korean medical doctors constitutes oriental medical doctors constitutes unlicensed medical practice. Based on this standard, it was determined that the use of ultrasound by Korean medical doctors was not an unlicensed medical practice. Supreme Court's Decision 2016Du51405 on August 18, 2023, is the first case in which a new standard was applied to determine that an Korean medical doctor's use of electroencephalography to diagnose Parkinson's disease and dementia was not an unlicensed medical practice. The Supreme Court abolished the previous standard that Western medical knowledge and technology should not be required for Korean medical doctors to use medical devices. However, it was unclear whether Western medical diagnosis of Korean medical doctors using diagnostic medical devices would be viewed as an an auxiliary method of diagnosis. Parkinson's disease and dementia are Western medical diagnoses. The Supreme Court judged that the Western medical diagnosis of Korean medical doctors was not an unlicensed medical practice. This clearly explains what an auxiliary method of diagnosis means. In addition, the Supreme Court excluded the principles of development and production of electroencephalography from its judgment criteria. Automatic extraction and automatic reading of test results were also excluded. The criminal court's view that the meaning of oriental medical practice should be clearly and strictly interpreted from the perspective of an oriental doctor, and it was clarified that diagnostic medical devices were excluded from criminal punishment unless it was clear that they were not related to the principle of oriental medical practice. As a result, the Supreme Court made it clear that the use of diagnostic medical devices is excluded from criminal punishment unless it is clear that they are not related to the principles of Korean medicine.

• The Korean Society of Law and Medicine
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• v.24 no.1
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• pp.131-155
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• 2023

Medical act divides unlicensed medical practice into medical practice by non-medical practitioners and unlicensed practice by medical practitioners. In the past, it was a common approach to strictly distinguish between western and Korean medicine, but the Supreme Court's Decision of December 22, 2016, Do. 21314, provided a new direction regarding the criteria for determining whether a Korean medicine practitioner is acting outside license. This paper analyzes the new criteria in detail, examines the significance of the new criteria, and explores its impact on the dualistic medical system. The difference between the new criteria and the previous criteria in the precedents is that the judgment is not based on the connection between Korean medicine principles and Western medicine principles. It is an advanced standard that actively accepts the overlap and variability of medical practice, moving away from dichotomous thinking that exclusively distinguishes between Korean medicine and Western medicine.

• The Korean Society of Law and Medicine
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• v.19 no.1
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• pp.3-20
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• 2018

Pharmacopunture is a new combined method of acupunture and oriental drugs. Recently, this method is widely used to treat traffic accident patients in oriental medicine. However, there is no evidences of treatment, no information of effects and side-effects of this method, and no information of drugs used. In South Korea, western medicine and oriental medicine are regulated differently. When a new technology is invented in the area of western medicine, that method should pass several stages of clinical trials. After that processes, that method can be done as a medical practice. However, in the area of oriental medicine, there is no process like that. According to in South Korea, medical practice without license are composed of two behaviors. First type is that medical practice is done by a person who has no medical license. Second type is that medical practice is done by a person who has a medical license but the area of the license is different. Because of this reason, the distinction between the western medical practices and the oriental medical practices is very important. Medical practices are protected by license mainly because they can harm human life or body. When we invented new medical practice and try to practice it to the patients, we should consider the risk of that method whether it is western medical practice or oriental medical practice. It is not clear that the pharmcopunture which has been done is satisfied the standard of medical treatment.

• The Korean Society of Law and Medicine
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• v.15 no.1
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• pp.59-80
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• 2014

The Medical Affairs Law regulates that Medical Doctor and Korean Medical Doctor(KMD) can practice in the boundary of each licence. But there is no clear provision to explain what practice in the boundary of MD's permitted region and what is KMD's. Moreover practice over the boundary of licence could be punished as a violation of the Law. KMD's use of medical devices have been objects of legal conflicts in the field. Because there is no clear provision in the Law, judical precedents have played the role as practical and final regulations. In this study, analyses on some judical precedents could show some rationales whether an issued KMD's use of medical devices is in the boundary of license. The courts considered the theories based on the practice, the level of required specialty and education, and the probability of danger to a patient. The judical precedents should be reviewed more precisely in the respects that it is adaptable in "the written law system"and it is desirable to divide boundaries between MD's and KMD's.

• The Korean Society of Law and Medicine
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• v.22 no.3
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• pp.3-30
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• 2021

Reasons for disqualification to restrict a medical person's license should be considered in functional and moral terms. In this sense, the grounds for disqualification of medical personnel should be expanded to include all crimes that have been declared to be "imprisonment without labor or greater punishment" by a court. Because a sentence of "imprisonment without labor or greater punishment" means that it is highly reprehensible and undermines the trust of the state as well as the trust in medical personnel. Therefore, the expansion of the scope of license restrictions for medical personnel cannot be regarded as a violation of "the Less Restrictive Alternative" rule. However, it is necessary to reflect the specificity of medical services in the license restrictions of medical personnel. This is because not all diseases can be treated with current medical services. In addition, unpredictable situations can occur at any time during medical practice. Consequently, the negligence that occurs during medical practice should be carefully examined from a functional perspective of the medical personnel. And it should be treated differently from ordinary crimes. To this end, an independent license review organization should be established to establish expertise in license management.

• The Korean Society of Law and Medicine
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• v.24 no.1
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• pp.3-42
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• 2023

The Supreme Court en banc decision on December 12, 2022 (docket number 2016Do21314) ruled that the diagnosis of endometrial hyperplasia by an oriental medical doctor using a diagnostic ultrasound device was not an unlicensed medical practice for an oriental medical doctor, which shall be scrutinized by the article 27 (1) of the Korean Medical Service Act. This ruling did not determine that a specific medical practice, especially diagnosis, based on the radiology, which is a part of western medicine, was not an unlicensed medical practice for an oriental medical doctor. Rather, it intended to clarify that the prosecutor should specify and prove the way of diagnosis and he should not prosecute mere the use of a diagnostic ultrasound device itself. To that extent, the ruling is agreeable because, as the oriental medicine community has argued, there is no regulation prohibiting the use of certain devices. It is probable, however, that the way of diagnosis established in radiology, which is a part of western medicine, was actually used in the case. In that case, there is undeniably an unlicensed medical practice for an oriental medical doctor. While many of the cases where the demarcation between (western) medicine and oriental medicine have been problematized thus far have been experimental treatment in nature, the above practice of using ultrasound appears to be frequently done in many oriental clinics, and so it is necessary to cope with the possibility of a disguised unlicensed medical practice. Another problem is the prevention of unfair practice or the protection of medical consumers. In fact, many oriental medical clinics' practice appear to have a tendency of inducing medical consumers' misunderstanding that a diagnosis based on radiology, which is a part of western medicine, were provided. It is hard to respond to this problem with demarcation between (western) medicine and oriental medicine. A new regulation against unfair practice might be necessary to implement.

• 대한한약
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• s.4
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• pp.382-406
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• 2000

• The Korean Society of Law and Medicine
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• v.11 no.1
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• pp.173-198
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• 2010

There is a system in Korea named "Advanced Practice Nurse System" qualified by the Minister of Health, Welfare and Family Affairs for Advanced Practice Nurse besides nurse licence. Medical practice is, in today's medical law, understood as a general concept colligating medical practice, nursing practice and midwife practice and so on, for it is defined as a deed of medical technique practiced by medical personnel. Referring to the fact that the Supreme Court recognizes medical personnel as people who have medical expert knowledge, nursing practice can be recognized as a region of medical business and therefore it is not necessary to prescribe nursing practice separately from the definition of medical practice on a precedent, because nurse belongs to medical personnel. According to the precedent regarding 'Unlicensed Medical Practice of Advanced Practice Nurse for Anesthesia' recently sentenced by the Supreme Court, the medical practice is only allowed a doctor because it is 'in need of special knowledge and experience because of high danger on human body' and it is judged to be an unlicensed medical practice prohibited in medical law if it is to be done by a nurse. When considering the actual situation that System for Advanced Practice Nurse for Anesthesia is established under the circumstance that an anesthetist is in want and therefore the operation has not been performed on time, and that it is being expected an anesthetist to be in need, it is necessary to legislate for the range of medical practice of Advanced Practice Nurse so that Advanced Practice Nurse System can be practically legalized, for the role of Advanced Practice Nurse has the great possibility of shrinking because the precedent has considered Advanced Practice Nurse for Anesthesia doing anesthetic operation in clinic today as a potential wrongdoer.