• 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.6 no.1
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• pp.153-164
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• 2005

• 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.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.20 no.2
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• pp.43-82
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• 2019

In Korea surrogate medical decision makings happen without legal grounds. The purpose of this article is to research the issues in preparing policies for decision-making on behalf of unrepresented patients. As aspects of comparative law, there are two approaches. One of them is to regulate default surrogate list. If no agent or guardian has been appointed, some legislatures provide that members of patient's family who is reasonably available, in descending order of priority of not, may act as surrogate: (1) the spouse, unless legally separated; (2) an adult child; (3) a parent; or (4) an adult brother or sister. If none of them is eligible to act as surrogate, some legislatures allow close friends to make health-care decisions for adult individuals who lack capacity. On the other hand there are other legislatures which provide no surrogate decision maker list but oblige the responsible authority to determine with advice of family members or friends of the patient. In the end the first approach can not guarantee that the surrogate decision maker like family members or friends will determine in the best interest of the patient.

• The Korean Society of Law and Medicine
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• v.24 no.1
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• pp.43-65
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• 2023

The healthcare industry is a digital healthcare that combines technology based on the 4th Industrial Revolution, dealing with information on individual health and medical care, and is a fusion of health care services and medical science and technology. It is questionable whether digital healthcare according to the paradigm change can be discussed by the concept of medical practice under the existing Medical Act. There is no clear definition of the concept of medical practice in the Medical Service Act, but the concept is established through precedents. In addition, under the Medical Service Act, the subject of medical practice is limited to medical personnel. However, digital healthcare sometimes diagnoses and treats diseases using digital technology by medical personnel. On the other hand, what is possible by non-medical personnel is digital healthcare. This is because digital healthcare is understood as a concept that includes health care such as exercise, eating habits, and weight control. For this reason, if the concept of medical practice under the "Medical Act" on digital healthcare is included, it is subject to criminal punishment for "unlicensed medical practice" prescribed in Article 27 of the "Medical Act". In the health and medical industry, digital transformation and convergence with information and communication technology are rapidly progressing. As a result, there is a need to newly define it as 'digitalized medical practice' or 'information and communication technology (ICT)-based medical practice' separately from existing medical practices. The concept of medical practice has variability, not a fixed and invariable concept. However, in response to this demand, it is not an infinite expansion of the concept of medical practice, but a request to reset its scope. Therefore, the concept of medical practice should be legislated by reflecting the demand of consumers for the medical service system.

• Journal of the Korea Convergence Society
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• v.10 no.8
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• pp.121-128
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• 2019

Medical services should be provided not only to patients but also to medical staff who are the main actors of medical treatment. This paper is based on Ethnography, observing the behavior of medical staff performing medical actions and finding what is the most frequent of physical medical treatment. In particular, I observed the need for recognition and performance of the clinical workforce for invasive medical treatment. Based on the Insight from the observation and analysis of medical staff's behavior on intravenous fluid therapy and in-depth interview, I defined four design value factors. Plus, I suggest a design prototype with a proposal for designing a medical consumable kit for intravenous fluid therapy to validate the design elements. Kitting medical consumables simplify the preparation and disposal process throughout the treatment, enabling rapid medical action and increasing work efficiency.

• 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.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.

• Journal of Oral Medicine and Pain
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• v.30 no.2
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• pp.257-268
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• 2005

It is recently suggested in Korea that Resource-Based Relative Value Scale (RBRVS) is an alternative plan of Korean Dental Fee Schedule which has been operated on a fee-for-service basis since the introduction of the national health insurance program in 1977. RBRVS applicable to diagnosis and treatment for temporomandibular disorders (TMD), a common cause of orofacial pain, is needed to be estimated in Korea and the establishment of the standard terminology of dental procedures for TMD should be preceded. The purposes of this study were to develop a new classification system of health care service items for TMD and to investigate time needed for each item, which enables RBRVS to be estimated prior to establishment the payment system of health care services for TMD. The dental service items for TMD in this study were categorized through Delphi process which 10 TMD specialists were participated in and the time needed for each service item was investigated by work sampling and time study method with a stopwatch. The results of this study demonstrated the new classification system of dental services for TMD comprising 151 service items and exhibited the average time for each items ranging from 7.22 min for cold laser therapy to 171.71 min for direct fabrication of anterior repositioning splint. Conclusively, it is suggested that the classification system for TMD developed in this study, considering specific characteristics on basis of resources for health care service of dental procedures, should be helpful to estimate payment level for each service item.