• 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.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.13 no.2
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• pp.263-284
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• 2012

Medical Act. article 2 (3) stipulates that "a korean medicine doctor is in charge of providing korean medical practices and korean medical health guidance". But, without a definition article about korean medical practice, the legal concept of it is defined by supreme court cases according to specific legal trials. To establish the concept of korean medical practice, it must be included that the common parts of practice of medicine involving "the purpose of practice", "the subject of practice", "the object of practice" and "other dangers", as well as the special parts of conceptual elements of korean medical practice involving "korean medicine principle" and "differentiation" and also "manufacturing of korean medicine". Accordingly, the definition of korean medical practice is defined as examining, diagnosing, differentiating, prescribing, manufacturing of korean medicine, treating, korean medical care guiding so as to treat diseases and to promote and to maintain health, based on korean medicine as traditionally handed down from the nation's ancestors and korean medicine principle which is scientifically developed and applied and also includes a practice that will cause physiological danger to human body and/or bring harm to public health and sanitation if it is not perfomed by korean medicine doctor.

• The Korean Society of Law and Medicine
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• v.16 no.1
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• pp.125-151
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• 2015

South Korea's medical system has dual systems-that is, Oriental and Western Medicine. Both are different from method for diagnosis or treatment of diseases and Scientific principle. Of the characteristics of Oriental medical practice in comparison with Western medical practice, notably, it is difficult to acknowledge specific constitutions, Oriental medical doctors' discretion is broad, and Oriental medical practice has a low invasiveness. Thus, it is difficult to acknowledge human specific constitutions when grounded on Oriental medical principles, thereby making it difficult for Oriental medical doctors to argue such specific constitutions as a means of defending against their medical negligence. And, it is difficult to prove Oriental medical doctors' negligence because Oriental medical doctors' scope of discretion is broad. Collaboration of Oriental medicine and western medicine can diagnose and treat the patient's diseases from a different viewpoint, making both medicines complementary. Oriental medicine and western medicine are independent of each other, equal, thus making them divided horizontally. Horizontal medical service division involves the principle of trust, but the principle of trust does not always apply to Oriental medicine and western medicine, because if patients shift from one area of medicine to another, the scientific principle, diagnostic method and treatment method of that medical area should be different. Application of the principle of trust to both of them needs to be analyzed according to types of medical institutions where transfers occur, and to the scope of work division between them.

• 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.12 no.2
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• pp.123-158
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• 2011

The Korea health care system has been divided into Western and Oriental (Korea traditional) medicine since 1951. In accordance with dualistic medical system, there are many conflict cases between medical doctors and oriental medical doctors. Meanwhile, there were much discussions about the meaning and criteria of medical malpractice(negligence). Especially, many cases have been built up about the criteria of medical malpractice through lawsuits. But, comparatively, there's few the medical malpractice case of the oriental medical doctors. According to a recent ruling of the Supreme Court, the legal principles of medical doctor's malpractice case are equally applied to the criteria of the oriental medical doctor's malpractice case. But there are much considerations in addition to these principles for the dualistic medical system and academic distinctiveness. This study is intended to review the dualistic medical system, the criterion of medical malpractice, and analysis this issues. To make long story short, under our dualistic medical system, judging the medical and oriental malpractice should be considered relatively. However, it makes sense that we want medical doctor or oriental medical doctor to demand the reinforced negligence to restrict the unnecessary discretion. If there is lack of evidence-based medicine or the rationality suspected, the health care providers must give enough proof.

• 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.

• Journal of the Korea Academia-Industrial cooperation Society
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• v.14 no.2
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• pp.713-720
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• 2013

The objectives of this study are to identify whether the small area variation also exists in the oriental medicine and, if it exists, what causes, to expand our boundary of research interests on the small area variation observed at the western medicine toward the oriental medicine as one of the fundamental research foundations and to provide any fundamental findings from this study results to the healthcare politicians to promote consumer's rational behaviors for the use of healthcare. This study analyzed the health insurance claim data (2010, 2011) which were the patients of western medicine and the outpatients of the oriental medicine with the top 10 most frequent diseases and looked into the variation of healthcare utilization among the areas after grouping resident area into an 86-area category. The study result shows that the small area variation was also observed at the part of the oriental medicine in which the characteristics of patients critically affect the healthcare expenditure per visit day rather than those of providers and the characteristics of both patients and providers equally affect the healthcare expenditure per patient. Therefore, this study suggests that government set up healthcare policies on the standardization of oriental medicine to prevent its over-utilization and unmet need, enforcing the roles of oriental medicine in the markets, enhancing the appropriate health care utilization, and expanding provision and sharing the health care information to reduce unnecessary health care utilization.

• 대한한약신문
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• s.115
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• pp.1-12
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• 2006

'한약부작용의 실상' 책자 관련 대책방안 논의/"한약 간동성 없다" 임상연구 결과 발표/초대 '한의학정책연구원' 변철식 원장 취임/의료비 소득공제 증빙자료제출 요청에 따른 건의/의료계, '전체 수납내역 제출'에 반발/통계청 '한국표준직업분류' 개정에 따른 의견서 제출/백강잠, 파극천 등 6개 품목 품질기준 강화/"한약재 '양제근' 투여로 아토피 피부염 치료"/한의사협회, 한의학 폄하 강력 대응/한약재 4품목, 품질부적합 판정 사용 중지/무면호 의료.조제행위 단속 시민 포상제 강화/복지부, 한의학 세계브랜드 적극 추진/WHO, 경혈위치 국제 표준안 확정/1km내 약국.의료기관 '동일명칭 사용' 논란/의협, 연말정산 간소화 방안 헌법소원/약국가, 비급여 품목 자료제출 '자포자기'/박재완 의원 "녹용 과학적 기준 검증방법 필요"/2007년부터 인삼제품에 새로운 농약기준 마련/뇌졸증 치료, 양방 59% 한방 41%/"전통의학, 양학과 결합.표준화 시급"/"100처방 발목, 유일무이한 면허권 제한"/개성공단 협력병원에 한의사 파견/지부탐방-지부장에게 듣는다/평간순기보중환 이야기/명칭이 비슷하여 감별하기 어려운 한약재/우리약초를 찾아서-오미자/한방과 항문질환/백부자의 진.위품 감별에 대한 소고

• The Korean Society of Law and Medicine
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• v.11 no.2
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• pp.337-361
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• 2010

In the case of Korea, both of modern medicine and oriental medicine are admitted as medical practices in the system. In other words, healthcare system is dualized. However, medical practice that corresponds to oriental medicine in Korea is substitution of medical practice in cases of foreign countries. For use of medical devices, it is provided only for doctors and medical technician relevant to use. Particularly, although oriental medicine is recognized as orthodox medicine in terms of the features of Korean medical system, superintendency of oriental doctors is not identical with that of doctors for use of medical devices and superintendency toward medical technicians. Recently, Cheongju District Court decided that superintendency of oriental doctor upon physical therapist is not acknowledged. It can be said that the judgement is opposed to the original verdict which judged that oriental doctors' employment and guidance of oriental doctors upon physical therapist is permissible. Hence this study aimed to review on domestic medical law system, which is dualized, roles of medical professionals, intent of the medical license system, provisions related to medical technician law and relevant precedents. Regulations on practices other than licensed practices by medical professionals are made because medical practices may affect on danger toward life and body of human and public health also. Therefore, the nation regulates medical professionals having licenses to perform medical practices within the range of the licenses. It is clearly prescribed that medical technicians may perform medical practices under instructions of doctors or dentists pursuant to the medical technician law. In addition, the court also judges that it is out of the license of oriental doctors if they use CT devices and limits the use of modern medical devices by oriental doctors. That is to say that it limits oriental doctors' employment of medical technicians and pursuant of oriental doctors on medical technicians as well.