• The Korean Society of Law and Medicine
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• v.21 no.3
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• pp.3-33
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• 2020

Telemedicine can be defined as "medical activities performed remotely by medical personnel using information and communication technology." So far, many scholars in Korea have understood that only telemedicine between medical personnel is allowed and telemedicine between medical personnel and patients is prohibited based on Article 34 of Medical Service Act. However, Article 34 is only a restriction on the performing place of medical profession, not a prohibition on telemedicine itself. And, there are no regulations prohibiting telemedicine under the korean medical law. So, it is difficult to say that telemedicine is generally prohibited under the korean medical law, apart from the health insurance medical treatment benefit standards. However, there is controversy in interpretation regarding the meaning of "direct diagnosis" in Articles 17 and 17-2 of Medical Service Act. The Constitutional Court of Korea interpreted this as "face-to-face diagnosis", while the Supreme Court of Korea interpreted it as "self diagnosis". In light of the dictionary meaning of 'direct' and the interpretation of related medical law regulations, I think the Supreme Court's interpretation is valid. Although "direct diagnosis" does not mean "face-to-face diagnosis", the concept of "diagnosis" implies "principle of face-to-face diagnosis". In addition, "non-face-to-face diagnosis" are only allowed to supplement "face-to-face diagnosis", so the problems caused by "non-face-to-face diagnosis" can be fully overcome. In the end, the limit of telemedicine is how faithful the diagnosis was.

• The Korean Society of Law and Medicine
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• v.12 no.2
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• pp.163-187
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• 2011

On March 11, 2011, the Korea National Assembly finally passed the bill on the Damage Relief on the Medical Malpractice and Mediation for Medical Dispute. One of the features of this Act is including "The Subrogation Payment System for Damage (abbreviated SPSD)". This System is that 'Korean Medical Dispute Mediation-Arbitration Board' pays the damages, instead of the health care provider, for the patient who isn't paid damages by the health care provider despite of the Mediation or ruling. The purpose of this study is to search the problems and make improvement on SPSD. This System was introduced extreamly to the patients in order to induce them to the mediation. However,there remains several problems. In this articles, I have examined thoroughly the legal issues on SPSD. There are legal issues about the methods and ratio of the financial burden. In this connection, wide discretionary authority has been granted to administrative agencies specifically. On this account, this System clearly contains elements of a violation against the Constitutional Law. Moreover, this System can be broadly applied to the case of court ruling or the Korea Consumer Agency's mediation. But these measures go against the aim of legislation that the medical dispute can be resolved through the mediation or arbitration by this Act. In the end, these problems must be revised through the additional discussion.

• The Journal of Korean Medical History
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• v.28 no.1
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• pp.121-133
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• 2015

Objectives : The purpose of this study is to suggest how to interpret the 'practice of Korean Medicine', differentiating it from 'medical practice'. Methods : I analyze the legislations and precedents regarding the practice of Korean Medicine. Results : The Korean Medicine and Pharmaceutics Promotion Act defines 'practice of Korean Medicine' and it clearly differentiates it from the definition of 'medical practice'. However, the scope of this definition is somewhat restricting and it can violate doctors of Korean Medicine's right to equality and their academic freedom. Thus, the application of this definition of the 'practice of Korean Medicine' should be limited to the field of research and development. Meanwhile, criteria of distinguishing 'practice of Korean Medicine' from 'medical practice', which used to make a sharp distinction between Medicine and Korean Medicine by rigorously applying their academic standards, are now focusing more on protecting and improving health of the people. Discussions & Conclusions : I suppose that the distinction between the 'practice of Korean Medicine' and 'medical practice' will be more focused on public health rather than the academic stance of those two medical fields. Meanwhile, in accordance with dualistic medical system, the mutual usage of medical equipment in the area of 'treatment' should be limited while it should be allowed in the area of 'diagnosis' if it satisfies requirements suggested by the Constitutional Court.

• Development and Reproduction
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• v.25 no.2
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• pp.113-121
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• 2021

This article aims to introduce German discussion on the approval of the non-invasive prenatal diagnosis (NIPD), which started with the development of PrenaTest^® by LifeCodexx AG. The discussion started with the concern that the non-invasive nature of NIPD, such as PrenaTest^®, may rapidly expand the use and scope of similar tests, thus leading to a new era of eugenics. Based on this concern, the need for clear clinical guidelines on specific indications for NIPD has been suggested. Along the same line, it was discussed whether PrenaTest^® is against the Basic Law prohibiting discrimination on grounds of disability and whether the test is outside the scope of the purpose of gene testing limited by Genetic Diagnosis Act. Through such discussion, the Federal Ministry of Health of Germany established the preconditions for inclusion of NIPD in the German public health insurance system. For this, the German motherhood guideline was amended and the information for the insured persons provided to pregnant women was included in the amended guideline. Such discussion made in Germany provides insight on which points should be considered when various gene testings are accepted in Korea, in which genetic communication has not been systematized yet. In particular, German counseling system for pregnant women will provide valuable insights for Korea where the direction for regulations on abortion has not been established even after the ruling by the Constitutional Court that charges for abortion are against the constitution.

• The Southeast Asian review
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• v.28 no.2
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• pp.85-117
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• 2018

This paper discusses the development of labor law in Indonesia after the 1998 reformasi. The end of the authoritarian regime and the subsequent introduction of democratic institutions in the country have opened up new spaces to restructure labor relations. The government promulgated a set of new labor laws that has brought tremendous changes to the employment system and the system of labor disputes settlement. In the face of the challenges these changes have created, labor unions are using alternative means to defend their members' interests. This paper shows how labor law reform has set a new social contract between the government, employer associations, and the labor movement.

• Journal of Biomedical Engineering Research
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• v.42 no.1
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• pp.7-17
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• 2021

In the case of domestic medical device advertisements, it is possible to proceed with the advertisement after medical device certification, and pre-deliberation is possible based on the medical device technical document. However, there are some medical device advertisements that stakeholders in administrative procedures have no choice but to misunderstand in customs and laws that do not consider users. In addition, medical equipment and the pre-deliberation system were judged to be unconstitutional, and unconstitutional decisions were made in accordance with the principle of prohibiting pre-censorship based on the Constitution. This is because in domestic medical device advertisements, structural contradictions and user damage occur in the central structure of each stakeholder. It is necessary to reestablish stakeholder relationships, increase water solubility from customs and laws, and seek new policy proposals. In this study, we reestablish relationships with stakeholders by applying the Autopoiesis theory, and present the grounds and directions that can prevent hype and misidentified advertisements through the establishment of user-centered policies, and the measures to be taken by the Constitutional Court unconstitutional decision.

• Journal of Information Technology Services
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• v.13 no.3
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• pp.149-164
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• 2014

The laws and policies governing Korea's game regulations are becoming more and more topics for debate as we enter the Age of Internet. The nature of the basis for Internet regulations and policies are not rooted in freedom of speech or fundamental values of democracy, but rather focused on solving real-world problems such as protection of the youth. Furthermore, the reality is that regulatory devices for keeping the social order such as regulating gambling are being applied directly to games without consideration on the characteristics of Internet gaming, raising concerns that the expansion of constitutional values and innovative empowerment inherent to the Internet are being weakened. The Geun-Hye Park Administration which succeeded Myung-Bak Lee's Administration, even went so far as to implement the so-called "Shutdown Policy", which prohibits access to Internet games during pre-defined time zones and also instigated a time zone selection rule. In order to curb the gambling nature of Internet games, government-led policies such as the mandatory personal identification and prohibition of player selection or in other words mandatory random player selection are being implemented. These institutions can inhibit freedom of speech, which is the basis of democracy, violate the right of equality through unreasonable discrimination between domestic and foreign service providers, and infringe upon the principles of administrative law, such as laws, due process in policies, and balance in among policies and governmental bodies. Going forward, if Korea's Internet game regulations and polices is to develop in a rational manner, regulatory frameworks will need to be designed to protect the nature of the Internet and its innovative values that enable the realization of constitutional values; for example, the Internet acting as the "catalytic media for freedom of expression as a fundamental human right ", which has already been acknowledged by the Korea's Constitutional Court. At the same time, transparent procedures should be put into place that will allow diverse participation of stakeholders including game service providers, game users, the youth and parents in the legislation and enforcement process of regulatory institutions; policies will also need to be transformed to enable not only regulatory laws but also self-regulation system to be established. And in this process, scientific and empirical analysis on the expected effects before introducing regulations and the results of enforcing regulations after being introduced will need to be strengthened.

• The Korean Society of Law and Medicine
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• v.21 no.1
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• pp.187-220
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• 2020

Today, administrative legislation is becoming more and more important in that it not only sets the legal life relationship of the people in great detail and detail, but is closely related to the occurrence, extinction, and alteration of rights and obligations held by prisoners. In the United States, the types of administrative legislation are divided into substantive and interpretative regulations, so-called substantive regulations, which give prior notice and opportunity to comment on interested parties through formal or informal administrative procedures in accordance with Article 553 of the Federal Administrative Procedures Act. On the other hand, the interpretation regulation, which is "the regulation established by the Administration for the simple interpretation of statutes," does not require prior notice or comment because it does not affect the people's rights obligations. The Azar v. Allina Health Service, 587 U.S. 1804, 2019 ruling by the U.S. Constitutional Court, subject to this research paper, is about a dispute over a new decision to require Medicare to determine the amount of compensation for care providers that provide medical services for the poor, and should the regulations be regarded as substantive under the Administrative Procedures Act and should not be given a hearing or a simple internal process for processing. Given that the current administrative procedure law of our country stipulates the procedures for administrative pre-announcement through Articles 42.1 and 44.1, but that our courts have not judged violations of legislative pre-announcement procedures under the Administrative Procedures Act so far as to judge the illegality of administrative legislation, the dispute of the U.S. Constitutional Court will provide new implications for controlling legal orders beyond simple legal interpretation and has great significance in terms of readjustment of relevant regulations under future administrative procedures.

• The Korean Society of Law and Medicine
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• v.17 no.2
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• pp.177-219
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• 2016

A commercial advertisement is not only a way of competition but also a medium of communication. Thus, it is under the constitutional protection of the freedom of business (article 15 of the Constitution) as well as the freedom of press [article 21 (1) of the Constitution]. In terms of the freedom of business or competition, it should be noted that an unfair advertising (false or misleading advertisement) can be regulated as an unfair competition, while any restraint on advertising other than unfair one might be doubted as an unjustifiable restraint of trade. In terms of the freedom of press or communication, it is important that article 21 (2) of the Constitution forbids any kind of (prior) censorship, and the Constitutional Court applies this restriction even to commercial advertising. In this article, the applicability of these schemes to advertising of the so-called learned professions, especially physician, are to be examined, and some proposals for the reformation of the current regulatory regime are to be made. Main arguments of this article can be summarized as follows: First, the current regime which requires advance review of physician advertising as prescribed in article 56 (2) no. 9 of Medical Act should be reformed. It does not mean that the current interpretation of article 21 of the Constitution is agreeable. Though a commercial advertising is a way of communication and can be protected by article 21 (1) of the Constitution, it should not be under the prohibition of censorship prescribed by article 21 (2) of the Constitution. The Constitutional Court adopts the opposite view, however. It is doubtful that physician advertising needs some prior restraint, also. Of course, there exists severe informational asymmetry between physicians and patients and medical treatment might harm the life and health of patients irrevocably, so that medical treatment can be discerned from other services. It is civil and criminal liability for medical malpractice and duty to inform and not regulation on physician advertising, to address these differences or problems. Advance review should be abandoned and repelled, or substituted by more unproblematic way of regulation such as an accreditation of reviewed advertising or a self-regulation preformed by physician association independently from the Ministry of Health and Welfare or any other governmental agencies. Second, the substantive criteria for unfair physician advertising also should correspond that of unfair advertising in general. Some might argue that a learned profession, especially medical practice, is totally different from other businesses. It is performed under the professional ethics and should not persue commercial interest; medical practice in Korea is governed by the National Health Insurance system, the stability of which might be endangered when commercial competition in medical practice be allowed. Medical Act as well as the condition of medical practice market do not exclude competition between physicians. The fact is quite the opposite. Physicians are competing even though under the professional ethics and obligations and all the restrictions provided by the National Health Insurance system. In this situation, regulation on physician advertising might constitute unjustifiable restraint of competition, especially a kind of entry barrier for 'new physicians.'

• Journal of Society of Preventive Korean Medicine
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• v.23 no.2
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• pp.117-127
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• 2019

Objectives : Korean medicine practice is not specifically described in medical law, and then has always been a quarrel. So far The criteria for judgment in Korean Medicine Doctor's Medical Devices Using should clinically prove it only by Korean medicine theory and academic Traditionally descending from old ancestors. Comprehensively review of Korean Medicine Doctor's Medical Devices Using and Duty of Care, and then present a new understandings to determine future Korean Medicine Practice. Method : An existing court cases of Korean Medicine Doctor's Medical Devices Using and Duty of Care were reviewed. After reviewing various papers published for several years, various opinions were reviewed and suggested. Results : The range of Korean Medicine Doctor's Medical Devices Using has changed since the 1951 National Medical Law stipulated Korean medicine as medical professionals. The issue of the recent ruling that distinguishes medical practice from Korean medicine practice were condensed into what emphasis to interpret amongst 1) The basic principles of learning, 2) Curriculum and professionalism, 3) Risks. The Constitutional Court's ruling was important in order of 'Risk', 'curriculum and expertise', and 'basic principles of learning.' A duty of Care means an obligation to pay attention to something. A duty of Care does not mean a "highest level," but requires a "best care" and does "best under given conditions." Even in the duty of Care, Because Korean medicine has a purpose to protect and promote the health of the people, Some standards of western medicine have to be adapted to the current general medical technology. Korean Medicine doctors can recognize the duty of care in the "some basic range" of knowledge belonging to western medicine. Conclusions : The interpretation of Korean Medicine practice are currently in compatible the argument that should clearly divide Korean medicine from Western medicine, and that should be changed in light of the changing medical environment. Therefore If Korean medicine's standard is applied to the extent to which Korean Medicine doctors are educated, it is necessary to define a new definition to actively interpret Korean Medical practice. The academic basis of Korean medicine and the level of Korean medicine practice based on the books that are traditionally available, and then current textbooks of Korean Medicine College, Korean Medicine Clinical Care Guidelines, and classification of Korean standard medical practices should be standardized. Increasingly, Korean Medicine practice should be interpreted according to reality, focusing on protecting and promoting the health of the people rather than academic differences.