• The Korean Society of Law and Medicine
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• v.13 no.2
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• pp.141-178
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• 2012

Korea's medical law prohibited medical advertisements in principle and permitted them on an exceptional cases. However, the decision of the Constitutional Court of 20005. 10. 27. 20003 Heonga 3, it was changed to a negative system which allows advertisements in principle and restricted only exceptionally. Dramatic increase of medical advertisements was made after that and many argued more deregulation because there was actually heavy regulations. In particular, there is almost no actual regulation on the article type advertisement due to the reason of protection of the freedom of press, media and occupation. However, there may be an unjust result if a specific article or specialists' opinion is made using a newspaper, broadcasting or magazine as a form of article type advertisement to specific medical specialists or medical institution or medical treatment method that falsifies consumers or makes consumers confused by unjust medical expectations or reliability, that also deteriorates just competition and that causes the misrecognition of consumers. In fact, there were actual damages of article type advertisements on the eye whitening surgery not long after the transfer to a negative system of medical advertisements. Victims raised a medical proceeding against the doctor who carried out the surgery, but there is actually no systematic warranty except for the indemnity request. Thus, this case demonstrated a vulnerable result of a negative system. As such, it is problematic that there is no proper regulations defined in the current law and regulations because of the reason of the protection of the freedom of press, publication and occupation despite damages of such article type advertisements. Accordingly, it is urgent to apply the current prevention regulations on the article type advertisements strictly, and to set up specific regulations.

• The Korean Society of Law and Medicine
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• v.19 no.2
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• pp.75-98
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• 2018

Recently, the antitrust tribunal of Seoul High Court revoked the disposition of Korea Fair Trade Commission(hereafter 'KFTC'). While KFTC determined that the restriction of Korea Pediatrician Association violated article 26 of the Monopoly Regulation and Fair Trade Act(Korean antitrust law), Seoul High court viewed that KFTC failed to prove the compulsory measures and the restraint of competition required in article 26. The 'restriction' of article 26 should be interpreted as 'excessive restriction'. Since entrepeneurs' organization is allowed to limit its member's activities, KFTC could regulate entrepeneurs' organization on a very exceptional basis. In addition, though entrepeneurs' organization did not use compulsory measures to enforce its resolution, its 'excessive restriction' could fit into the notion of 'restriction' of article 26. Under the current medical care system, the price of medical care is decided by Korean government. Therefore the restriction of Korea Pediatrician Association is not likely to have effect on the price. However, the resolution of Korea Pediatrician Association was aimed to decrease the supply of medical care. Therefore the resolution is capable of having effect on the competition. In this sense, though KFTC failed to submit direct evidence to support the decrease of quantity, there could be possibility of restraint of competition. The Seoul High Court's decision has important implications. The leading case on restraint of competition(Supreme Court 2002Du8628, Posco case) was delivered in 2007. However the remaining issue such as the standard and scope of restraint of competition is not clear. Through reappeal case of this decision, Supreme Court has to decide the line between competition and its restraint.