무면허의료행위의 실체와 불법성 판단

Abstract

Medical practice, as the series of process to prevent, diagnose and treat diseases, is the area not easily accessible by laymen without medical knowledge. Therefore, the threats of medical practice by any non-specialist to the health of the population are definitely direct and actual. In this regard, Medical service act adopted strict qualifications on the practicers, and introduced punishment provisions to unlicensed practicers. Act on Special Measures for the Control of Public Health crimes established aggravated punishment provisions for unlicensed medical practices for profit purposes. Meanwhile, in the environment of expanded concept of medical activities due to sustained reliance on folk remedies and naturopathy by the public and development of augmentative and alternative medicine, there are realistic limitations as uniform punishment on unlicensed practice is not feasible. Accordingly, the Supreme Court explained that in case of hand acupuncture treatment practice, illegality of unlicensed practice is established as a behavior that is not in breach of social normal ethics. Then how can anyone differentiate between illegal unlicensed medical practice and justified unlicensed medical practice? The definite purpose of this study is to find out the answer. In the course of the thesis, it is the outcome that this study verified substance of medical practice on unlicensed medical practice to determine whether crime charge of injuring is established, that this study criticizes the judicial precedents which considered commerciality in determination of illegality of unlicensed medical practice while explaining the relationship between unlicensed medical practice pursuant to Medical Services Act and the punishment provisions on Illegal Medical Practicer pursuant to Act on Special Measures for the Control of Public Health crimes, and that this study confirms that the determination of illegality of unlicensed medical practice shall focus on the determination of consequential illegality i.e. threat to the national health. However, due to the implication that the interpretations and discussions on determination of illegality of unlicensed medical practice are meaningful only in case applied to actual regulatory practice of actual unlicensed medical practice, it is hoped that the study on the definition in this thesis would contribute to the interpretative guideline between punishable unlicensed medical practice and justifiable unlicensed medical practice in the future.