의료인 면허 관련 판례 분석을 통해 본 사법부의 역할과 한계 : 대법원 2022.12.22.선고 2016도21314판결을 중심으로

On December 22, 2022, the Supreme Court ruled that the act of using an oriental doctor's ultrasound diagnostic device as an auxiliary means of oriental medical diagnosis could not be regarded as an oriental doctor's ‘medical practice other than licensed' in the main text of Article 27 (1) of the old Medical Act judged. This completely changes the precedent that has been established in relation to the use of ultrasound diagnostic equipment by oriental doctors, and is causing much controversy in the medical and academic circles. Therefore, in this paper, the validity of the main argument of this judgment was examined and the role and limitations of the business unit related to the change in attitude of the recent series of precedents were considered. The court looked at the validity of the main argument that the use of an oriental doctor's ultrasound diagnostic device cannot be said to be an act outside the licensed scope as follows. First, it cites the grounds that ultrasonic diagnostic devices do not fall under the category of diagnostic radiation generators and special medical equipment that require a safety management manager. This claim has room for interpretation, even if it is a modern medical device, unless it applies only to diagnostic radiation generators and special medical equipment, even if it is not a medical institution, the installation of such medical devices cannot be prohibited and their use cannot be excluded. Second, it is believed that the provision of the Medical Device Act, which prohibits oriental doctors from having the authority to guide medical technicians, does not prohibit oriental doctors from using ultrasound diagnostic devices. This argument is also due to the logical contradiction that medical technicians can use ultrasound diagnostic devices only under the guidance of doctors or dentists, whereas nurses including oriental doctors, midwives, and even the general public can not be prohibited from using ultrasound diagnostic devices alone. Third, it is said that the fact that ultrasound diagnosis in oriental clinics was not included in the treatment benefit and statutory expenses benefit under the Health Insurance Act cannot be a reason for banning the use of ultrasound diagnosis equipment in oriental clinics. This argument also goes against the principle of interpretation of the existing provisions of the Health Insurance Act on medical care benefits and voluntary non-payments. This ruling, following the 2016 ruling on facial botox treatment by dentists (Judgment 2013 Do850), can be seen as an attempt to pass new legislation on Korea's medical system and medical license system beyond legal interpretation. In the case of Korea, despite the fact that western medicine and oriental medicine have different understandings and approaches to philosophy, human body, disease, diagnosis, and treatment, which are the backgrounds, and stipulated the license system according to the dual medical system, the judiciary overturned it through interpretation. It is an act that goes beyond the role and limits of the judiciary. If it is judged that the dualistic medical system of Western or Oriental medicine is not suitable for modern medical practice and does not conform to the public's legal sentiment, this should be resolved not through legal interpretation by the judiciary, but through legal revision by the legislative branch. Although the judiciary cannot be prevented from performing legislative functions to some extent, it is necessary to be wary of excessive judicial activism in terms of democratic legitimacy.