한의사의 진단기기 사용과‘면허된 것 이외의 의료행위’에 대한최근 법원의 판단 및 검토* -대법원 2022.12.22 선고, 2016도21314 전원합의체 판결 및 대법원 2023.8.18 선고, 2016두51405 판결을 중심으로-

It may seem like a cliché, but the issue of determining unlicensed medical practice remains a hotly debated topic in our society. In 2016, dentists were allowed to perform botox treatments within the scope of their licenses, loosening the previously strict regulations on unlicensed medical practice. In recent years, one of the most sensitive debates on unlicensed medical practice has been the Supreme Court’s decision to allow a oriental medicine doctor to use an ultrasound diagnostic device. In December 2022, the Supreme Court overturned the trial court’s decision to fine a oriental medicine doctor for violating the Medical Act and sent the case back to the Seoul District Court. At the time, the Supreme Court ruled that “it is not a violation of the Medical Act for an oriental medicine doctor to practice using an ultrasound diagnostic device” and that “the act of using an ultrasound diagnostic device as an aid to oriental medicine diagnosis does not constitute unlicensed medical practice under the Medical Act, considering the development of science and technology and changes in social, institutional awareness.” The issue of harm is now awaiting the final decision of the Court of Cassation on August 24. In addition, a sensitive issue is the Supreme Court’s recent decision on whether the use of an electroencephalograph by an oriental medicine doctor to diagnose Parkinson’s disease and dementia constitutes medical practice outside the scope of his license as an oriental medicine doctor. The medical community is fiercely opposed to both of these cases, especially the decision to allow a oriental doctor to use an electroencephalograph in addition to an ultrasound. In the following, we will review, analyze, and add necessary criticisms and suggestions to the Supreme Court’s 2016do21314 (Subject Judgment A) and 2016do51405 (Subject Judgment B).