의료법상 기사형 의료광고 규제의 한계와 법적 과제 - 기사·광고 경계의 실질화와 협력적 사후규제 -

The structural transformation of the digital media ecosystem presents unprecedented challenges for medical advertising regulation. In particular, the proliferation of advertorial medical advertising—content that appropriates the formal attributes of journalism to obscure its commercial character—fundamentally undermines the efficacy of traditional regulatory frameworks. Although advertorials purport to advance journalism's normative commitment to objective information dissemination, they constitute hybrid communications strategically designed to induce the use of particular medical institutions or procedures, thereby functioning as deceptive strategies that impair consumers' rational decision-making regarding health information. Medical advertising directly implicates constitutional rights to life and health, thus requiring qualitatively distinct regulatory justification from ordinary product advertising. However, advertorial formats strategically exploit formal ambiguity to evade regulatory oversight, significantly diminishing the effectiveness of current regulatory regimes centered on ex ante prior review under the Medical Service Act. This study reexamines the theoretical foundations of medical advertising regulation and proposes systematic responses to the problems and regulatory challenges posed by advertorial medical advertising. Specifically, it analyzes the structure and limitations of the Medical Service Act's advertising regulatory framework, clarifies criteria for distinguishing editorial content from advertising, and advances a cooperative regulatory model appropriate for digital environments. The study employs legal interpretive analysis combined with regulatory governance approaches to critically examine the current status and problems of medical advertising regulation under the Medical Service Act. The analysis systematically categorizes the concepts and types of advertorial formats while identifying specific regulatory limitations that the current prior-review system faces when addressing advertorial medical advertising. The research findings reveal that existing medical advertising regulation under the Medical Service Act fails to provide substantive criteria for distinguishing editorial content from advertising, that the prior-review mechanism is functionally neutralized by the characteristics of advertorial content, and that self-regulatory systems have produced minimal practical regulatory effects. Moreover, the regulatory framework for advertorial medical advertising is governed by multiple statutes—including the Medical Service Act, the Act on Fair Labeling and Advertising, the Newspaper Act, and the Broadcasting Act—creating structural problems of simultaneous regulatory overlap and gaps. To address these deficiencies, this study proposes three primary reforms. First, it presents concrete and substantive criteria for distinguishing editorial content from advertising through a multilayered assessment framework that comprehensively considers economic compensation relationships, editorial independence, and the likelihood of consumer deception, along with a phased implementation approach. Second, to supplement the current prior-review-centered regulatory system, it recommends enhanced monitoring and the establishment of a cooperative ex post regulatory system involving regulatory agencies and consumer organizations. Third, reflecting the characteristics of the digital environment, it proposes expanding the scope of application of Article 56(2)(10) of the Medical Service Act. Furthermore, to remedy the fragmented regulatory system, the study argues that establishing an integrated regulatory framework is essential, particularly suggesting that developing comprehensive guidelines for advertorial medical advertising could serve as an effective measure for ensuring unified enforcement by agencies and guaranteeing regulatory predictability and effectiveness.