현대 의료기기의 사용과 한의사의 면허 범위 - 서울행정법원 2016. 6. 23. 선고 2015구합68789에 대한 평가 -

박덕봉 ( Deokbong Bak ),명순구 ( Soon-koo Myoung ) 고려대학교 법학연구원 2016 고려법학 Vol.0 No.83

면허를 받아 한의원을 개설·운영하던 한의사가 엑스선 골밀도측정기 (GPA-1000)를 설치하여 환자들에게 성장판 검사를 한 것에 대하여 검찰청 은 의료법 위반을 이유로 기소유예 처분을 하였다. 보건복지부장관은 이 행 위를 이유로 1개월 15일 동안 한의사면허 자격정지 처분을 하였다. 연구대 상판결은, 해당 행위가 한의사의 면허범위를 벗어나지 않았으므로 한의사면 허 자격정지처분은 부당한 것으로 취소해 달라는 원고의 청구를 기각했다. 우리나라는 전통적인 의학기술인 한의학과 외국에서 들어온 서양의학을 다른 진료행위로 구분하므로, 한의사는 의사의 영역에 속하는 의료행위를 할 수 없고 의사는 한의사에 속하는 의료행위를 할 수 없다. 그런데 최근 의료기술의 발달로 한의학과 서양의학의 진료 기술 및 방법이 서로 접근하 면서 양자의 한계를 명확히 구분하기 힘든 경우가 자주 발생하고 있다. 그 중 빈번히 문제되는 사안이 한의사가 영상의료기기를 사용하는 경우이다. 특히 초음파 기기의 경우 한의사가 이를 사용하여 환자의 병상과 병명을 진 단하고 치료행위를 하는 것은 한의학적 지식이나 방법에 기초한 것이 아니므로 한의사에게 면허된 의료행위로 보기 어렵다는 두 차례의 헌법재판소 결정 이후에도 논란이 계속되었다. 연구대상판결은 이러한 사회적 맥락 속 에서 나온 것이다. 의사와 한의사의 이원적 면허체계를 기조로 하면서 면허 범위에 대한 추상적 기준을 설정하지 않은 현행법에서 연구대상판결과 같은 분쟁은 당 연한 것이다. 치과의사가 환자의 눈가와 미간에 보톡스 시술을 한 것이 치과의사의 면허 범위를 벗어난 의료행위가 아니라고 한 최근의 대법원 전원 합의체 판결이 화제가 되었듯, 의료기술의 발전과 시대 상황의 변화, 의료서비스에 대한 수요자의 인식과 필요는 전통적인 의료행위, 치과의료행위, 한방의료행위 개념의 경계를 모호하게 만들고 있다. 의사와 한의사의 이원적 면허체계를 유지하면서 각 의료인의 면허범위를 법해석의 문제로 돌린 것 은 입법부가 입법사항에 관한 문제를 회피한 것으로 볼 여지도 없지 않다. 그런데 다른 한편으로는, 의료행위·치과의료행위·한방의료행위의 경계에 관 한 다툼을 해결할 수 있을 정도의 개념 정의를 실정법적으로 제시하는 것이 가능할까 하는 생각도 든다. 어쩌면 핵심 문제는 각 의료행위의 개념 설정 이라기보다는 의료일원화와 같은 면허제도에 관한 근본적 해결책이 아닐까 하는 생각이 든다. A licensed Korean medicine doctor ran a Korean medicine clinic in which he operated an X-ray bone density scanner(model number GPA-1000) in order to take growth plate images. In this regard the prosecutor`s office suspended indictment for reasons of violating the Medical Act. The minister of health and welfare suspended the license of the Korean medicine doctor for 1.5 months. The Seoul Administrative Court dismissed the plaintiff`s motion for vacating the suspension of license, although the plaintiff argued that the treatment he provided was within the scope of his Korean medicine license. In Korea there is a strict differentiation of medical treatment provided in the realm of Korean medicine and Western medicine. Therefore Korean medicine doctors cannot practice Western medicine and Western medicine doctors are barred from practicing Korean medicine. However with the latest development of medical appliances it is becoming increasingly difficult to draw a clear line between the two types of medicine. Problems arise when Korean medicine doctors use medical imaging devices. Of particular significance is when Korean medicine doctors use ultrasound devices in diagnosing and treating patients. Although the Constitutional Court has twice delivered its Opinion on the matter by saying that such medical acts cannot be seen as being based on Korean medicine the debate continues to exist in this regard. The Seoul Administrative Court`s decision is in the vein of the Constitutional Court`s Opinions. Unless the current dual license system is revised and a new abstract standard for setting the scope of license is introduced the court has no choice but to deliver decisions like the one studied here. As witnessed from the Supreme Court en banc decision that recognized a dentist`s botox injection into an area around the eyes and eyebrows of a patient, the circumstances surrounding the development of modern medical technology, the changing perception of medical treatment, and other factors are blurring the line between traditional western medicine, dental treatment, Korean medicine. By maintaining the dual system between Western and Korean medicine and leaving the scope of license of doctors to the realm of interpretation, lawmakers are in a sense abdicating their duty. On the other hand, it is not easy to define the precise boundaries between traditional westernmedicine, dental treatment, Korean medicine. This is why rather than attempting to provide for a definition, a fundamental solution to the problem may be the unification of the license system of doctors.

한의사·한약사 임무 및 공공제도 중심의 의약법규 제·개정 고찰

엄석기,신민섭,권순조 한국의사학회 2013 한국의사학회지 Vol.26 No.2

Purpose : The current Medical Law and the Pharmaceutical Affairs Act, which are incapable of utilizing the research results and the advanced academic, clinical, and pharmaceutical system of the present-day Korean (Oriental) medicine, have limitations and create a paradox by provoking social conflict among the professionals in the field. The aim of this study was to find out the legal and systematic problems that contributed to a complicated conflict amongst Korean (Oriental) medicine doctors, doctors, pharmacists, and Korean (Oriental) pharmacists regarding the classification of their functions. Methods : We reviewed the history and characteristics of the legislation regarding the duties of Korean (Oriental) medicine doctors and Korean (Oriental) pharmacists as well as the relevant and important public health policies since the enactment of the National Medical Services Law in 1951. We focused on the laws and regulations that are made in the process of the separating functions of physicians and pharmacists and the dispute between the Korean (Oriental) medicine doctors and the Korean (Oriental) pharmacists in the 1990s and 2000s. Results : The legislations and amendments of the medical and pharmaceutical laws and regulations that reflect the modern academic, clinical, and pharmaceutical system of the Korean (Oriental) medicine and the research results could be summarized as follows: 1) A partial amendment of the Medical Law in 1987, which added the provision of “Oriental health guidance” as one of the duties of Korean (Oriental) medicine doctors, assured a place for Korean (Oriental) medicine doctors in the field of public health. 2) A partial revision of Pharmaceutical Affairs Act in 1994 established a new system for Korean (Oriental) pharmacists, bringing about the creation of dualistic pharmaceutical system that complements the dualistic medical system. 3) The Promotion of the Research and Development of Wonder Drugs by Using Natural Substances Act was legislated in 2000 in order to stimulate research and development of Korean (Oriental) medicine and its industrialization. 4) Oriental Medicine Promotion Act in 2003 was enacted to lay foundation to specify and promote technology and industry that are related to Korean (Oriental) medicine. Discussions and conclusions : Although the dualistic medical and pharmaceutical system is set up by the Medical Law and Pharmaceutical Affairs Act, it is shown that the relevant regulations have been developed from a perspective of the western medicine.

한의사와 의사의 업무 범위와 관련된 법령 고찰

박유리,강연석,백경희,라세환,Park, Yu Lee,Kang, Yeonseok,Baek, Kyung Hee,Ra, Sewhan 대한예방한의학회 2014 대한예방한의학회지 Vol.18 No.3

Objective : This study aims to compare the scope of practice of Korean Medicine doctors and western medicine doctors based on laws related to medical practice Method : We searched for laws related to medical practice using terminologies such as "Korean Medical practice", "Korean Medicine", "Principles of Korean Medicine", "western medicine", "Korean Medicine doctor", "western medicine doctor" at the national law information center(http://law.go.kr/main.html). Results : We categorized the laws we found into four categories: diagnosis, treatment, prescription, and all the other areas including public health. In diagnosis, both Korean Medicine doctors and western medicine doctors have a right to issue medical certificates including birth and death. However, diagnosis of a few specific diseases is allowed only to western medicine doctors. In treatment, laws related to emergency medicine and nursing at home were searched. Korean Medicine doctors and western medicine doctors are emergency care providers; however, most of emergency medicine can be done by western medicine doctors. In prescription, the scope of practice is divided by herbal medicine and western medicine. Finally, as public health professionals, both of them need to do lots of public health works. However, in some area such as vaccination, maternal and child health care, and industrial health, only western medicine doctors can practice. Conclusion : This study suggests that, in diagnosis, treatment, prescription, and all the other areas including public health, the scope of practice of Korean Medicine doctors and western medicine doctors has huge difference. There is also lack of consistency in current law, and some laws do not reflect current health care system and health care services.

한의사와 중의사의 면허제도에 관한 비교 고찰

왕비 ( Wang Fei ) 한국외국어대학교 법학연구소 2021 외법논집 Vol.45 No.3

한의학과 중의학(中醫學)은 한국과 중국의 전통의학으로서 같은 의학이론체계에서 기원했지만, 역 사에 따라 완전히 다른 의료체계로 발전하였다. 지난 세기 이래 서양의학의 빠른 치료효과와 의료장비의 발달, 그리고 과학적인 치료방법은 전세계의 의료체계에 지대한 영향을 미치게 된다. 사회발전과 의료위생 구조의 변화에 따라 노인병, 만성질환환자가 늘면서 난치병 치료에서 서양의학의 한계가 점점 뚜렷해지고 있다. 이에 반해 전통의학은 부작용이 적고 가격이 저렴하며 독특한 치료기법으로 노인병, 만성병, 난치병 등의 분야에서 강점이 점차 드러남에 따라 전세계적으로 전통의학의 인기가 다시 높아지고 있다. 한국은 1951년 국민의료법의 개정을 통해 한의학과 양의학의 두 체계가 공존하며 동등한 법적 지위를 갖는 이원화된 의료체계를 마련하게 된다. 이원화된 의료체계로서 한의학과 서양의학을 구분하고 있고 한의학과 서양의학의 교육과정과 치료방법이 다르므로 한의사의 한방의료행위와 의사의 의료 행위에 대해 면허된 것 이외의 의료행위는 무면허 의료행위로 해석하고 있다. 중국에서는 중의학(中醫學)과 서의학(西醫學)이 서로 융합, 발전하는 태세이다. 국가는 중서의결합 의학(中西醫結合醫學)을 장려하며, 국가의 정책지원하에 중의, 서의, 중서의결합의의 다방면의 의료 체계를 공동 발전시키고 있고 세계 전통의학시장에도 진출하고 있다. 중국 관련법에서는 중의사의 업무범위에 대한 명확한 규정이 없고 중·서의사가 상대 학과의 의료행위를 무제한 행사하는 현상은 현실에서 법제의 혼란을 초래할 수 있다고 사료된다. 의료행위가 고도의 위험성을 가지고 있어 전문적인 의료인이 아닌 경우 국민의 생명, 신체나 공중 위생에 대해 엄중한 위해성을 초래할 수 있으므로 무면허 의료행위는 엄격히 금지되어야 한다. 이러한 법익을 보호하기 위하여 형벌을 사용하여 제재하는 것이 마땅히 필요하지만 무면허 의료행위와 면허 된 것 이외의 의료행위를 구별 없이 강력한 형벌권의 행사는 의료인의 자율성에 심각한 제약을 야기 하였으며 자율권을 보장하는 세계적 추세에도 부합되지 않는다. 과학기술의 발전으로 인해 미래의 의료 분야에서는 현대 과학기술의 교차와 융합에 관한 더 많은 법적인 문제들을 야기할 것이다. 본 연구는 한의사와 중의사 면허제도의 비교를 통하여 두 제도 각각의 장단점을 살펴보고 한의사와 중의사의 면허제도의 원활한 전개 및 양국의 전통의학 법률체제의 건전한 발전을 촉진하고자 한다. As traditional medicine in Korea and China, Korean medicine and traditional Chinese medicine originated from the same medical theory system but developed into a completely different medical system depending on history. Since the last century, the rapid therapeutic effect, advanced medical equipment, and scientific treatment methods of Western medicine have profoundly impacted the traditional medicine system worldwide. With changes in social development and medical hygiene structure, the increase of the number of elderly and chronic diseases, and the limitations of Western medicine in treating incurable diseases are becoming more pronounced. In contrast, traditional medicine has fewer side effects, lower prices, and unique treatment techniques, which have revealed its strength in geriatric disease, chronic disease, incurable disease. As a result, the popularity of traditional medicine around the world is increasing again. Through the revision of the National Medical Law in 1951, Korea has established a dualized medical system. The dualized medical system distinguishes Korean medicine from Western medicine, and the curriculum and treatment methods of Korean medicine and Western medicine are different, medical practices out of licensed practice scope of Korean medicine doctors and Western medicine doctors are interpreted as unlicensed medical practices. In China, traditional Chinese medicine and western medicine are poised to develop fusion, and the government encourages the integration of traditional Chinese and western medicine. With the support of the national policy, it is advancing in a multilevel medical system, including traditional Chinese medicine, western medicine, and integration of traditional Chinese and western medicine. However, the related law does not have a precise regulation on the practice scope of traditional Chinese medicine doctors, and the phenomenon that traditional Chinese medicine doctors and Western medicine doctors exercise medical activities in each other’s departments unlimitedly can confuse the medical-legal system. Since medical practice involves invasions of the human body and contains risks that can cause harm to human life and public health, unlicensed medical practice should be strictly prohibited. But the strong punishment without distinction between unlicensed medical practices and medical practices out of licensed practice scope has caused serious restrictions on the autonomy of medical doctors and is not consistent with the global trend of ensuring autonomy. The development of science and technology will lead to more legal issues regarding the intersection and convergence of modern technology in the medical field of the future. This article compares the qualification system of Korean medicine doctors and traditional Chinese medicine doctors and analyzes their respective advantages and disadvantages. It seeks to promote the smooth development of the qualification system of Korean medicine doctors and traditional Chinese medicine doctors and the healthy development of the traditional medical-legal systems of the two countries.

일제강점기 한의학술잡지에 실린 한약업자 광고 분석

정지훈(Ji-Hun Jung),김도훈(Do-Hoon Kim) 한국의사학회 2013 한국의사학회지 Vol.26 No.2

Korean medical journals were continuously published during the period of Japanese colonization of Korea. Various advertisements by herbal drugs manufacturers were in these journals, targeting Korean medical doctors or students who aspired to be Korean medical doctors. The advertisements varied from small ones to large-scale ads. At first these advertisements covered only dried herbs, but with time, they came to advertise various kinds of drugs. Advertisement of merchandise drugs brought many changes to the medical culture of Korea. Korean medical doctors who only prescribed dried herbs before began to prescribe merchandise drugs as well. When treating patients, they not only used Korean drugs but also actively prescribed merchandise drugs and western drugs, showing an advancement in treatment. As Korean medical doctors played the role of providers of merchandise drugs, herbal drugs manufacturers and Korean medical doctors seemed as sellers and consumers on the surface. However, they maintained a relationship where Korean medicine worked as the common denominator. Among merchandise drugs, Yoeng-so-hwan, Bi-jeon-go, and Myeol-dok-hwan were advertised often, and this shows that people at the time suffered mostly from digestive diseases, skin diseases, and sexually transmitted diseases. Herbal drugs manufacturers were business managers whose main objective was to make a good profit, but they consisted a part of Korean medical society. Like Korean medical doctors, they were anxious about the fall of Korean medicine. As a part of popularization of Korean medicine, they encouraged Korean medical doctors to treat patients using herbal drugs and merchandise drugs. This thought was reflected well in advertisements and Korean medical doctors made use of this thought well.

관우한국전문 직무모순적 연구 -이한의사여약사집단적 한약분쟁위중심-

신순식 ( Sin Sun Sig ),이현지 ( Lee Hyeon Ji ),서부일 ( Seo Bu Il ) 대한본초학회 2003 大韓本草學會誌 Vol.18 No.4

Objectives: The occupational areas of Korean Oriental Medicine doctors and pharmacists are different. However, in Korea many pharmacists have practiced Korean Oriental Medicine. Therefore, the two professions have competed and conflicted to monopolize the Korean Oriental Medicine market. This paper analyzes the conflicts between Korean Oriental Medicine doctors and pharmacists in Korea. The object of this study is to find out the effects of the conflicts on the professionalization of both groups, Methods : This study was conducted through the methods of document analysis. Results :Korean Oriental medicine doctors have awakened to their occupational identity in the process of their conflicts with pharmacists. The doctors should have developed their own logic on the social role of Korean Oriental medicine doctors and on the characteristics, the occupational areas, and the direction of development of Korean Oriental Medicine. Conclusions : In the process of the conflicts, the Korean government and civil organizations have intervened to resolve the conflicts. And the Korean government has used a coercive measure. The intervention of the government and civil organizations has resulted in the loss of the credibility and prestige of both professions. But in terms of professionalization, the conflicts have awakened to their occupational identity and enhanced the inner integration of both group, therefore, they have become to have a character of professional group.

한의사 교의 사업 활성화를 위한 사업 신청 한의사 대상 설문조사

박정수,신선미,고호연,이동녕,김동수,이승환,황건순,성현경 대한예방한의학회 2019 대한예방한의학회지 Vol.23 No.3

Objectives : The study aimed to investigate the satisfaction, reasons for the progress, and the advantages of the school doctor of Korean Medicine (SDKM) program in the applied Korean Medicine doctors. Methods : The school doctor of Korean Medicine (SDKM) program has been conducted in 21 schools in Seoul since March 2018. The program was varied by school, included the introduction of Korean Medicine, sex education, and anti-smoking/drinking session. This survey was conducted as a paper-based questionnaire after the SDKM. Results : The SDKM results evaluation was better in the Korean doctors who applied for SDKM. The factors for negative progression of SDKM were ‘Bad cooperation of the schools’, ‘Lack of personal capabilities’, and ‘Lack of motivation’. The factors for the positive progression of SDKM were ‘Good cooperation of the schools’, ‘Support of Seoul Korean Medicine Association’. The question of prerequisites for activation SDKM Program included ‘Active cooperation of school’, ‘Expand teaching materials and programs’, ‘Support of Seoul Korean Medicine Association’. Conclusions : In order to activate the SDKM, it is necessary to cooperate with the schools, to support of Seoul Korean Medicine Association, and to expand the education program.

한의학 관련 이미지 연구

김재익,명예슬,안수연,이영지,조충식,Kim, Jae-Ik,Myeong, Ye-Seul,Ahn, Soo-Yeon,Lee, Yeong-Ji,Cho, Chung-Sik 대한한방내과학회 2014 大韓韓方內科學會誌 Vol.35 No.3

Objectives: Recently, the utility rate of Korean-Medical service has been a 6 percent of the domestic market share in medical service, so there is a lot of effort to increase utility rate of Korean medical service. However, in spite of the importance of image to promotion, there are still few studies about image of Korean medicine. Thus, the purpose of this study was to suggest ways to increase utility rate of Korean medical service by surveying and analysing recognition of image of Korean Medicine. Methods: People aged between 20s and 40s were targets of investigation. We divided respondents into three groups depending on relation approximation with Korean medicine (weak-related group, normal-related group, strong-related group). The questionnaire consisted of questions about images of Korean medicine, conducted through online and personal interviews. Results: In total, 282 members responded to the survey and the results of the analysis were as follows. The more a person was related to Korean medicine, the greater the tendency to experience Korean medical service. The most associated taste about Korean medical institutions was Bitterness, smell was smell of Korean medicine, color was yellow, feeling was warm, sound (instrument) was drum, and treatment pattern was Acupuncture, respectively. The most associated image of acupuncture was painful, and the most associated age of Korean medical doctors was 40s. The most associated general term of Korean medicine was physical constitution, and most associated pathological term was extravasated blood. Conclusions: This study can be very useful for future image marketing of Korean medicine because there have been no other studies about image on Korean medicine before now. But this study has also some limits like area, respondent selection, etc., so a more detailed and comprehensive survey is needed.

한의사 교의사업 활성화를 위한 한의사 교의 대상 설문조사

박장경,성현경,신선미,고호연,김동수,박승찬,박정수,Park, Jang Kyung,Sung, Hyun Kyung,Shin, Seon Mi,Go, Ho-Yeon,Kim, Dong Su,Park, Seung Chan,Park, Jeong-Su 대한예방한의학회 2018 대한예방한의학회지 Vol.22 No.2

Objectives : This study aimed to investigate the satisfaction of Korean medicine doctors (KMD) who conducted Korean medicine school doctor program (KMSD). We are going to use study as a foundation for activation KMSD program. Methods : Seoul Korean medicine association and Seoul metropolitan office of education conducted KMSD program for 22 schools in 2017. The program included health lessons, health counseling, and health care programs. After program finished, we carried out self-administered questionnaire survey to KMD who participated in KMSD program and we analysed it. Results : A total of 45 people answered the questionnaire, and 56% of respondents answered as 'Good progress' and 44% answered as 'Bad progress'. The reason for good progress was 'Good cooperation of School' (47.4%). 'Personalized program for participant' (23.68%), 'Support of Seoul Korean Medicine Association' (21.1%). The reason for 'Bad progress' was 'Bad cooperation of School' (37.8%), 'Lack of personal circumstances' (32.4%), 'Lack of motivation' (16.2%). The advantage of KMSD program included 'It is helpful for positive perception of the Korean medicine' and 'Korean medicine can contribute to improving public health, which is the health of schools' was 25%, 'It is helpful in expanding the services of Korean medicines to children and adolescents' was 17.6%, 'Highly satisfaction in participations' was 15.7%. The question of prerequisites for activation KMSD Program included 'Active cooperation of school' was 35.05%, 'Expand teaching materials and programs' was 20.62%, 'Support of Seoul Korean Medicine Association' was 15.46%. Conclusions : We will organize and activate programs of KMSD program and conduct program based on harmony of local community and school support, research of school health program. The program will contribute to improve student health and develop Korean health support program.

A Survey on the Status of Employees of Traditional Korean Medicine Hospitals

Bak, Yo-Han,Huang, Dae-Sun,Shin, Hyeun-Kyoo The Society of Korean Medicine 2012 대한한의학회지 Vol.33 No.2

Objectives: To undertake manpower-related improvements based on a comparison between specialists in the traditional Korean medicine hospitals(TKMH) and their counterparts in Western medicine Methods: A survey of the TKMH based on questionnaire sheets dispatched to them by mail(57 of 142 responded) in the June December, 2008 period, and on almanac statistics provided by the Ministry for Health, Welfare and Family Affairs of Korean Government. Results: Overall, the workforce engaged in the traditional Korean medicine hospitals comprises traditional Korean medical doctors(28%), nurses(23%), administrative staffs(19%), assistant nurses(9%), medical record keepers(2%), nutritionists(2%), herbal pharmacists(1%), and others(16%). Each hospital has 16.5 traditional Korean medical doctors on average, which can be broken down into 6.2 specialists, 1.3 generalists, and 9.3 residents/interns. Only 10.7% of whole of traditional Korean medical doctors work in the hospitals, compared to 54.5% of Western medicine doctors. The ratio of traditional Korean medical doctors to the entirety of employees in the TKMH is 2.5 times higher than their Western medicine counterparts, while the ratio of medical technicians to the entire employees in the TKMH is 20 times lower than in the Western medicine counterparts. Conclusions: To provide more qualified medical service in the TKMH, they will be required to increase the proportion of non medical doctor employees, like Western medicine counterparts.