미디어시대의 의료광고 규제, ‘전파가능성 법리’의 문제점과 개선방안 ― 대법원 2016. 6. 23. 선고 2014도16577 판결 [의료법위반]을 중심으로 ― = A Study on the Theory of Propagation Possibility of the Medical Advertisement Regulation in the Media Era - Analysis on Court Decision : Decision to Medical Advertisement -

다국어 초록 (Multilingual Abstract)

Advertisements for medical services have been always been restricted due to the non-profitability or public character commonly associated with the medical sector, and also the fact that advertisements do increase medical service prices. However in recent years this practice has come under fire, as the consumers’ right to know or the freedom of speech for medical personnel are more prioritized. Furthermore as online media continues to feed consumers with information, the medical sector also recognizes the importance of advertising to enhancing competitive advantages by themselves.
The Constitutional Court medical advertisement prior review case deciding that medical advertisement is also within the scope of freedom of expression which is protected under Article 21 (1), and censorship is absolutely prohibited under Article 21 (2). However the illegal medical advertisements spreads all over the internet and other media. There has also been criticism of these old monitoring systems that left behind by day and that government is not providing the environment necessary for regulating varieties of new types of advertisements. So the medical advertisement pre-review system has reintroduced and it will begin from September 28th 2018.
So this study is focused on the problems and improvement methods of the Theory of Propagation Possibility which is applied in judging the medical advertisement. The limitations and improvement will offer the standard rule to the private sector, autonomic private organization who will be in charge of preventing false or exaggerated advertisements in the newly adapted pre-review system.
The court decision on the issue of false medical advertisement using false career is reviewed in the study. Even though the court denied the medical advertisement that it does not applied to simple notice according to the theory of propagation possibility. However issues can arise in terms of disentangle false medical advertisement form formal notice or signs. At first, the fact relevance can be interpreted in many ways than one even if using the same theory. Second, the character of new media needs to be analysed in different ways compared to the old printing based media. The court made a broad or narrow interpretation of the law due to the communicability that doesn't match any other existing advertisement media. In addition, the internet based media connect information, information and media among themselves which causes unification, distortion and growth of the propagation possibility. Considering these facts, this study point out that different conclusion can be made even using the same theory.
It is necessary to keep regulations more concise and understandable in order to ensure the right to know and the freedom of occupation in the medical field while protecting the health-care system of people. Overcome the limitations and problems of the theory of propagation possibility in medical advertisement decision is essential part of successful managing for the newly adapted pre-review system. It is key element to consider for the reform of medical advertising regulation in the media era. More public-private cooperation is needed to respond to the false and illegal medical advertisement.