Regulation by the Korean government

Profit-making activities using medical practices are called “medical service.” Predominant countries in the world maintain a certain degree of statutory intervention against engagement in the medical service under relevant laws unlike any general business involving in freely transacting common goods and services. Nevertheless, Korea has been taking a firm stance to regulate the medical service unprecedented in the world rigorously.

Strict regulation on medical service

Kim Sun-Wook, esq. and Kim Young-Jun, esq.

“Healthcare” is defined as an activity among various human conducting activities aiming to cure diseases or to promote health.

In Korea, the Medical Service Act regulates medical practices among broadly scoped healthcare. Nevertheless, the Medical Service Act does not actively provide for a definition of medical practices while the act merely provides for a provision to penalize unlicensed medical practices. In this regard, an issue of which activities may constitute medical practices has been adjudicated by the Korean court based on a case by case approach. The Korean court’s interpretation of medical practices has been changed over time accordingly.

Before 1974, the Korean court had rendered its judgment finding that medical practices would be defined as professional activities related to curing diseases. As a consequence, the Korean court took its position not to view any beauty-related treatment such as a plastic surgery aims toward beauty treatment involving in, for instance, nose increase as one type of medical practices, which was considered irrelevant to curing diseases.

However, in 1974 the Korean Supreme Court rendered its judgment thereby vacating its precedents in this aspect. The Korean Supreme Court ruled that any activities creating a risk likely causing an infection or harm to human body or health during a beauty surgery although irrelevant to curing diseases should be deemed medical practices.

Accordingly, after the above Korean Supreme Court judgment in 1974 (“1974 Supreme Court Judgment”), only a licensed medical doctor is permitted to practice even a relatively simple beauty related treatment such as a plastic surgery involving in nose increase. Due to the 1974 Supreme Court Judgment, the scope of medical practices in Korea was drastically widened; that is, in addition to any activities involving in standard practices for diseases and health, any actions likely causing harm to human body or health although irrelevant to conditions would also be considered medical practices.

There were many supportive reasons behind the 1974 Supreme Court Judgment, one of which was the political leverage gradually strengthened by medical doctors by their organizing various societies and/or associations. Moreover, the Korea’s adoption of the National Health Insurance System on and around 1974 (which will be separately addressed below) may be considered one of the significant causes as well. At such time, to facilitate the smooth and timely adoption of the National Health Insurance System, the Korean Government was not able to ignore the medical doctors’ request to widen the scope.

Since the implementation of the National Health Insurance System would be carried out on the premise of a sacrifice of the medical doctor’s rights to set own prices for their medical services rendered, medical doctors raised their heavy objection against their sacrifice on medical fees. As a compromise, therefore, the Korean Government had substantial needs to police any unlicensed medical practices and at the same time to widen the scope of the medical service for a physician.

In light of the foregoing, having carefully taken into consideration the above-described situation, the Korean Supreme Court appears to have come up with a judgment holding that those activities were even irrelevant to curing diseases upon finding a risk or danger shall be practiced only by medical doctors. Consequently, the Korean court ruled for medical doctors that piercing ears for earrings or practicing tattoos due to a risk of infections although irrelevant to diseases treatment would be constituted as medical practices.

Although piercing ears have usually been practiced in a beauty shop not in a hospital in Korea as a general practice, the Korean Public Health Act prohibits a hairstylist in a beauty shop from performing piercing ears.

KIM & HYUN (SeSeung LLC). All rights reserved. Further duplication without permission is prohibited. For more information, please email to swkim@sslaw.kr (Kim Sun-wook) or yjkim@sslaw.kr (Kim Young-jun).

swkim@sslaw.kr

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