CONTENTS
- 1. Violation of the Medical Service Act, What Were the Detailed Circumstances?
- - Violation of the Medical Service Act, What Are the Relevant Statutes and Precedents?
- 2. Violation of the Medical Service Act, What Was the Constitutional Court's Determination?
- 3. Violation of the Medical Service Act, Daeryun's Strategy
1. Violation of the Medical Service Act, What Were the Detailed Circumstances?
A, who was suspected of violating the Medical Service Act, was a dentist.
Over a period of six months, A purchased 572 tablets of pharmaceuticals, including Propecia, a hair-loss treatment, from an online pharmaceutical retail mall.
Propecia is a prescription-only drug that can be purchased at a pharmacy only with a physician's prescription. A took some of the medication and discarded the entire remainder.
Upon learning of these facts, the head of the public health center filed an accusation with the police on a charge of violating the Medical Service Act, asserting that A had "purchased prescription drugs outside the scope of the license and treated A's own illness."
A argued that "treatment of oneself is not a 'medical act' and is therefore not subject to punishment as unlicensed medical practice," but the prosecution found that the charge was established and issued a suspension of indictment.
A filed a constitutional complaint, asserting that "the prosecutor's suspension of indictment infringed the right to equality and the right to pursue happiness."
Violation of the Medical Service Act, What Are the Relevant Statutes and Precedents?
The laws relevant to this case are set out in the 🔗Medical Service Act and the 🔗Pharmaceutical Affairs Act.
▣ Medical Service Act Article 27 (Prohibition of Unlicensed Medical Practice, etc.)
(1) No person who is not a medical practitioner may perform medical acts, and even a medical practitioner may not perform medical acts beyond the scope of the license.
▣ Pharmaceutical Affairs Act Article 50 (Sale of Drugs)
(2) A pharmacy founder may not sell prescription drugs except where preparing them in accordance with the prescription of a physician or dentist.
(3) A pharmacy founder may sell non-prescription drugs without the prescription of a physician or dentist.
The Supreme Court has not issued an explicit ruling on whether treatment of oneself constitutes unlicensed medical practice under the Medical Service Act, but a relevant determination has been made by a lower court.
The Daegu District Court held that "absent special circumstances, treatment of oneself is not subject to punishment under the Medical Service Act, and even where it exceptionally becomes subject to punishment, the determination must be made with caution." (2023 No 1448)
2. Violation of the Medical Service Act, What Was the Constitutional Court's Determination?
On the constitutional complaint filed by A, the dentist who had received a suspension of indictment for violation of the Medical Service Act, the Constitutional Court issued a decision granting the complaint by the unanimous opinion of the Justices.
The Constitutional Court explained that "in light of the purpose of punishing unlicensed medical practice, treatment of oneself cannot be punished as a violation of the Medical Service Act unless it poses a serious harm to public hygiene."
In A's case, A merely took the hair-loss treatment personally, did not act through any other person, and did not prescribe or sell it to anyone; because A discarded the remaining medication, the Court determined that A had not created any risk to public health.
The Constitutional Court ruled that "considering these points, the prosecutor issued the suspension of indictment without conducting a sufficient investigation or properly reviewing the legal principles," and that "this constitutes an arbitrary exercise of prosecutorial power, which thereby infringed A's right to equality and right to pursue happiness."
3. Violation of the Medical Service Act, Daeryun's Strategy
We analyzed the Constitutional Court's decision, which revoked a suspension of indictment that had been issued on a charge of violating the Medical Service Act, on the ground that treatment of oneself does not constitute a violation of the Medical Service Act.
A violation of the Medical Service Act or the Pharmaceutical Affairs Act may result in criminal punishment and administrative disposition, and a physician's or pharmacist's license may be suspended or revoked.
Accordingly, if you become subject to a related charge, it is advisable to accurately identify which matter has been violated and to prepare a response. In this process, you may wish to seek the advice of an attorney with substantial knowledge of and experience in medical law.
The Daeryun Law Firm LLP 🔗Medical Litigation Group includes attorneys with experience in medical litigation who assist medical practitioners from the stage of establishing negligence.
If you are facing difficulties relating to a violation of the Medical Service Act or similar matters, you are welcome to request a legal consultation at any time.
