CONTENTS
- 1. Overview of the Case in Which Whether Decorative Tattooing Constitutes Unlicensed Medical Practice Became the Issue
- - The Lower Court's Determination
- 2. The Statute and Precedents Concerning the Existing Standard for Assessing Medical Practice
- - Supreme Court, Decision of May 22, 1992, 91 Do 3219
- - Supreme Court, Decision of April 27, 2004, 2004 Do 673
- 3. The Standard for Medical Practice as Determined by the Supreme Court
- - The Standard for Assessing Medical Practice
- - The Relationship Between Constitutional Fundamental Rights and This Case
- 4. The Significance of the Decision and Its Practical Impact
- - Points the Tattoo Industry Should Confirm
- - Points the Medical and Beauty Industries Should Confirm
- 5. Corporate Attorneys' Dispute Response and Legal Advisory
- - Cases Requiring Legal Review
- - Assistance from Corporate Attorneys
1. Overview of the Case in Which Whether Decorative Tattooing Constitutes Unlicensed Medical Practice Became the Issue
This case raised the question of whether decorative tattooing by a non-medical person constitutes unlicensed medical practice under the Medical Service Act.
Although the defendant was not a medical professional, the defendant was indicted on charges of performing so-called lettering tattoos by attaching a disposable needle to a tattoo machine and injecting pigment into the skin, and of receiving payment for doing so.
The prosecution took the view that the defendant's conduct constituted unlicensed medical practice prohibited under Article 27, Paragraph 1 of the Medical Service Act.
The court of first instance sentenced the defendant to a fine of 1 million won, and the lower court likewise upheld the guilty finding on the basis of existing Supreme Court precedent.
The defendant then filed a final appeal, and the case was referred to the Supreme Court sitting en banc.
The Lower Court's Determination
The Core Issues in This Case
- Issue 1. Does decorative tattooing constitute a medical practice under the Medical Service Act?
- Issue 2. Does tattooing require specialized knowledge and experience at the level of a medical professional?
- Issue 3. Should tattooing be performed only by medical professionals because of the risk of infection and adverse effects?
The lower court regarded tattooing as conduct that directly alters a person's body in the course of injecting pigment into the skin using a needle.
It also determined that, because risks such as infection or disease transmission may arise during the procedure, specialized management is required.
It further relied on the fact that existing Supreme Court precedent treated tattooing by non-medical persons as unlicensed medical practice.
Accordingly, the lower court found that the defendant's decorative tattooing constituted unlicensed medical practice under the Medical Service Act and entered a guilty verdict.
2. The Statute and Precedents Concerning the Existing Standard for Assessing Medical Practice
(1) No person who is not a medical professional may perform medical practice, and even a medical professional may not perform any medical practice other than that for which the professional is licensed.
The Medical Service Act prohibits medical practice by persons who are not medical professionals.
The statute, however, does not expressly define the concept of "medical practice."
Accordingly, whether a particular act constitutes a medical practice has ultimately been determined through the courts' interpretation.
Supreme Court, Decision of May 22, 1992, 91 Do 3219
A medical practice means not only the prevention and treatment of disease but also any act that, if not performed by a medical professional, may give rise to a hazard to public health and hygiene.
In that precedent, the Supreme Court held, in a case involving eyebrow tattooing by a non-medical person, that piercing the skin with a needle and injecting pigment carries risks such as infection and therefore constitutes a medical practice that must be performed by a medical professional.
In other words, the Supreme Court, through that decision, had previously held that eyebrow tattooing by a non-medical person constitutes unlicensed medical practice.
Supreme Court, Decision of April 27, 2004, 2004 Do 673
Ordinary decorative tattooing by a non-medical person is subject to punishment as unlicensed medical practice.
In a case involving the performance of an ordinary tattoo by a non-medical person as well, the Supreme Court held that tattooing is a medical practice that, if not performed by a medical professional, may give rise to a hazard to public health and hygiene.
Accordingly, the Supreme Court previously held, through that decision, that ordinary tattooing constitutes unlicensed medical practice.
3. The Standard for Medical Practice as Determined by the Supreme Court
To determine whether decorative tattooing performed by a non-medical person constitutes unlicensed medical practice prohibited under the Medical Service Act, the Supreme Court newly examined the concept and scope of medical practice.
On the ground that tattooing creates a wound in the skin and carries a risk of infection, the lower court applied existing Supreme Court precedent, found that it constituted unlicensed medical practice, and entered a guilty verdict.
The Supreme Court, however, determined that the primary purpose of decorative tattooing lies not in the prevention or treatment of disease but in artistic and decorative expression, and that it is difficult to conclude that the procedure necessarily requires expertise at the level of a medical professional.
It also held that the advancement of the medical environment and hygiene technology, changes in social perceptions of tattoos, and constitutional fundamental rights such as freedom of expression and the right to pursue happiness must be considered together.
In the end, the Supreme Court determined that ordinary decorative tattooing does not constitute unlicensed medical practice, modified existing precedent, and reversed the lower court's guilty verdict.
The Standard for Assessing Medical Practice
In this en banc decision, the Supreme Court summarized medical practice as follows.
It also stated that whether something constitutes a medical practice must be assessed by comprehensively considering the following factors.
The Relationship Between Constitutional Fundamental Rights and This Case
Article 27 of the Medical Service Act is originally a provision that permits medical practice only to medical professionals in order to protect the health and lives of the public.
Yet the moment a given act is interpreted as a medical practice, that act effectively becomes one that only a medical professional may perform.
Accordingly, the position of this en banc panel is that, in determining whether to regard a particular act as a medical practice, one must consider not only the public interest in protecting public health but also the issue of restricting the fundamental rights of those who wish to perform or make use of that act.
The Supreme Court held that, in determining whether tattooing is a medical practice, the freedom to choose one's occupation, the right to pursue happiness, freedom of expression, freedom of the arts, and freedom of religion of both the tattooist and the person receiving the tattoo must be considered together.
In other words, it determined that, where the need to grant medical professionals an exclusive right to perform tattooing is not clear, the Medical Service Act must be interpreted in a manner that guarantees these fundamental rights to the greatest extent possible.
4. The Significance of the Decision and Its Practical Impact
This decision is highly significant in that it no longer treats ordinary decorative tattooing as a medical practice, thereby changing the legal standard for tattoos that had been maintained for over twenty years.
As a result, the tattoo industry is expected to be largely freed from the risk of criminal punishment for violations of the Medical Service Act.
That said, the issues of safety management, hygiene management, and consumer protection arising during the tattooing process have not all been resolved, so a review of the relevant statutes and regulations remains necessary.
In particular, with a tattooist act on the horizon, the relevant business operators need to prepare for the new institutional changes.
Points the Tattoo Industry Should Confirm
This decision is significant in that it no longer treats ordinary decorative tattooing as a medical practice while broadly considering the tattooist's freedom to choose an occupation and the user's freedom of expression, right to pursue happiness, and the like.
Accordingly, it is expected to have an important impact on the future institutionalization of the tattoo industry and on the process of implementing a tattooist act.
It should be kept in mind, however, that the Supreme Court did not deny the regulation of the tattoo business itself.
Rather, it may be understood as having recognized the lawfulness of tattooing on the premise of a hygiene and safety management system.
In other words, because licensing, education, and hygiene management obligations are likely to be specified under a tattooist act scheduled to take effect in the future, preparation for this is necessary.
Points the Medical and Beauty Industries Should Confirm
The greatest significance of this decision lies in the redefinition of the concept of medical practice.
Going forward, with respect to services in the borderline area between medical and non-medical fields, such as skin aesthetics, semi-permanent makeup, and beauty technology, there is a possibility that the "need for specialized medical knowledge" and the "likelihood of a hazard arising and its manageability" will serve as important standards of assessment.
Accordingly, the relevant business operators and practitioners need to comprehensively examine not merely the name of a procedure but the expertise, risk, and regulatory framework required for that act.
In particular, in areas where whether something constitutes a medical practice may be at issue, it is important to obtain legal advice in advance and check the possibility of a regulatory violation.
5. Corporate Attorneys' Dispute Response and Legal Advisory
This decision is highly significant in that it is an en banc decision that newly organized the concept and scope of medical practice.
In particular, in that it modified prior precedent while actively considering social change, technological advancement, and the guarantee of citizens' fundamental rights, it may have an impact on a variety of future disputes in the medical and beauty fields.
That said, matters such as tattooing for medical purposes, high-risk procedures, infection incidents, hygiene management violations, and damages disputes may still require separate legal review.
Cases Requiring Legal Review
Situation | Legal Review Required |
When a criminal complaint is filed or an investigation is conducted over tattooing | Review of whether the Medical Service Act has been violated and of criminal liability |
When adverse effects such as infection or scarring arise after the procedure | Review of liability for damages and of whether there was negligence |
When opening or operating a tattoo establishment | Review of business-related regulations and hygiene management standards |
When an administrative agency conducts an enforcement action or a complaint is filed | Response to administrative dispositions and review of legal risk |
When a tattoo-related contract or refund dispute arises | Review of the contractual relationship and resolution of the consumer dispute |
When preparation is needed for the future implementation of a tattooist act | Review of obligations regarding qualifications, education, and hygiene management |
In the above matters, there is a need to comprehensively review not merely whether the tattooist is liable but also the scope of medical practice, the role of the medical-professional licensing system, and the balance between protecting the public's right to health and freedom of occupation.
In particular, now that this decision has newly established the concept and standard for assessing medical practice under the Medical Service Act, it has become important for medical institutions and medical professionals as well to conduct legal review on how to set the boundary between the area of non-medical procedures and the medical area going forward.
In addition, because discussions on the role of the medical community and the scope of regulation are likely to continue in the course of implementing a tattooist act and reorganizing the related institutions, ongoing monitoring of changes in the relevant statutes and policies is necessary.
Accordingly, medical institutions and medical professionals would do well to closely examine the impact that the changed legal environment will have on medical practice on the ground and, where necessary, to develop a response through the advice of a corporate attorney.
Assistance from Corporate Attorneys
▶ Reviewing the legal risks that may arise in the course of a medical institution's business operations and the introduction of new services, based on the standard for assessing medical practice as changed following the tattoo decision
▶ Analyzing the impact of the implementation of a tattooist act and related institutional changes on medical institutions, medical professionals, and the medical industry as a whole, and establishing response strategies
▶ Reviewing changes in the regulatory environment relating to the medical-professional licensing system and providing legal advisory to protect the interests of the medical community
▶ Developing responses to changes in the policies and administrative regulations of relevant agencies, such as the Ministry of Health and Welfare and local governments, and supporting the submission of opinions
▶ Conducting legal review of, and handling litigation concerning, amendments to the Medical Service Act, disputes over the scope of practice between professions, and disputes related to unlicensed medical practice
▶ Providing comprehensive advisory on issues relating to Medical Service Act violations, administrative dispositions, and constitutional fundamental rights that may arise in the course of operating a medical institution
▶ Diagnosing legal risks regarding the scope of medical practice and regulatory changes for medical associations, organizations, and companies, and supporting the establishment of compliance systems
Tattoo-related matters require the joint review of various legal relationships, including criminal liability, liability for damages, public-hygiene regulations, and the possibility of administrative dispositions.
In particular, where adverse effects such as infection, scarring, or pigmentation arise during the procedure, the scope of liability may vary depending on whether the tattooist was negligent, whether hygiene management obligations were fulfilled, and whether the duty to explain was breached, so careful legal review is important.
Daeryun, the ninth-largest law firm in the Republic of Korea (based on 2025 value-added tax filings with the National Tax Service), provides comprehensive legal services for tattoo-related Medical Service Act disputes, claims for damages arising from procedure-related adverse effects, responses to criminal complaints, and legal matters relating to the operation of tattoo establishments.
If you need a legal review of a dispute arising during a tattooing procedure or relating to the operation of your establishment, you are welcome to review your response through a 🔗corporate attorney legal consultation reservation.
