Re-enactment of the ‘Tattoo Judicial Act’, crossroads in allowing unlicensed practice

The so-called ‘Tattoo Justice Act’, which legalizes tattoo procedures by non-medical personnel, was once again proposed to the National Assembly last month. There have been several movements to legalize tattoos, but each time they have failed to pass the National Assembly threshold. However, with the re-enactment of the ‘Tattoo Criminal Act’, attention is focused on whether to allow unlicensed procedures.

Currently, non-medical tattoo procedures are illegal. This is because the Supreme Court defined tattooing as a medical practice in 1992, and its impact has continued to this day. At the time, the Supreme Court considered tattooing to be an activity that could pose health and hygiene risks if not performed by a medical professional. Accordingly, tattooing by an unlicensed tattoo operator constitutes a violation of Article 27, Paragraph 1 of the Medical Service Act (imprisonment for not more than 5 years or a fine of not more than 50 million won) and Article 5, Paragraph 1 of the Special Measures Act on the Control of Health Crimes (imprisonment for life or more than 2 years, a fine of not less than 1 million won but not more than 10 million won).

However, as the demand for cosmetic procedures such as eyebrow tattooing has recently increased, it has been pointed out that there is a large gap between the law and reality. Looking at the Ministry of Health and Welfare's '2023 Survey Results Report on the Status of Tattoo Users', it was found that more than half of the people who have received tattoos or semi-permanent makeup responded that 'non-medical personnel should be allowed to perform tattoo procedures.'

As social discussions surrounding the legalization of tattoo procedures continue, a public participation trial was held in this regard last May. The Daegu District Court sentenced tattoo artist A (24), who was put on trial on charges of performing eyebrow tattooing on a customer despite not being qualified as a medical professional, to one year in prison, two years of probation, and a fine of 1 million won.

At the time, the jury consisted of seven members of the general public, four of whom voted guilty and the remaining three voted not guilty. The jury and court sided with the prosecution's argument that eyebrow tattooing was a ‘medical practice.’

However, in some lower courts, there were verdicts of not guilty that went against existing Supreme Court precedents. The Eastern Branch of the Busan District Court found not guilty a woman in her 20s who was indicted on charges of performing semi-permanent makeup without a medical license in December last year. At the time, the court ruled, "A whopping 30 years have passed since the Supreme Court's mainstream ruling on eyebrow surgery. As of 2018, the cumulative number of people who have experienced semi-permanent makeup is 10 million. In particular, 'eyebrow tattooing' has become common regardless of age and gender," and ruled, "Illegalization actually promotes illegality and danger and threatens the public's health." Even before this, in the Cheongju District Court in 2022, both the first and second trials found the director of a beauty academy who performed eyebrow tattooing not guilty.

In the end, confusion is expected to continue for some time as conflicting rulings have emerged within the legal community regarding allowing unlicensed procedures. In particular, as the Supreme Court is currently conducting an en banc hearing on another tattoo case, it remains to be seen whether a decision will be made that will overturn the existing precedent. However, as the tattoo operator's practice was recently found guilty through a public participation trial, caution is still needed regarding unlicensed tattoo practice. For this reason, if you are in a situation where related charges have been applied, it can be said that the best alternative is to get help from an expert.

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