The License-Revocation Provision of the Amended Medical Service Act: Its Constitutional Issues and Challenges

Demanding high ethical standards of medical personnel who handle human life is a consensus of our times. In the past, restrictions on medical licenses were mainly limited to medically related crimes. However, the amended Medical Service Act, which took effect on November 20, 2023, completely overturned this paradigm. Before the amendment, the crimes constituting grounds for disqualification were limited to medically related crimes—such as violations of the Medical Service Act and medical-related statutes and certain related crimes under the Criminal Act—but after the amendment, regardless of the type of crime, being sentenced to imprisonment or heavier, a suspended sentence, or a suspension of the imposition of sentence can result in license revocation for the respective disqualification period. In other words, it has become a structure in which even everyday negligence outside the medical field can take away one's professional life.

The greatest legal contradiction is the lack of the "principle of clarity." The amended law specified the point at which grounds for disqualification are established as "after the suspension period has passed." However, in actual administrative practice, the statute is being arbitrarily and expansively interpreted, with license-revocation dispositions being issued even at a point when the suspension period has not yet elapsed. Because of this, medical personnel, as the subjects of the norm, cannot even predict at what point their license will be revoked. This seriously undermines legal stability, the foundation of a state governed by the rule of law.

The excessive infringement of "freedom to perform one's occupation" is also an essential unconstitutional element. Crimes committed within medical treatment, directly connected to patient safety, and conflicts in the private sphere are of different legal dimensions. Even if the legislative purpose is legitimate, linking all crimes unrelated to medical treatment to license revocation constitutes a violation of the "principle against excessive restriction." Uniformly stripping qualifications without an individual review of the specific circumstances or the risk of recidivism is an action that has lost the balance of legal interests.

The conflict with the "principle of separation of powers" also cannot be overlooked. Even if the judiciary shows leniency with a suspended sentence after examining the circumstances of the case, the administrative agency mechanically revokes the license based solely on the outward form of the penalty. In particular, an administrative agency revoking a license in a case where the court, judging the risk of recidivism to be low, did not even issue an "employment-restriction order" is a result in which the logic of sanctions is reversed. This is a structural contradiction that neutralizes the judiciary's flexible sentencing intent with administrative rigidity.

The "principle of equality" logic, which invokes fairness with other professions, also overlooks the particularity of the occupational field. The duty structure of medical personnel, confined to the highly specialized area of health and medicine, is fundamentally different from that of occupational fields such as attorneys, who handle the law as a whole. Emphasizing only mechanical fairness with other occupations while ignoring the essential differences of the occupational field runs counter to the purpose of the right to equality, which presupposes reasonable differentiation.

The law must be both a bulwark that protects social trust and a shield that protects individuals' fundamental rights. The "strict ethics" emphasized by the amended Medical Service Act is important, but the infringement of fundamental rights and the legal contradictions arising in that process are problems that cannot be overlooked. For reasonable application of the law that reflects the particularity of the medical field, it is now time for a judgment by the Constitutional Court and in-depth social discussion.

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