The Korean Supreme Court, in an en banc ruling, held that tattooing performed by non-medical professionals is not an unlicensed medical practice. The Court overturned prior Supreme Court precedents that deemed tattooing an unlicensed medical practice. The Supreme Court of Korea ruled in May 1992 that eyebrow tattooing was an unlicensed medical practice (91do3219). The Supreme Court of Korea ruled in April 2004 (2004do673) that ordinary calligraphy tattooing constitutes a medical act and is punishable as an unlicensed medical act.
Facts
- Mr. A was indicted on charges of performing unlicensed medical acts by performing scalp tattooing procedures at a beauty salon. The first and appellate courts sentenced Mr. A to a fine of 1.5 million won.
- Mr. B was indicted on charges of performing an unlicensed medical act by performing a lettering tattoo in May 2019, despite not being a medical professional. The first and appellate courts sentenced Mr. B to a fine of 1 million won.
Issue
Whether cosmetic and “calligraphy” tattooing constitutes “unlicensed medical practice” prohibited under Article 27, Paragraph 1 of the former Korean Medical Act.
Korean Supreme Court Judgment on Tattoo Unlicensed Medical Practice Case
The Supreme Court of Korea held:
“Whether an act constitutes a ‘medical act’ must be determined reasonably by comprehensively considering the content and extent of medical expertise required regarding the purpose, means, and circumstances of the act; the degree of risk of harm to public health and hygiene and its manageability; the development of medical technology and changes in the medical environment; the level and extent of general societal knowledge regarding public health and hygiene; the perceptions and demands of consumers of medical services; and the social evaluation of the act. In light of the legal principles regarding the concept and criteria for judging medical acts, it is reasonable to view ordinary cosmetic and calligraphy tattooing performed by non-medical personnel as not constituting “unlicensed medical practice” under Article 27, Paragraph 1 of the former Medical Act.
The Court opined that “tattooing has been widely practiced since long before the emergence of medical professionals equipped with specialized medical knowledge, and it has developed into an independent profession distinct from medicine and medical practice. Tattooing is a field that requires aesthetic knowledge, skills, and experience related to tattooing, but it does not necessarily require medical expertise and experience equivalent to that of a medical professional. Tattoo machines with improved safety features, such as automatic needle penetration depth control, are widely used, the use of hygiene products has become standardized, and institutional efforts to prevent health and hygiene hazards caused by tattoo dyes have been significantly strengthened.”
The Court specifically noted that prohibiting tattooing only to medical professionals may infringe on “fundamental rights,” including the right to personality under Article 10 of the Korean Constitution and the right to pursue happiness through the free expression of personality.
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