침구사 제도의 시행! 직업 선택의 자유! 진료선택권 보장!
국민건강 챙기고, 일자리 만들고, 침뜸한류 일으키고 ...
차 례
자료집 발행 취지 ·················································· 3
침구주권 헌법소원 배경/ 과정과 경과/ 공동청구인 ···················· 13
배경: 무시와 배제와 차별의 역사가 끝나길 바라며 ·················· 15
침뜸제도 관련 주요 역사 ··········································· 17
침구인에 대한 무시와 배제와 차별의 현대사 ·························· 18
2000년대 침구제도 관련 움직임 ···································· 20
침구한류 개척해 널리 인류를 이롭게! ································ 22
침구주권 헌법소원까지의 과정과 경과 ····························· 24
“침뜸교육은 평생교육의 대상” 대법원 판결 ··························· 24
한의사협회, 침뜸교육 금지를 위해 입법부 로비 ······················· 24
전직경찰 프락치로 고용해 침뜸단체 사찰 ····························· 26
뜸사랑에 대한 사찰과 고발 그리고 재판 ······························ 26
허임기념사업회와 모듬살이에 대한 사찰·고발·재판 그리고 헌법소원 ···· 27
홍성뜸방의 무죄판결 ·············································· 29
침구주권 헌법소원 2000여명 공동 청구 ····························· 306
침구주권 헌법소원 공동청구인 ··································· 33
침구인 명단 ······················································ 33
침구소비자 명단 ·················································· 38
2019헌바239 헌법소원 심판청구서(2019.7.10)
… 대리인 : 법무법인 향법 담당변호사 이재화 외
1. 사건의 개요 46 ················································· 49
가. 청구인들의 지위 ···················································· 49
나. 재판의 전제성 ······················································ 49
다. 당해사건에서의 위헌법률심판제청 및 기각결정, 청구기간의 준수 ········· 50
2. 심판대상 법률조항에 대한 헌법재판소
2010.7.29결정 이후의 변화 ···································· 51
3. 심판대상조항의 위헌성 ········································· 52
가. 죄형법정주의의 명확성 원칙 위반 ····································· 52
1) 관련 법리 ····················································· 52
2) 이 사건 심판대상조항의 불명확성 ································ 53
3) 범죄 구성요건을 법률이 아닌 시행령에 위임하는 죄형법정주의 위반 · 58
나. 과잉금지의 원칙 위배 ················································ 58
1) 제한되는 기본권 : 비의료인 직업선택 자유·행복추구권, 의료소비자
건강권·의료행위 선택권 ········································ 58
2) 과잉금지의 원칙 위반 여부 ······································ 60
다. 위헌 여부에 대한 결정을 함에 있어서 고려할 사항 ······················· 63
1) 침뜸은 민족의 공동자산이라는 점 ································ 63
2) 한의사의 침구독점은 부당하였다는 점 ···························· 63
3) 전통침구인이 무시 배제되고, 제도적 차별과 인권침해 받는다는 점 ··· 65
4) 의료인 외에도 침구 널리 활용하도록 하는 것이 세계 보편이라는 점 ·· 66
5) 한국인 침구사들이 해외에서는 널리 인정받고 있다는 점 ············ 67
6) 한의사의 침구 독점은 국민 대다수의 이익에 반한다는 점 ············ 69
7) 한의사 침구독점으로 국가적 침구술 경쟁력이 퇴보하고 있다는 점 ··· 70
8) 침뜸은 의료유사업자 행위로 간호조무사나 안마사에 준하는 위상이라는 점 ········ 71
9) 의료유사행위 관련 입법 동향 ···································· 72
10) 무료 침뜸 봉사활동을 처벌하는 것이 부당하다는 점 ··············· 74
11) 헌법 제9조의 취지에도 반한다는 점 ····························· 75
4. 결 론 ·························································· 76
증거자료 ························································ 78
첨부서류 ························································ 79
2019헌마1435 헌법소원 심판청구서(2019.12.26.) ····················
… 대리인 : 법무법인 현 담당변호사 김승대 외
Ⅰ. 사건의 개요 ·················································· 87
Ⅱ. 적법요건의 구비 ·············································· 888
1. 헌법소원 대상성 충족 ··········································· 88
2. 권리침해 관련성의 구비 ········································· 88
가. 권리침해의 자기관련성 ·············································· 88
나. 권리침해의 현재성 ·················································· 89
다. 권리침해의 직접성 ·················································· 90
3. 보충성 원칙의 충족 ············································· 91
4. 청구기간의 준수 ················································ 91
Ⅲ. 본안에 관한 의견 ············································· 94
1. 세계 각국의 침구치료사 제도 ····································· 94
가. 독일 ······························································· 94
나. 스위스 ····························································· 97
다. 미국 ······························································· 98
라. 영국 ······························································· 98
마. 일본 ······························································· 99
바. 프랑스와 퀘벡 ·····················································100
사. 중국 ······························································101
아. 세계 각국 침구사 제도로부터의 시사점 ·······························102
2. 침구종주국(鍼灸宗主國)인 우리나라의 침구제도의 역사적 현실······104
가. 세계 최초의 침구술 발원지 ··········································104
나. 조선 초기의 침구의(鍼灸醫)제도의 정립과 법제화 ······················105
다. 17세기 조선 침구학의 독보적 발전 ···································107
라. 일제강점기와 해방 및 군사정부의 침구사 제도 말살 탄압 ················107
3. 헌법재판소의 선 결정례와 이에 대한 사정 변경 ····················109
가. 헌법재판소 선결정례의 요지111 ·····································109
나. 헌법재판소 결정 이후의 사정변경 ····································112
4. 심판대상 조항들의 기본권 침해 내용 ·····························123
가. 의료행위 선택권과 치료의 자유의 침해 ·······························123
나. 직업선택의 자유의 침해 ·············································128
다. 평등권의 침해 ·····················································132
라. 명확성 원칙의 위배 ·················································138
마. 적법절차 원칙의 위배 ···············································141
바. 국민보건과 고령자 보호에 대한 국가의무의 위배 ·······················143
Ⅳ. 결 론 ························································ 147
보건복지부 의견서(2019헌바239, 2019헌마1435 관련) ············ 149
청구원인 보충의견서 1차(2020.4.2) - 보건복지부의 의견서에 대한 반론
1. 의료행위 선택권의 침해에 대하여 ································177
2. 직업선택의 자유 침해에 대하여 ··································184
3. 평등권 침해에 대하여 ··········································187
4. 명확성 원칙의 위배에 대하여 ····································189
5. 적법절차 원칙의 위배에 대하여 ··································192
6. 보건복지부가 주장한 참고의견에 대하여 ··························192
7. 맺음말 ························································196
참고 자료 ······················································ 19810
청구원인 보충의견서 2차(2020.11.19) 2019헌마1435 ·············· 201
코로나시대 침뜸활용 국제동향과 침구사의 역할 -
첨부자료 ························································204
한의사협회의 의견서(2019헌바239, 2019헌마1435 관련) ·········· 205
청구원인 보충의견서 3차(2021.1.25.) - 한의사협회의 의견서에 대한 반론
Ⅰ. 심판청구 요건의 구비
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