The Supreme Court has ruled that people who are not doctors should not be punished even if they perform cosmetic tattoo procedures. Until now, such cases were punished as violations of the Medical Service Act, but the court changed its precedent to reflect advances in medical technology and shifting social perceptions of tattoos. As a result, tattooists and beauty practitioners who perform tattoo procedures can operate without fear of punishment until Oct. 2027, when the Tattooist Act takes effect.
The Supreme Court en banc panel (presiding Justice Kwon Young-jun) on the 21st unanimously overturned a lower court's ruling that fined a nonmedical worker, identified only as A, 1 million won for allegedly violating the Medical Service Act by performing a calligraphy (lettering) tattoo, and remanded the case to the Suwon District Court with instructions to acquit.
In another case, the Supreme Court en banc panel (presiding Justice Oh Seok-jun) overturned a lower court's ruling that fined a nonmedical worker, identified only as B, 1.5 million won for allegedly violating the Medical Service Act by performing a scalp tattoo, and remanded the case to the Seoul Western District Court.
With this ruling, ordinary cosmetic and calligraphy tattooing no longer constitutes unlicensed medical practice under the Medical Service Act.
A was brought to trial on charges of unlicensed medical practice for injecting dye into a tattoo machine with a needle and tattooing a customer's right arm on May 27, 2019. B was indicted on charges of unlicensed medical practice for performing scalp tattoo procedures at a hair salon B operated from January to December 2020. Both A and B were convicted in the first and second trials.
The issue on appeal was whether tattoo procedures are "medical practice" as defined by Article 27 of the Medical Service Act. In 1992, the Supreme Court deemed eyebrow tattooing to be unlicensed medical practice. This time, it found that ordinary calligraphy tattoos and cosmetic tattoos do not constitute "unlicensed medical practice" under the Medical Service Act.
The Supreme Court said, "Tattooing has been widely practiced since before the emergence of medical professionals with specialized medical knowledge," and noted that it "has developed as an independent occupation distinct from medicine and medical treatment."
It also took into account that safe tattoo machines that automatically adjust needle penetration depth are widely used, and that institutional efforts have been strengthened to prevent harm caused by tattoo dyes.
Another reason the Supreme Court changed its precedent is the social shift toward more tolerance and wider acceptance of tattoos. The court said, "Tattoos are no longer the exclusive domain of certain groups but have taken root as a culture that the general public can naturally encounter," adding, "The Medical Service Act should be interpreted in a way that maximally protects not only the freedom of expression of those who wish to perform tattooing but also the right to pursue happiness of those who wish to receive tattoo procedures."
Regarding calligraphy tattoos, the Supreme Court noted that clients deeply communicate with practitioners from the design creation and selection stages to express the social persona they seek. It said that artistic expressiveness and creativity are not qualities that medical professionals necessarily possess, and a blanket ban on nonmedical workers could infringe constitutional fundamental rights such as freedom of art.
Earlier, the National Assembly enacted the Tattooist Act in Sep. last year. Under this law, those who pass the national exam and obtain a license may perform tattooing from Oct. 29, 2027, even if they are not medical professionals.
A Supreme Court official said, "Even before the Tattooist Act takes effect, tattoo practitioners can face criminal punishment if they violate the Criminal Act or the Public Health Control Act, such as by causing injury to a customer through occupational negligence."