Article 17(1) of the former Medical Service Act provides that a doctor, etc. who directly conducted a medical examination of a patient shall prepare and issue a prescription in his/her own name; where a doctor who did not directly examine a patient prepares and issues a prescription in his/her own name; or where a doctor who directly conducted a medical examination of a patient prepares and issues a prescription in another person’s name, it is difficult to deem that a doctor who directly conducted a medical examination of a patient violates the above provision as the nominal owner of a prescription regardless of his/her own intention, rather than the doctor who prepared and issued a prescription; however, it can be deemed that a doctor, as the nominal owner of a prescription, was in violation of Article 17(1) of the former Medical Service Act, even if the doctor, etc. who prepared and issued a prescription in his/her own name, was aware of the fact that the prescription was prepared and issued in his/her own name, and thus, it cannot be deemed that the above provision violated Article 17(1) of the former Medical Service Act merely because the doctor did not have any duty to manage the medical person’s affiliated with the medical institution’s license issued the same.

2. The costs of the lawsuit are assessed against the defendant.

A. The Plaintiff is a doctor who establishes and operates ○○○○○ Council member (hereinafter “instant Council member”) in Gangdong-gu Seoul ( Address omitted).

B. On July 13, 2016, the Defendant issued one month (hereinafter “instant disposition”) of the suspension of qualification for doctor’s license on the ground that “the Plaintiff, based on Articles 17(1) and 66(1)10 of the former Medical Service Act (amended by Act No. 1367, Jun. 22, 2015; hereinafter the same) issued a prescription to Nonparty 1 and Nonparty 2, who was not himself/herself, in the instant member’s medical examination and treatment of patients, in the name of the Plaintiff (hereinafter “instant disposition”).

C. The Plaintiff dissatisfied with the instant disposition and filed an administrative appeal with the Central Administrative Appeals Commission on September 20, 2016, but the Central Administrative Appeals Commission dismissed the Plaintiff’s appeal on September 18, 2018.

[Reasons for Recognition] Uncontentious Facts, Gap evidence 1 to 3, Eul evidence 5, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the parties' assertion

1) Plaintiff

A) Articles 17(1) and 66(1) of the former Medical Service Act apply to cases where there is a cause attributable to the intention or responsibility for the act of violation committed against a medical doctor. The Plaintiff does not have any impliedly or knowingly instructed the issuance of a prescription in his/her own name, and it is difficult to deem that there is a cause attributable to the Plaintiff to make the instant disposition. Accordingly, there is no reason for the instant disposition.

B) In light of the fact that both the Plaintiff, the Nonparty 1, and Nonparty 2 were subject to a non-prosecution disposition regarding the charge of violating the Medical Service Act, and the instant disposition prevents patients from receiving medical treatment, and the Plaintiff became aware of the risk of revocation of license due to cumulative suspension of qualification, thereby causing significant damage, the instant disposition is erroneous in the misapprehension of discretionary authority.

2) Defendant

The Plaintiff, even if he did not directly examine patients on February 22, 2015, prepared and issued a prescription under the Plaintiff’s name, and thus, there is clear reason for disposition. In addition, a sanction imposed on a violation of administrative laws is imposed based on the objective fact that is the violation of administrative laws and regulations in order to achieve administrative purposes, and thus, a sanction is imposed, barring special circumstances, such as where there is a justifiable reason not to cause a breach of duties, it may be imposed even on the violator, barring any intention or negligence. The Plaintiff was negligent in managing the name of prescription issued by a person who is responsible for overall management and management of the instant council members, and thus, cannot be deemed to have any justifiable reason not to cause any negligence to the Plaintiff.

(b) Major relevant statutes;

본문내 포함된 표 ▣ 구 의료법(2015. 6. 22. 법률 제13367호로 개정되기 전의 것) 제17조(진단서 등) ① 의료업에 종사하고 직접 진찰하거나 검안한 의사(이하 이 항에서는 검안서에 한하여 검시업무를 담당하는 국가기관에 종사하는 의사를 포함한다), 치과의사, 한의사가 아니면 진단서·검안서·증명서 또는 처방전[의사나 치과의사가「전자서명법」에 따른 전자서명이 기재된 전자문서 형태로 작성한 처방전(이하 “전자처방전”이라 한다)을 포함한다. 이하 같다]을 작성하여 환자(환자가 사망한 경우에는 배우자, 직계존비속 또는 배우자의 직계존속을 말한다) 또는「형사소송법」제222조 제1항에 따라 검시를 하는 지방검찰청 검사(검안서에 한한다)에게 교부하거나 발송(전자처방전에 한한다)하지 못한다. 다만 진료 중이던 환자가 최종 진료 시부터 48시간 이내에 사망한 경우에는 다시 진료하지 아니하더라도 진단서나 증명서를 내줄 수 있으며, 환자 또는 사망자를 직접 진찰하거나 검안한 의사·치과의사 또는 한의사가 부득이한 사유로 진단서·검안서 또는 증명서를 내줄 수 없으면 같은 의료기관에 종사하는 다른 의사·치과의사 또는 한의사가 환자의 진료기록부 등에 따라 내줄 수 있다. 제66조(자격정지 등) ① 보건복지부장관은 의료인이 다음 각호의 어느 하나에 해당하면 1년의 범위에서 면허자격을 정지시킬 수 있다. 이 경우 의료기술과 관련한 판단이 필요한 사항에 관하여는 관계 전문가의 의견을 들어 결정할 수 있다. 10. 그 밖에 이 법 또는 이 법에 따른 명령을 위반한 때

C. Facts of recognition

1) The Plaintiff used leave on February 22, 2015 during the annual vacation period of the Gu administration, and Nonparty 2, who became aware of in the job offer website through a nurse, decided to view the Plaintiff’s medical treatment on behalf of the Plaintiff.

2) On February 22, 2015, the Plaintiff did not work at the instant Council member, and Nonparty 1 and Nonparty 2, a vice president of the instant Council member, were working at the instant Council member on the same day, and issued a medical examination and prescription for the patients. At the time, the prescription prepared by Nonparty 1 and Nonparty 2 and issued to the patients was indicated as the Plaintiff.

3) The instant member is to issue prescriptions using the “Neop Program” and, if so, may issue prescriptions in the name of his own will using the existing ID. The instant member’s nurses of the instant member will damage the route of the said program, or the doctor will directly act on behalf of his own.

4) In the absence of existing IDs, new ID, name, resident registration number, and serial number to be used in the “user information” of “establishment of hospital information” on the computer screen in the status of existing IDs may be used immediately after entering the new ID, name, resident registration number, and serial number.

5) While operating the instant member, the Plaintiff used more than 60 medical doctors in the name of Nonparty 2, and at the time, a prescription was issued in the name of each of the relevant experts. Nonparty 1, who was the physician of the instant member, was directly treated before February 22, 2015, and issued a prescription in his name, and did not have been issued in the name of the Plaintiff.

6) On June 29, 2015, the prosecutor of the Seoul Eastern District Prosecutors’ Office: (a) ordered the Plaintiff to issue a prescription in the name of the Plaintiff on the charge that “the Plaintiff, even if he did not directly examine the patients on February 22, 2015, entered the name of the medical person in the original prescription as the Plaintiff and issued the medical person.” (b) it is difficult to deem that the Plaintiff instructed Nonparty 1 and Nonparty 2 to issue the prescription in the name of the Plaintiff; (c) considering the fact that Nonparty 2 did not have any economic interest that the Plaintiff obtained by issuing the prescription in the name of the Plaintiff, Nonparty 2 rejected the Plaintiff’s assertion and issued the prescription on the ground that there is insufficient evidence to acknowledge the suspected crime; and (d) Nonparty 1 and Nonparty 2 issued the doctor Nonparty 2 with the name of the medical person outside the prescription issued to the patients on February 22, 2015 on the ground that there is no evidence to prove that there was no evidence to prove that “the Plaintiff’s prescription was issued” under the name of the Plaintiff.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 4 through 6, 7, the purport of the whole pleadings

D. Whether Article 17(1) of the former Medical Service Act is violated

1) The main text of Article 17(1) of the former Medical Service Act provides that a doctor, etc. who directly conducted a medical examination of a patient shall prepare and issue a prescription under his/her own name. Even if a doctor who did not directly examine a patient prepares and issues a prescription under another person’s name, or a doctor who directly conducted a medical examination of a patient is also in violation of the said provision. However, in cases where a doctor who directly conducted a medical examination of a patient prepares and issues a prescription under another person’s name and enters the prescription in the name of another person as the nominal owner of a prescription irrespective of his/her own intention, it is difficult to deem that such violation of the said provision was committed. However, in cases where the nominal owner of a prescription can be assessed as the same as the act of a doctor who prepared and issued a prescription under an exceptional circumstance

2) In full view of the following circumstances revealed from the content of relevant provisions, the above-mentioned facts, the descriptions of evidence Nos. 4 and 5, and the purport of the entire pleadings, the doctor Nonparty 1 and Nonparty 2, when the Plaintiff is absent due to leave, voluntarily prepared and issued a prescription in the name of the Plaintiff without the Plaintiff’s consent, and the Plaintiff could have neglected management as an operator of the instant member, but it cannot be said that the Plaintiff violated Article 17(1) of the former Medical Service Act.

A) Article 17(1) of the former Medical Service Act that requires a doctor, etc. who directly conducted a medical examination of a patient to prepare and issue a prescription in his/her own name provides for an individual with the obligation to manage the medical person belonging to a medical institution. It is apparent in the language and text that the medical person does not have any provision stipulating the obligation to manage the medical person belonging to a medical institution. If the medical person is to directly examine the patient and prepare and issue a prescription in his/her own name is naturally well-founded, and the liability for whether a prescription has been prepared and issued

B) The final management authority over the NAF program used by the instant member is against the Plaintiff, and the Plaintiff’s negligence appears to have created new IDs so that the nurses of the instant member can immediately use the program. However, as seen earlier, whether the name of the prescription is anyone is in the name of the doctor who issued the relevant prescription is the responsibility. Nonparty 2 did not confirm the name of the prescription or demand the nurse to take any measure.

C) The Defendant asserted to the effect that the Plaintiff was not registered even when Nonparty 2 received a request for registration to issue a prescription in the name of Nonparty 2, and that the Plaintiff did not receive such request from Nonparty 2. Even if the Plaintiff received such request, Nonparty 2, under the program system, appears to have sufficient support for the nurse even if the name of the prescription can be changed without the Plaintiff’s aid and the program is not familiar with the Plaintiff’s aid. In light of the fact that, even if Nonparty 2 used Nonparty 2’s intention before Nonparty 2, it is deemed that the prescription was issued in the normal name, and there was no reason for the Plaintiff not to transfer the prescription name only to Nonparty 2, and that Nonparty 2 issued a prescription in the name of the Plaintiff, it is difficult to deem that the Plaintiff allowed the Plaintiff to issue a prescription under its own name or impliedly accepted it.

D) On February 22, 2015, there is no circumstance to deem that the Plaintiff did not work in the instant member, and was involved in the preparation and issuance of prescriptions. Nonparty 1 issued a prescription under his/her name, and only on this day, there is no reason to issue a prescription under the Plaintiff’s name.

E) The disposition suspending qualification for a medical doctor’s license under Article 66(1) of the former Medical Service Act is an administrative sanction against the violation of Article 64(1), which is an administrative sanction against “medical institution,” such as the suspension of medical service, revocation of permission for establishment, closure of a medical institution, or a penalty surcharge under Article 67(1), and the Plaintiff cannot be held liable for violation of Article 17(1) of the former Medical Service Act solely on the ground that the Plaintiff neglected the management of the NAF program or the NAF program under the name of another person as the head of the hospital of the instant member.

E. Sub-decision

Since the grounds for the instant disposition are not recognized to the Plaintiff, the instant disposition is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Hong Pung-chul (Presiding Judge)