Housing Daegu

Reference domicile Daegu

2. Gaim ○○ (79-1) and self-employed

Housing Daegu

Reference domicile Daegu

3. The △△△△ (64-1) and emergency medical technicians;

Residential Dong-si

Seoul basic domicile

Attorney Soh-ju (for the defendant Kim ○-○)

Attorney Park Jong-ju (the Kukkiwon for Defendant Kim △△△)

(a) A prosecutor;

(1) Judgment of mistake of facts (not guilty part)

The judgment of the court below which judged that the act of furnion is itself a medical treatment act that only a doctor can do, and that the act of furnion is regarded as a medical treatment assistance and acquitted this part of the facts charged

(2) Unreasonable sentencing

The sentence of the lower court (Defendant Park ○○: Imprisonment with prison labor for one year, two years of suspended execution, and 160 hours of community service order) is too unhued and unreasonable.

B. Defendant Park ○○

(1) Error of facts and misapprehension of legal principles (as to the joint criminal conduct with Defendant Kim○○), Defendant Kim○ does not have any fact that Defendant Kim○, as indicated in the facts charged, had Defendant Kim○ directly inserted cement or stetegrative lease units for surgery into the patient’s body, and Defendant Kim○ merely engaged in an act of injecting or stegrating cement cement for surgery into metal pipes according to the direction and supervision of Defendant Park○○○. Cement for surgery constitutes an act of medical assistance.

(2) Unreasonable sentencing

The sentence of the lower court (one year of imprisonment, two years of suspended execution, and one hundred and sixty hours of community service order) is too unreasonable.

C. Defendant Kim 00

(1) misunderstanding of facts and misunderstanding of legal principles (as to the part of the co-principal committed with the defendant Park Jong-○)

Although each act of violation of the Medical Service Act is in a substantive concurrent relationship, the facts charged by each act are not clearly specified, and thus, the prosecution against Defendant Kim○-○ ought to be dismissed. Defendant Kim○-○ does not directly inserting the body of the patient of the patient, such as the facts charged. Even if Defendant Kim○-○ performed an act of inserting cement or stephre lease, this act as a medical assistance act, which is permissible or a medical doctor’s act under the direction of Defendant Park○-○, would be justified.

(2) Unreasonable sentencing

The sentence of the lower court (one year of imprisonment, one year of suspended execution, and 40 hours of community service order) is too unreasonable.

2. Judgment on the prosecutor's assertion of mistake of facts

The lower court, based on the circumstances indicated in its reasoning, based on the direction of Defendant Kim △△△ in accordance with Defendant Park 00.

Since Defendant Kim △△△, an assistant nurse, is a medical assistance act that can be conducted under the direction and supervision of the doctor, Defendant Kim △△△△△, a medical assistance act that helps △△△, using the medical tape called “Steri-Strip” (hereinafter referred to as “the instant salary assistance act”), the prosecutor submitted evidence that the instant salary assistance act constitutes a violation of the Medical Service Act, and thus, the prosecutor acquitted Defendant Park ○ and Kim △△△△△△ on this part of the facts charged.

Examining the reasoning of the judgment below in comparison with the evidence duly adopted and examined by the court below, the above judgment of the court below is just and acceptable, and there is no error of mistake of facts as alleged by the prosecutor.

Therefore, the prosecutor's argument of mistake is without merit.

3. Judgment on the misapprehension of the legal principles on Defendant Park Jong-○ and Kim○-○

A. The number of crimes and specific facts charged by Defendant KimO

Based on the circumstances indicated in its reasoning, the lower court determined that the joint criminal conduct by Defendant Park ○-○ and Kim ○○ constitutes a series of acts resulting from the formation of a single and continuous criminal intent by which the legal interest in the damage was identical, and the attitude of the crime was identical and continuous, and that the facts charged were sufficiently specified to the extent that it can be distinguishable from other facts. Examining the reasoning of the lower judgment in comparison with the evidence duly adopted and examined by the lower court, the lower court’s aforementioned determination is justifiable, and it did not err by misapprehending the legal principles as argued by Defendant Kim 00.

B. As to whether Defendant KimO’s act of inserting cement and stephrhesion was committed, Defendant Park ○ and Kim ○○ asserted the same purport in the original judgment, and the lower court, based on the circumstances stated in its reasoning, acknowledged that Defendant Kim ○ engaged in cement injection for surgery and stephrology insertion.

Further, according to the court below's reasoning, the following facts and circumstances acknowledged by the evidence duly adopted and examined at the court below and the court below, i.e., ① the former ○○ consistently made a statement from the investigative agency to the court below on the process of the operation of the spinal mal marization surgery, the process of the operation of the spinal marization surgery, the situation at the time, etc., and it is difficult to make the above statement without direct experience. The former ○○○'s act of inserting the former marization was deemed to have made a statement favorable to the Defendant Park○○○ in light of the fact that the former marization surgery and the spinal marization surgery was very hot and good, and thus, some statements made by the former mar○○○○'s former mar were reliable, ② the Defendant's act of inserting the above marization Kim mar's body, and there was no error in the misapprehension of legal principles as to whether the above act of inserting it into the patient's body.

Defendant Park○-○ and Kim○-○ also asserted the same purport in the original judgment, and the lower court, based on the circumstances stated in its reasoning, determined that Defendant Kim○-○ could not perform the above acts, on the ground that the act of mixing and injecting cement for surgery, and the act of inserting s the s themee lease constitutes the medical treatment itself that only a doctor can perform in the course of performing medical acts.

Examining the reasoning of the lower judgment in comparison with the evidence duly admitted and examined, the lower court’s aforementioned determination is just inasmuch as cement mixing for surgery, an act of injecting cement for surgery, and an act of injecting the body of a person for an operation, and an act of injecting the stegrative lease is a medical act that could cause harm to public health and hygiene if not performed by a medical personnel, and it is not a medical act for which a nurse’s assistant’s assistance can be performed at the direction of a medical doctor, but

Even if a medical aid act that can be performed under the instruction of a doctor with respect to the mixing and concentration of cement for surgery, the following facts and circumstances were stated to the effect that 00 p.m., i.e., i., e., f., c., c., c., c., c., c., c., c., c., c., c., c., c., c., c., c., c., c., c., c., c., c., c., c., c., c., c., c., c., c., c., c., c. c., c., c. c., c. c., c. c., c., c. c., c. c., c. c., c. c., c. c., c., c., c., c., c. c.

D. Defendant Kim ○-○’s assertion of illegality

(1) Relevant legal principles

As to whether an act constitutes a justifiable act that does not go against the social rules under Article 20 of the Criminal Act, the term “act that does not go against the social rules” under Article 20 of the Criminal Act refers to an act that is acceptable in light of the overall spirit of legal order or the social ethics or social norms surrounding it, and whether a certain act constitutes a legitimate act that does not go against the social rules, and thus, is dismissed as an act that does not go against the social rules, must be determined individually by considering the specific circumstances and on a reasonable basis (see Supreme Court Decision 98Do2389, Apr. 25, 200, etc.).

In principle, a medical practice shall be performed only by a medical person, but only by a nurse, assistant nurse, clinical technician under the Medical Technicians Act, a physical examiner, a occupational technician, a dental technician, a dental technician, or a dental technician's license. However, any other person is prohibited from performing a medical practice under the direction of a doctor or a dentist. Furthermore, a non-medical person cannot perform a medical practice under the direction of a doctor or a dentist. Furthermore, even if a part of the whole process of dental practice is performed, a non-medical person cannot perform a medical practice even if he/she actually performs such medical practice, unless he/she is licensed or licensed to perform a medical practice, he/she is deemed to have the same level of expertise or ability as that of a medical person (see Supreme Court Decision 2003Do2903, Sept. 5, 2003).

When a certain act constituting a medical practice was performed without a license, it shall be recognized that such act constitutes an act which may be acceptable in light of the overall spirit of legal order or the social ethics or social norms surrounding it, comprehensively taking into account the degree of danger of such practice, the general public’s time, the motive, purpose, method, frequency, knowledge level of the procedure, experience in the procedure, the age, physical constitution, health condition of the person to undergo the procedure, the possibility of side effects or risks arising from such act, etc.

Only in cases where such act does not contravene social norms, illegality is excluded (see, e.g., Supreme Court Decision 2005Do8317, Jun. 28, 2007).

(2) Determination

In full view of the following facts and circumstances found by the evidence duly adopted and examined by the court below and the court below, i.e., ① Defendant Kim○○ is merely qualified as an assistant nurse, and Defendant Kim○○ cannot be deemed to have a systematic knowledge or sufficient experience in spinal ebrate type surgery, and ability to deal with the situation. ② In light of the risk of spinal ebrate type surgery, patient’s life, body, or public health risk, etc., the patient was not allowed if he had been aware of the medical act of Defendant Kim○○○, and ③ it cannot be readily concluded that there is no possibility of future risk or side effect on the part of the patient up to the present time. Thus, Defendant Kim○○’s act cannot be deemed as an act permissible in light of the overall legal order including the Medical Service Act or social norms.

Therefore, there is no reason to believe that there is a misapprehension of the legal principles as alleged by Defendant Kim ○○, as otherwise alleged by Defendant Kim ○○.

A. Determination on the assertion of unreasonable sentencing by the prosecutor on the defendant Park ○-○ and the defendant Park ○-○

We also examine the arguments of the prosecutor and the defendant Park ○○. The fact that the defendant Park Park 00 had no record of punishment for the same crime is favorable to the defendant Park O.

However, in light of the contents, circumstances, frequency, and duration of the instant crime, etc., the liability of the Defendant Park ○○’s crime was grave and disadvantageous to the Defendant Park ○○.

In addition, in full view of the various circumstances, including the age, character and conduct, environment, family relationship, motive, means and consequence of the crime, etc., as indicated in the instant pleadings, and the fact that there are no special circumstances or changes in circumstances that make it possible to change the sentencing of the lower court after the lower judgment, it cannot be deemed that the lower court’s punishment is too weak or unreasonable to the extent that it is deemed that the lower court’s punishment exceeded the reasonable scope of discretion.

The prosecutor’s assertion of unreasonable sentencing on Defendant Park 00 and Park Park 00 is groundless.

B. Determination of unfair sentencing by Defendant Kim ○○

Defendant ○○ has no record of punishment in excess of the same crime and fine, which is favorable to Defendant ○○○.

However, in light of the contents, circumstances, frequency, period, etc. of the instant crime, there are no special circumstances or changes in circumstances that may be newly considered after the pronouncement of the lower judgment, and in full view of the following circumstances, such as the Defendant Kim ○○’s age, character and conduct, environment, motive, means and consequence of the instant crime, etc., it cannot be deemed that the lower court’s punishment is too unreasonable to the extent that it is deemed that the lower court’s punishment exceeded the reasonable scope of discretion.

Therefore, Defendant Kim○-○’s assertion of unreasonable sentencing is groundless.

5. Conclusion

Since the appeal by the prosecutor and the defendant Park ○ and Kim ○○ does not have any reason, all of them are dismissed in accordance with Article 364(4) of the Criminal Procedure Act.

Judges Kim Jae-ho

Judges Kim Gin-han