Defendant 4 shall be punished by imprisonment for three years.

2. The Defendants’ appeal and the Prosecutor’s appeal against Defendant 1 are all dismissed.

A. Defendant 1 (Defendant 1 of the Supreme Court’s judgment)

(1) Defendant 1’s assertion of mistake of facts and determination thereof

(A) The argument

① Korea’s KRW ○○○○○○○○○○○○○○○○○○○, Korea’s KRW ○○○○○○○○○ (a.b., part of the first instance judgment [the name of the medical institution; hereinafter the same shall apply] as indicated in Article 3-1(a), (b), and (c) of the Decision: The entity that established each of the above medical institutions is a non-profit corporation, Nonindicted Incorporated Association (hereinafter “instant corporation”), and there was no fact that Defendant 1 had established a medical institution as a non-profit corporation.

(2) The part of the meeting at issue (the part of the first instance court [the second instance court Decision 2013No. 1712]: Defendant 1 did not establish a meeting at issue in collusion with Defendant 2.

(B) Determination as to the above (1)

Compared with the records and the reasoning of the lower judgment, the lower court’s determination that Defendant 1 established each Council member or one Council member by borrowing the name of the juristic person of this case from the name of the juristic person is just and acceptable. Therefore, there is no error of misunderstanding of facts alleged by Defendant 1 as to this part.

(C) Determination as to the above (2)

In relation to accomplices who are jointly processed with two or more persons in a crime, the conspiracy is not required under the law, and there is a combination of two or more persons to jointly process the crime and realize the crime. The conspiracy is established in order or impliedly, and the combination of the intent to realize the crime is achieved. In full view of the records and arguments in this case, the following facts are acknowledged. In applying the above legal principles to the facts acknowledged, even though Defendant 1 explicitly consented to Defendant 3 to have an opportunity to only compensate for damage by receiving investment money from Defendant 2, etc., but Defendant 3 was given an opportunity to only compensate for damage by means of receiving investment money from Defendant 2, etc., and Defendant 4 or Nonindicted 5 or through the director of the corporation such as Nonindicted 5, etc., it is recognized that Defendant 1 conspired to establish the illegal medical institution of Defendant 2 for a long time without exercising the real management right. Accordingly, Defendant 1’s assertion on this part is without merit.

The circumstances leading up to the opening of a meeting at the time of the meeting of the head of the meeting at the time of the meeting and the actual operating entity: Defendant 3 took over and operated the facility at the time of the meeting on April 201 to May 201, the total of KRW 250,000 ( KRW 100,000 to Nonindicted 6, and KRW 150,000 to KRW 1,50,000 to the corporation of this case in terms of equipment expenses) from April 201, and Defendant 2 transferred the operating right to KRW 210,000 to Defendant 2. Defendant 2 from the time of the acquisition to November 30, 2011. Defendant 2 operated a meeting at the time of the meeting of the head of the meeting of the meeting of the head of the meeting at the time of the meeting at the time of the meeting of the head of the meeting.

The statement made by Defendant 3: (a) The investigative agency recognized that the premium was paid by Defendant 2 and that it was given money from Defendant 2 because it was donated to a corporation more than KRW 200 million when it was entrusted to a corporation by the corporation of this case; (b) around May 201, the court below reported that Defendant 1 visited Defendant 1 and transferred KRW 200 million to Defendant 2; (ii) Defendant 1 did not approve the transfer of the premium to Defendant 2; and (iii) he had already received the down payment from Defendant 2; (iv) he was sent to the corporation of this case by Nonindicted 4 director on a regular basis; and (iii) Defendant 3 stated that Defendant 2 was in an indirect manner operating the hospital; and (iv) Defendant 1 rejected Defendant 2’s request for the transfer of the premium.

Defendant 2’s statement: (a) The investigative agency stated to the effect that: (b) Defendant 1 took over the right to manage a member of the board of directors at the time when Defendant 3 had been operating the meeting of the meeting of the meeting of the meeting of the meeting of the meeting of the meeting of the meeting of the meeting of the board of the meeting of the meeting of the meeting of the board of the meeting of the board of the meeting of the board of the meeting of the board of the meeting of the board of the meeting of the board of the meeting of the board of the meeting of the meeting of the board of the meeting of the board of the meeting of the board of the meeting of the meeting of the board of the meeting of the board of the meeting of the meeting of the board of the meeting of the board of the meeting of the meeting of the board of the meeting of the board of the meeting of the meeting of the meeting of the board of the meeting of the board of the meeting of the above: (c) Defendant 1 made a statement that Defendant 1 would bring about KRW 2 million every month to cash under the conditions of the mutual use; and (d) Defendant 1)

According to the articles of incorporation of the corporation of this case, the non-standing director of the corporation of this case, who had regularly visited the meeting of the meeting of the meeting of the meeting of the meeting of the meeting of the meeting of the meeting of the meeting of the meeting of the meeting of the meeting of the non-party 4, who received a report on the current status of the meeting of the meeting of the meeting of the meeting of the meeting of the meeting of the meeting of the meeting of the meeting of the meeting of the meeting of the non-party 4: The head of the branch of this case has the right to obtain all approval, such as personnel rights, property rights, and the right to audit, and the head of the branch of the branch of the business is at issue, and thus, there was a problem. However, the defendant 3 has been an opportunity to arrange for the corporation of this case to minimize damage, and even if the defendant 3 has transferred to another person, the corporation of this case is not involved, but the corporation of this case is omitted between the transfer of the meeting of the meeting of the meeting of the defendant 3.

On May 12, 201, 201, immediately after the date when the registration director of the instant legal entity was transferred to Defendant 2, Defendant 3 retired from office as a director of the instant legal entity on May 12, 201, and Nonindicted 5 was appointed as a director on May 13, 201, on the following day. However, Nonindicted 5 did not participate in the operation of the meeting of the meeting of the meeting of the meeting of the head of the △△△ for the head of the instant legal entity.

(2) Defendant 1 and the prosecutor’s assertion of unreasonable sentencing and determination thereof

As to the punishment of the court below (three years of imprisonment by summing up the punishments prescribed in each of the crimes in the market), Defendant 1 asserts that it is too unreasonable and unfair, and the prosecutor asserts that it is too uneasible and unfair.

In light of the records and arguments of this case, the court below’s punishment against Defendant 1 is too heavy or minor. Therefore, Defendant 1 and the prosecutor’s appeal on unreasonable sentencing are without merit.

B. Defendant 2 and 3

(1) The above Defendants’ assertion of misunderstanding of facts (Fraud part) and its determination

The above Defendants asserted that the crime of fraud is not established, since medical personnel actually provide medical treatment and claim normal medical care benefits.

In light of the evidence, it is recognized that the above Defendants were employed by doctors in violation of the Medical Service Act even though they cannot be the founder of a medical institution, and according to the provisions of the National Health Insurance Act, the medical institution established in violation of the Medical Service Act cannot claim medical care benefit costs. Nevertheless, a crime of fraud is established when the above Defendants claimed medical care benefit costs at the illegal medical institution operated by the above Defendants. Accordingly, the above Defendants’ assertion is without merit.

(2) The above Defendants’ assertion of unreasonable sentencing and determination on such assertion

The above defendants asserts that the punishment of the court below (defendant 2: imprisonment of one year and six months, and imprisonment of one year and one year) is too unreasonable.

Defendant 2 not only committed a violation of the Medical Service Act independently from the corporation of this case, but also filed a false medical care benefit claim in collusion with the persons related to the hospital while working as the office staff of the hospital, etc. prior to the instant case. Defendant 2 had been punished for fraud by personally filing a false insurance claim several times (Seoul Western District Court Decision 2010Da2283, Seoul Western District Court Decision 2012Da11455, Dec. 1, 2015). In addition, Defendant 3 was punished by taking part in the establishment of the so-called “office director hospital” prior to the instant crime (Violation of the Medical Service Act) as the head of the hospital’s office division (Seoul Southern District Court Decision 2012Da4088). In addition, in light of the aforementioned past punishment records and arguments on the degree of participation by each of the above Defendants in the instant crime and the period of participation, and the size of profits acquired from the criminal act, etc., Defendant 2’s allegation that the above Defendants’ punishment against the above Defendants is unreasonable.

C. Defendant 4

(1) Defendant 4’s assertion of mistake of facts and determination thereof

(A) The argument

(1) Part of violation of the Medical Service Act: A person who establishes each medical institution as stated in the original judgment shall be the corporation of this case, which satisfies the formal and practical requirements by which the medical institution may be established, and Defendant 4 shall not have established a medical institution as a person other than

② Fraud portion: Defendant 4 is not recognized for fraud in view of the fact that other co-defendants specifically claimed medical care benefits while operating the hospital, and the causal relationship between the act of property disposal and deception, and even if those who used the hospital used another hospital, the same amount of medical care benefits has been paid.

(B) Determination as to the above (1)

The lower court recognized that Defendant 4 committed an act of establishing a medical institution prohibited by the Medical Service Act at the leading location based on evidence duly admitted and investigated. Examining the record and reasoning of the lower court’s judgment with a comparison, the lower court’s aforementioned determination is just and acceptable, and there is no error of law by mistake of facts alleged by Defendant 4.

(C) Determination as to the above (2)

In relation to co-offenders who are jointly processed with two or more persons in a crime, the conspiracy is not required under the law, but is a combination of two or more persons to commit a crime and to realize a crime by co-processing together with other co-defendants in order or impliedly. If the combination is achieved through such conspiracy, the conspiracy relation is established if those who do not directly participate in the act of the crime are involved in the act of the other co-offenders, and even if those who did not participate in the act of the crime have been punished as a co-principal, the conspiracy relation cannot be denied (see, e.g., Supreme Court Decision 2013Do5080, Aug. 23, 2013). According to the records, it is sufficiently recognized that Defendant 4 establishes a medical institution in violation of the Medical Service Act, and claims for medical care benefit costs are treated as a combination of doctors by either successively or implicitly through other co-defendants or impliedly. Therefore, this part of the allegation by Defendant 4 is without merit.

(2) The Prosecutor’s assertion of mistake (not guilty part) and the determination thereof

(A) The argument

제출된 증거에 의하면 ◎◎◎◎◎한의원에 관한 공소사실은 피고인 4의 자백을 보강할 증거가 충분함에도 불구하고 원심은 자백이 유일한 증거라는 이유로 무죄를 선고하였다.

(B) Determination

○ Summary of this part of the charges

(a) Violation of the Medical Service Act;

피고인 4는 2010. 8. 2. 서울 영등포구 (주소 3 생략) ▽▽타운 202호에서 진료실, 물리치료실 등을 구비하고, 한의사 피고인 7(대법원판결의 피고인 5) 및 직원들을 고용한 후 ‘공소외 1 사단법인 ◎◎◎◎◎한의원’이라는 명칭으로 의료기관을 개설하였다.

Accordingly, the Defendant, who is not a doctor, established a medical institution.

(b) Fraud;

In case where a person who is not entitled to establish a medical institution in violation of the Medical Service Act has employed a doctor to perform medical practice, he may not claim medical care benefit costs under the National Health Insurance Act.

피고인 4는 2010. 8. 2.부터 2010. 11.경까지 위 ◎◎◎◎◎한의원을 운영하면서 한의사 피고인 7, 공소외 7을 고용하여 환자를 진료하게 한 후 건강보험심사평가원에 요양급여비용명세서를 제출하여 심사를 의뢰하고, 그 심사 결과를 통보받아 이를 진실로 믿은 피해자 국민건강보험공단으로부터 원심 판시 별지 범죄일람표(13) 기재와 같이 요양급여비 명목으로 합계 11,520,640원을 지급받았다.

○ Judgment of the court below

원심은, 피고인 4가 이 부분 공소사실에 대하여 수사기관에서 자백하였으나 ◎◎◎◎◎한의원이 형식상으로만 이 사건 법인의 명의를 빌려 개설되었다는 점, 즉 실질적으로 위 병원의 시설 및 인력의 충원·관리, 개설신고, 필요한 자금의 조달, 그 운영성과의 귀속 등이 어떻게 이루어졌는지에 관하여 피고인의 자백 외에 이를 보강할 만한 증거가 없어 결국 피고인 4의 위 자백이 같은 피고인에게 불리한 유일한 증거에 해당하여 형사소송법 제310조 에 의하여 이를 유죄의 증거로 삼을 수 없다는 이유로, 이 부분 공소사실을 무죄로 판단하였다.

○ Judgment of the Central Committee

Reinforcement evidence for confession is sufficient if it is sufficient to recognize that the confession of a criminal defendant is not processed, even if the whole or essential part of the criminal facts is not sufficient to recognize the whole or essential part of the criminal facts, and it is sufficient to prove that the confession of a criminal defendant is true, not processed, as well as indirect evidence or circumstantial evidence. In addition, if confession and reinforcement evidence are mutually consistent and it is possible to prove the criminal facts as a whole as evidence of guilt (see Supreme Court Decision 2010Do11272, Dec. 23, 2010, etc.).

원심이 적법하게 채택·조사한 증거들[등기사항 전부증명서(증거기록 제133면), 공소외 1 사단법인 요양기관 현황(증거기록 제1033면), 수사보고서(봉직의사 현황 및 요양급여비용심사결정 현황, 증거기록 제1292면)]에 의하면, 위 ◎◎◎◎◎한의원 개설 당시에 피고인 4가 이 사건 법인의 대표자 이사로 재직하고 있었던 사실, ◎◎◎◎◎한의원에서 한의사 피고인 7, 공소외 7이 순차적으로 근무하였던 사실, ◎◎◎◎◎한의원은 국민건강보험공단으로부터 요양급여비 명목으로 합계 11,520,640원을 지급받은 사실이 인정된다. 따라서 위 증거들은 이 부분 공소사실에 관하여 피고인 4의 자백이 진실한 것임을 인정하기에 충분한 보강증거가 된다. 결국 피고인의 자백을 보강할 증거가 없다는 이유로 이 부분 공소사실을 무죄로 판단한 원심은 사실을 오인한 잘못이 있다.

On the other hand, among the judgment of the first instance, the non-guilty part as to Defendant 4 and the guilty part are concurrent crimes under the former part of Article 37 of the Criminal Act. Defendant 4 also appealed on the guilty part and the judgment of the court below is pending in the trial. Thus, the judgment of the court below is reversed

(3) Defendant 4 and prosecutor’s assertion of unreasonable sentencing

As to the lower court’s punishment (three years of imprisonment), Defendant 4 asserts that it is too unreasonable and unfair, and the prosecutor asserts that it is too uneasible and unfair. However, as seen in the above (2), the prosecutor’s appeal is well-grounded, and thus, the judgment on the allegation of unfair sentencing between Defendant 4 and the prosecutor is omitted.

D. Defendant 5 (Defendant 3 of the judgment of the Supreme Court), and part on Defendant 6 (Defendant 4 of the judgment of the Supreme Court)

(1) misunderstanding of facts or misunderstanding of legal principles by the above Defendants, and determination thereof (the part concerning violation of the Medical Service Act)

(A) The argument

The corporation of this case is an incorporated association that can establish a medical institution for the purpose of its articles of incorporation, and is a medical person who can establish a medical institution as Defendant 5-do oriental medical doctor. Therefore, the judgment of the court below that the above defendants conspired with co-defendant 4, 7, etc. and illegally established a medical institution is

(B) Determination

Article 66 subparag. 3 and the main text of Article 30(2) of the former Medical Service Act (see, e.g., Supreme Court Decision 2004Do7245, Feb. 25, 2005) if a medical person conspired to establish a medical institution by a person, other than a medical person or a medical corporation, and processed the case, constitutes a co-principal with the crime of violating Article 66 subparag. 3 and the main text of Article 30(2) of the former Medical Service Act (see, e.g., Supreme Court Decision 2004Do7245, Feb. 25, 2005). According to the records of this case, it is sufficiently recognized that the Defendants 5 and 6

(2) misunderstanding of facts or misapprehension of legal principles by the above Defendants, and determination of such facts (Fraud part)

(A) The above Defendants’ assertion

Defendant 5 believed that the establishment of a medical institution in the name of the pertinent legal entity was possible, and as an oriental medical doctor himself/herself, Defendant 5 or other employed oriental medical doctors claiming medical care benefits from the National Health Insurance Corporation after treating patients is the claim for normal medical care benefits. In addition, this is an employee in charge of accounting and neither Defendant 5 nor 6 participated in the claim for medical care benefits. Therefore, the judgment of the court below that Defendant 5 and 6 acquired medical care benefits by deceiving the National Health Insurance Corporation.

(B) Determination

Even if Defendant 5, an oriental medical doctor, was involved in the establishment of a medical institution, so long as the establishment of the medical institution was recognized as a violation of the Medical Service Act, the medical institution illegally established as such is unable to claim medical care benefit costs, and thus crime of fraud is established. In addition, according to evidence, even if the person who requested medical care benefits is the employee in charge of accounting, Defendant 5 is an oriental medical doctor, and it is sufficient to recognize that Defendant 6 actively participated in the actual act of the actor as the head of the above hospital. Accordingly, the lower court’s

(3) The assertion of unreasonable sentencing by the above Defendants and the determination thereof

(A) The argument

The sentence of the lower court ( ① Defendant 5: 1 year of imprisonment, 2 year of suspended execution, 6 year of imprisonment, 2 year of suspended execution) is too unreasonable.

(B) Judgment on Defendant 5

According to the records, Defendant 5 was sentenced to a suspended sentence of two years for a year, and a fine of two million won for a violation of the Act on Special Measures for the Control of Public Health Crimes (Unlawful Medical Service Providers) due to the crime aiding and abetting the act of oriental medical treatment prior to the instant case, and the judgment became final and conclusive (Seoul Central District Court 2008No4332). Nevertheless, Defendant 5 again committed the instant crime, and Defendant 5 provided medical treatment at two ○ Han-han Won (Seoul Metropolitan City, Metropolitan City, and Gangseo-gu), and filed a false and unfair claim for medical expenses over several hundred times. Considering the various sentencing conditions shown in the instant records and arguments, including these circumstances, the lower court’s sentence is too unreasonable.

(C) Judgment on Defendant 6

In light of various sentencing conditions indicated in the records and pleadings, such as the process and degree of participation in the instant crime, the amount of profit acquired, and the period of crime, etc., the lower court’s punishment is too unreasonable.

E. Defendant 7

(1) misunderstanding of facts or misapprehension of legal principles by Defendant 7 and determination thereof

(A) The argument

① Violation of the Medical Service Act: The instant legal entity is an incorporated association that can establish a medical institution for the purpose of its articles of incorporation, and Defendant 7 also is a medical person who can establish a medical institution as an oriental medical doctor. Therefore, even if a medical person borrowed the name from a person who can establish a medical institution, the lower court’s judgment that found Defendant 7 guilty of the charge of violating the Medical Service Act as to Defendant 7 is erroneous in matters

② Fraud portion: The facts charged are based on the premise that the offense of violating the Medical Service Act is guilty, and since Defendant 7 did not violate the Medical Service Act, the judgment of the court below which found Defendant 7 guilty of the facts charged of fraud is erroneous in misunderstanding of facts or misunderstanding

(B) Determination

Even if a medical person is a medical person, it is sufficient to recognize his/her act of participation as a violation of the Medical Service Act in the act of establishing a medical institution by collusion with the medical person or a person who is not a medical corporation. According to evidence, it is sufficient to recognize his/her act of participation as a violation of the Medical Service Act. [In the case of a medical person based on Supreme Court precedents (2004Do3875 delivered on September 24, 2004), Defendant 7’s defense counsel can not be deemed as a violation of the main sentence of Article 30(2) of the Medical Service Act even if a medical person is established under his/her name from among persons stipulated in each subparagraph of Article 30(2) of the former Medical Service Act (Article 33(2) of the current Medical Service Act, hereinafter the same shall apply). However, the above Supreme Court precedents are not only qualified to legally establish a medical institution as a doctor of the pertinent case, but also a juristic person who is the nominal owner of a medical institution to establish and manage the medical institution in light of its purpose.

(2) Defendant 7’s assertion of unreasonable sentencing and determination thereon

Defendant 7 asserts that the sentence of the lower court (two years of imprisonment, two years of suspended execution, and three million won of fine) is too unreasonable.

In light of various sentencing conditions indicated in the records and arguments, including the fact that Defendant 7 took part in the instant crime and degree of participation, the size and period of the benefit acquired, the period of the crime, and the fact that Defendant 7 falsely prepared medical records while operating the ○○○ Medical Center, and then claimed the amount of charge to the National Health Insurance Corporation to be punished for fraud, etc., the lower court’s punishment is too unreasonable.

F. Defendant 8 (Defendant 6 of the Supreme Court’s judgment)

(1) Defendant 8’s assertion of mistake of facts and determination thereof

(A) The argument

Defendant 8 participated in the president of the instant legal entity as a member to participate in various volunteer activities, which are the purpose of the instant legal entity, and paid expenses incurred in establishing the medical institution to become the head of the branch. Nevertheless, the lower court found Defendant 8 guilty of each of the facts charged, which is erroneous in misunderstanding of facts.

(B) Determination

기록에 의하면, 피고인 4는 당시 이 사건 법인의 의료사업단장인 공소외 2에게 매월 법인 명의 사용 대가로 100만 원씩 지급받는 것을 조건으로 경영권을 주고 공소외 2로 하여금 의원을 개설할 사람을 알아보게 한 사실, 피고인 8은 공소외 2를 통해 이 사건 법인 명의를 빌려 의원을 개설할 수 있다는 말을 듣고 가입비 명목으로 1,000만 원을 이 사건 법인 계좌에 입금하고 ◁◁◁◁◁◁◁◁◁의원을 개설한 사실이 인정되므로 이 사건 공소사실을 유죄로 인정한 원심에는 사실오인의 위법이 없다(피고인 8이 주장하는 바와 같이 이 사건 법인의 목적사업인 각종 봉사활동에 참여하기 위한 목적이 있었다고 하더라도 이 사건 공소사실을 유죄로 인정함에 지장이 없다).

(2) Defendant 8’s assertion of unreasonable sentencing and determination thereon

Defendant 8 asserts that the sentence of the lower court (two years of imprisonment with prison labor, eight months of suspended execution, and two years of suspended execution) is too unreasonable. In light of the various sentencing conditions shown in the arguments and records, including the process and degree of participation in the instant crime, Defendant 8’s punishment is too unreasonable.

2. Conclusion

A. Since an appeal for mistake of facts by the prosecutor against the acquittal portion of Defendant 4 is well-grounded, the judgment of the court below is reversed pursuant to Article 364(6) of the Criminal Procedure Act, and it is so decided as follows (the judgment re-written with respect to Defendant 4).

B. The Defendants’ appeal and the Prosecutor’s appeal against Defendant 1 are without merit, and all of them are dismissed pursuant to Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition (However, according to Article 25 of the Regulation on Criminal Procedure, “22 months” and “2 months” in Article 48 of the Regulation on Criminal Procedure, “22 months” and “2 months” in Article 364(4) of the Regulation on Criminal Procedure, “25 months” and “2 months of the Decision No. 19 of the Second Instance Decision,” respectively, are corrected since it is obvious that there was any error.

【Additional Facts】

“5. 공소외 1 사단법인 ◎◎◎◎◎한의원 관련

(a) Violation of the Medical Service Act;

피고인 4는 2010. 8. 2. 서울 영등포구 (주소 3 생략) ▽▽타운 202호에서 진료실, 물리치료실 등을 구비하고, 한의사 피고인 7 및 직원들을 고용한 후 ‘공소외 1 사단법인 ◎◎◎◎◎한의원’이라는 명칭으로 의료기관을 개설하였다.

Accordingly, the above Defendant established a medical institution as a person who is not a doctor, etc.

(b) Fraud;

In case where a person who is not entitled to establish a medical institution in violation of the Medical Service Act has employed a doctor to perform medical practice, he may not claim medical care benefit costs under the National Health Insurance Act.

피고인 4는 2010. 8. 2.부터 2010. 11.경까지 위 ◎◎◎◎◎한의원을 운영하면서 한의사 피고인 7, 공소외 7을 고용하여 환자를 진료하게 한 후 건강보험심사평가원에 요양급여비용명세서를 제출하여 심사를 의뢰하고, 그 심사 결과를 통보받아 이를 진실로 믿은 피해자 국민건강보험공단으로부터 원심 판시 별지 범죄일람표(13) 기재와 같이 요양급여비 명목으로 합계 11,520,640원을 지급받았다.“

Articles 87(1)2 and 33(2) of the Medical Service Act, Article 30 of the Criminal Act (the establishment of a non-qualified medical institution, the choice of imprisonment), Articles 347(1) and 30 of the Criminal Act (a comprehensive fraud, and the choice of imprisonment)

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

Judges Oi-Un (Presiding Judge)