[2] The case affirming the judgment below convicting the defendant on the ground that the above act constitutes a medical act other than the licensed medical doctor's license, in case where the defendant, a herb doctor, was prosecuted for violation of the former Medical Service Act on the ground that he had inspected the growth of the patient by using X-ray radiation generators for diagnosis in the medical doctor's clinic

[2] In a case where the Defendant, a herb doctor, was indicted for violating the former Medical Service Act (amended by Act No. 8852, Feb. 29, 2008; hereinafter “former Medical Service Act”), on the ground that he/she inspected the growth of the patient by using a radiation emitting device for diagnosis from a clinic operated by him/her using a radiation emitting device for diagnosis, the case affirming the judgment below convicting the Defendant on the ground that the Defendant’s act of checking the growth of the patient by using a measuring device constitutes medical practice other than that licensed by a herb doctor, in light of Article 37(1) of the former Medical Service Act concerning the installation and operation of radiation emitting device for diagnosis and Article 37(1) of the former Medical Service Act and Article 10(1) [Attachment 6] of the former Regulations on the Safety Control of Radiation emitting Devices for Diagnosis established by delegation under Article 37 of the former Medical Service Act

1. As to whether medical practice other than the licensed one has been done

A. According to the former Medical Service Act (amended by Act No. 8852, Feb. 29, 2008; hereinafter the same “former Medical Service Act”), the term “medical person” refers to a medical doctor, herb doctor, etc. licensed by the Minister of Health and Welfare (Article 2(1)); the term “medical doctor” refers to medical care and health guidance; and an oriental medical doctor’s duty refers to oriental medicine and health guidance (Article 2(2)1 and 3); and an oriental medical doctor’s or oriental medical doctor’s license is provided for in Article 87(1).

However, the former Medical Service Act does not provide a legal provision that provides for the definition of licensed medical practice by doctors, herb doctors, etc., and thus, whether a specific act constitutes medical practice other than those licensed should be determined in light of social norms by considering specific cases, such as the purpose of the former Medical Service Act, the details of the relevant medical practice, the specific purpose of the medical practice, and the form and manner.

B. The summary of the facts charged in the instant case is that “Around May 23, 2005, the Defendant performed medical acts other than those permitted as an oriental medicine doctor’s license by the above method as seen above on 1,038 occasions against 38 persons from that time, including the Defendant’s 38 persons from that time using a pel-ray measuring device, X-ray radiation generator (hereinafter “the instant measurement device”).

C. Examining the judgment below in light of the aforementioned legal principles, it is reasonable to interpret that all medical institutions may install and operate radiation generators for diagnosis under Article 37(1) of the former Medical Service Act, as stated in the judgment below. However, it is not stipulated in the regulations on the installation and operation of radiation generators for diagnosis to impose an obligation upon medical institutions according to risks, and thus, it cannot be deemed that an oriental medical doctor’s act of oriental medical treatment using the measurement device for diagnosis cannot be deemed as an act of oriental medical treatment. Rather, Article 37(1) of the former Medical Service Act provides that an oriental medical doctor is not included in “medical institution” as stipulated in the above provisions in light of the nature of the medical system in Korea, the duties of medical personnel under the former Medical Service Act, the scope of license, etc., and it is reasonable to interpret that the above provisions are not included in “medical institution” and that the Defendant’s duty of safety control manager cannot be deemed as being exempt from the duty of radiation safety control at least 0 meters per week, as otherwise alleged in the ground of appeal.

2. On the assertion that there was no perception of intention or illegality

Examining the judgment of the court below in light of the records, the court below is just in holding that the defendant did not have any criminal intent or did not have any awareness of illegality for the reasons as stated in its holding, and there is no error of law by misunderstanding the legal principles as to criminal intent and awareness of illegality in the establishment of a crime, as alleged in the

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)