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(영문) 대법원 1992. 5. 22. 선고 91도3219 판결

[보건범죄단속에관한특별조치법위반][공1992.7.15.(924),2057]

Main Issues

A. Concept of medical practice

(b) The case reversing the judgment of the court below on the grounds of misapprehension of legal principles, etc. that the act of injecting the skin of the body, such as eyebrow, etc. with automatic fingerprinting machine and making sentence does not constitute medical practice because it does not pose a risk to the body

Summary of Judgment

(a) The term “medical practice” means not only the act of preventing and treating diseases, but also the act which might cause harm to public health and sanitation if not performed by medical persons;

B. The case reversing the judgment of the court below on the ground that the act of making the eyebrow or the eyebrow pattern with the method of injecting the eyebrow with automatic fingerprinter's eyebrow or the crow shape by injecting the chiller on the upper part of the customer's eyebrow and the method of administering the eyebrow is not a medical act because the procedure method does not lead to any pain and it cannot be viewed as an act likely to cause a close and serious danger to human life, body, or general public health without being performed by the medical personnel, and it is not difficult to see whether it is possible to inject the crow only and what method of conducting the procedure is, and there is a possibility that the chill might inject the chill with the eyebrow due to the worker's practice and there is a concern about infection due to the cream credit invasion, thereby violating the rules of evidence, failing to exhaust all necessary deliberations, and failing to exhaust all necessary deliberations.

[Reference Provisions]

Article 25 of the Medical Service Act, Article 5 of the Act on Special Measures for the Control of Public Health Crimes

Reference Cases

A. Supreme Court en banc Decision 77Do2191 delivered on May 9, 1978 (Gong1978, 10836), Supreme Court Decision 91Do340 delivered on March 10, 1992 (Gong1992, 1341)

Escopics

A

upper and high-ranking persons

Prosecutor

Defense Counsel

Attorneys B and 3 others

Judgment of the lower court

Seoul High Court Decision 91No1777 delivered on August 23, 1991

Text

The judgment below is reversed and the case is remanded to Seoul High Court.

Reasons

We examine the prosecutor's grounds of appeal.

The court below held that medical treatment means not only the act of preventing and treating diseases, but also the act that may cause harm to public health and hygiene if performed by a medical person. The defendant acknowledged the fact that he was using eyebrow or eyebrow shape by inserting it with automatic prescription on the skin part of the instant case, as stated in the facts charged, but on the other hand, on the other hand, injecting cosmetic into the cosmetic is a method of injecting ice into the ice, while it is permanent, but the door injecting into the cosmetic is likely to cause harm to public health and hygiene unless performed by the medical person. Although there is a serious side effect on the cosmetic surgery by the defendant, there is no possibility that the defendant's act of injecting the cosmetic and no serious side effect on the part of the defendant's health and no one may cause harm to public health and no one may cause harm to the defendant by adjusting the length of the above automatic cosmetic equipment and no one may cause harm to the defendant's body and no one may cause harm to the defendant's body by using the cosmetic surgery.

The above judgment of the court below on the definition of medical practice is justifiable. However, it is hard to accept that the court below's determination that the defendant's act of this case cannot be viewed as an act closely and seriously dangerous to human life, body, or general public health unless the defendant's act of this case is performed with highly professional knowledge and experience.

First of all, the court below accepted the defendant's argument that the defendant's act of this case's gate surgery was conducted by injecting a fluence only, and recognized as such, the record accepted the defendant's argument that the non-indicted C, a medical specialist of imposition of the sentence, is a witness at the police and at the first instance court, and the non-indicted D, a medical specialist of sexual appearance, is a witness at the police station, and each person's flusium in the police station is unable to inject a fluor for a fluence at least 0.04§ 04§ and 0.1§, and even if a flusium is inserted into a domestic flusium, flusium can not be a permanent flusium because flusium flusium flusium flusium flusium flusium flusium flusium flusium flusium flusium flusium flusium f.

In addition, the court below also recognized that there is a possibility of multiple side effects as a physical reaction and sensitive reaction to the literature-credit color in the event of injecting a fluorce. Therefore, the court below should have examined whether it is possible to make permanent correspondence by inserting a fluor only the fluoral fluor, not as it is recognized that there is no danger since the Defendant’s act of performing the fluorial procedure of this case, reliance only on the Defendant’s assertion, inasmuch as it injects the fluor into the fluor, by inserting the fluoral fluor,

In addition, even if it is assumed that it is possible to inject colors only to the spons as shown in the judgment below, it cannot be concluded that there is no danger to the Defendant’s act solely for that reason. In other words, even if the sponsing work is intended to inject the spons, it cannot be said that there is no possibility that the sponse or injects the sponse into the sponse due to the number of workers’ loss or other circumstances, and if the sponsespons used for one person is used to another,

In the advertising leaflet (Investigation Records No. 129) prepared by the defendant himself who consented to the use of evidence, the defendant himself gives warning that there is a possibility of side effects due to the invasion of literature and credit or the infiltration of colors into the skin by stating that "it is possible to find out the fact that there is a possibility that there is a possibility that there is a side effect due to the infiltration of literature and credit up to the truth, and that there is a possibility that there is a possibility that there is a side effect due to the infiltration of the skin by infiltration at the time of the procedure.

Therefore, the judgment of the court below that the defendant's act of this case does not constitute medical practice on the ground that it cannot be deemed as an act closely and seriously causing danger to human life, body, or general public health unless the act of this case is performed with a high professional knowledge and experience by a doctor, and therefore, it is erroneous in the misapprehension of legal principles as to medical practice under Article 25 of the Medical Service Act, the violation of the rules of evidence, and the incomplete hearing,

Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-dong (Presiding Justice) Kim Sang-ho (Presiding Justice)

심급 사건
-서울고등법원 1991.8.23.선고 91노1777