[의사면허자격정지처분취소][공1996.4.15.(8),1129]
[1] Whether an act of preparing a false medical certificate for a patient who was under a previous medical examination constitutes a case where a medical doctor or a doctor is not given a medical examination under Article 18(1) of the former Medical Service Act (affirmative)
[2] Nature of the Ordinance of the Ministry of Health and Welfare to determine the criteria for the suspension of medical license under Article 53-3 of the Medical Service Act, and whether the disposition of suspension of medical license can be made even without the enactment of the Ordinance of the Ministry
[1] It is clear that each act of preparing a false diagnosis statement stating the scheduled date of delivery or the date of delivery different from the actual date without actually examining upon the request of female teachers who want to have a maternity leave from the end of the period of vacation or sick period is in violation of Article 18 (1) of the former Medical Service Act (amended by Act No. 4732 of Jan. 7, 1994) which provides that the act of preparing and delivering a false diagnosis statement stating the scheduled date of delivery or the date of delivery is in violation of Article 18 (1) of the same Act.
[2] According to Articles 53-3 and 53(1) of the Medical Service Act, the detailed criteria for the suspension of a doctor’s license are prescribed by the Ordinance of the Ministry of Health and Welfare. However, the above Ordinance merely provides for the detailed criteria for the suspension of a doctor’s license and its contents in the administrative agency, which is the detailed criteria for the suspension of a doctor’s license and its employees, and thus, the Minister of Health and Welfare has the nature of an administrative order inside the administrative agency concerned and its employees to set guidelines for the suspension of a doctor’s license and thus has the effect of externally binding upon citizens or courts. Thus, the legality of the suspension of a doctor’s license should not be determined based on whether the disposition conforms to the above criteria as prescribed by the Ordinance of the Ministry of Health and Welfare, rather than on whether the disposition conforms to the provisions and purport of the Medical Service Act. Therefore, as long as
[1] Articles 18(1) and 53(1)3 of the former Medical Service Act (amended by Act No. 4732 of Jan. 7, 1994) / [2] Articles 53(1) and 53-3 of the Medical Service Act
[1] Supreme Court Decision 92Nu16010 delivered on July 13, 1993 (Gong1993Ha, 2301)
Plaintiff (Dongdong Law Firm, Attorneys Park Dong-dong et al., Counsel for the plaintiff-appellant)
The Minister of Health and Welfare
Seoul High Court Decision 95Gu1639 delivered on October 6, 1995
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal by the Plaintiff’s attorney.
1. Regarding ground of appeal No. 1
According to the reasoning of the judgment of the court below, the court below found that the plaintiff prepared a false diagnosis statement which stated the scheduled date of delivery or delivery differently from the actual date of delivery without actually examining it four times between July 10, 1991 and October 28, 192 at the request of female teachers who want to have a maternity leave from the expiration of the period of vacation or sick leave from the expiration of the period of vacation or sick leave, and it is clear that the above act of the plaintiff is in violation of Article 18 (1) of the former Medical Service Act (amended by Act No. 4732 of Jan. 7, 1994) which provides that "the above act of the plaintiff shall be engaged in medical business and shall not issue a diagnosis certificate unless he or she has a doctor who has conducted a diagnosis or an autopsy." Thus, the court below's decision that the disposition of this case was legitimate by applying Article 53 (1) 3 of the same Act as of Dec. 30, 1994.
2. Regarding ground of appeal No. 2
According to Articles 53-3 and 53(1) of the Medical Service Act (amended by Act No. 4732 of Jan. 7, 1994), the detailed criteria for the suspension of doctor's license shall be prescribed by the Ordinance of the Ministry of Health and Welfare. However, the above Ordinance of the Ministry of Health and Welfare merely provides for the detailed criteria for the suspension of doctor's license and the contents of the provision in the administrative agency, which is the detailed criteria for the suspension of license and the suspension of license. Thus, the Minister of Health and Welfare has the nature of an administrative order within the administrative agency, issued by the Minister of Health and Welfare to set the guidelines for the suspension of license and its employees, and it does not externally have the effect of binding upon the people or the court. Thus, whether the suspension of doctor's license and the suspension of qualification is legitimate shall not be determined based on whether the disposition conforms to the above provisions and the purport of the Medical Service Act, so long as the disposition is made in compliance with the provisions and purport of the Medical Service Act, it cannot be deemed unlawful. Although the judgment below is somewhat justified, and there is no error in the misapprehension of legal principles.
3. Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Shin Sung-sung (Presiding Justice)