Since the Defendant’s instant act constitutes a justifiable act as provided in Article 20 of the Criminal Act or an act with the victim’s consent as provided in Article 24 of the Criminal Act, illegality is removed. Thus, the lower court erred by misapprehending the legal doctrine, thereby convicting the Defendant as to the facts charged in this case.

Judgment

The "act which does not violate the social rules" under Article 20 of the Criminal Act concerning the argument that the illegality is excluded due to the act of a political party refers to the act which can be accepted in light of the overall spirit of legal order or the social ethics or social norms surrounding it. Whether a certain act is a legitimate act that does not violate the social rules and thus, should be determined individually by considering and reasonably the specific circumstances. Thus, in order to recognize such a justifiable act, the following requirements should be met: (a) legitimacy of the motive or purpose of the act; (b) reasonableness of the means or method of the act; (c) formation of the right to benefit and infringement; (d) formation of legal interest with other means or method than the act; and (v) supplementary nature that there is no other means or method than the act. Generally, it should be punished under Article 66 of the Medical Service Act because it constitutes a non-licensed medical act (limited medical act) under Article 25 of the same Act; and (d) it is difficult to deem it to be an act that does not violate the social rules immediately due to the mere reason that the risk of the procedure is broad.

, however, the degree of the risk of the act of aggression, the general public's view, the motive, purpose, method, frequency of the procedure, the knowledge level of the procedure, the experience of the procedure, the age, physical constitution, health condition of the person to be tested.