[2] The meaning of "medical act" under Article 27 (1) of the former Medical Service Act

[3] Whether Article 17(1) of the former Medical Service Act and Article 27(1) of the same Act concerning the prohibition of preparation and issuance of prescriptions, etc. by a doctor who did not directly conduct a medical examination constitutes a separate constituent element that differs from the legislative purpose, requirements, and effect (affirmative)

[4] The case holding that in a case where a doctor Gap ordered the assistant nurse Eul to issue a prescription to three persons such as Byung by telephone without his/her own hospital and ordered the assistant nurse Eul to issue a prescription to him/her, the suspension of sentence of a fine of KRW 2 million was finalized on the ground that the violation of Article 17 (1) of the former Medical Service Act was committed, and the Minister of Health and Welfare ordered Gap to suspend his/her license two months and ten days for suspension of qualification on the ground that "the above violation was committed to the assistant nurse Eul who is not a medical person, and thus constitutes a violation of Article 27 (1) of the former Medical Service Act, since the above violation was committed to the assistant nurse Eul who is not a medical person," the act of preparing and issuing a prescription to the patient pursuant to such doctor's instructions cannot be deemed as an unauthorized Medical Service Act prohibited under Article 27 (1) of the former Medical Service Act

[2] Article 27(1) of the former Medical Service Act (amended by Act No. 11748, Apr. 5, 2013) allows only medical personnel to perform medical practice, and allows only licensed medical personnel to perform medical practice, thereby strictly prohibiting unlicensed medical practice. Here, “medical practice” refers to the practice of prevention or treatment of diseases conducted through diagnosis, autopsy, prescription, medication, or surgical treatment based on medical expertise and skills based on experience and function, and other acts that may cause harm to public health and sanitation if performed by a medical personnel.

[3] Article 17(1) of the former Medical Service Act (amended by Act No. 11748, Apr. 5, 2013; hereinafter the same) provides that a person who violates Article 17(1) shall be punished by imprisonment with prison labor for not more than one year or by a fine not exceeding five million won (Article 89); and Article 27(1) of the former Medical Service Act provides that a person who violates Article 87(1) shall be punished by imprisonment with prison labor for not more than five years or by a fine not exceeding 20 million won (Article 87(1)2 of the former Medical Service Act). In addition, Article 4 [Attachment Table] of the former Rules on Administrative Measures Concerning Medical Care (Amended by Act No. 190, Mar. 29, 2013; hereinafter the same applies) provides that a medical person shall be punished by suspension of qualifications for a violation of Article 17(1)7(a) of the former Medical Service Act and Article 27(1)7(1) of the former Medical Service Act shall not be punished by a medical person for two months.

[4] In a case where: (a) a doctor Gap ordered three or more persons including Byung to issue a prescription to him/her by telephone without his/her own hospital; and (b) a doctor Gap issued a prescription to issue a prescription to him/her; (c) a judgment of suspension of sentence of KRW 2 million became final and conclusive on the ground that he/she violated Article 17(1) of the former Medical Service Act (amended by Act No. 11748, Apr. 5, 2013; hereinafter the same shall apply); and (d) the Minister of Health and Welfare issued a disposition ordering suspension of qualification 2 months and 10 days for the reason that “the act of violation constitutes a violation of Article 27(1) of the former Medical Service Act because he/she provided medical treatment to the non-medical assistant Eul; (d) three persons including Byung et al. received a prescription to the non-medical assistant Eul; and (e) the doctor Gap ordered the non-medical assistant Eul to prepare and issue a prescription to the non-medical doctor Eul; and (e) the content of the former Medical Service Act, barring any special circumstance.

1. Case summary and key issue

A. The reasoning of the lower judgment reveals the following circumstances.

(1) On February 14, 2013, the Plaintiff, as a doctor, instructed Nonparty 1 to issue a prescription to Nonparty 2, etc. by telephone without a hospital operated by himself, and accordingly, instructed Nonparty 1 to issue a prescription to Nonparty 2, etc. (hereinafter “instant violation”). Nonparty 1, upon receiving investigation into the instant violation, instructed the Plaintiff to perform the same prescription as the Plaintiff prescribed before the Plaintiff, and accordingly, stated that, upon receiving the investigation into the instant violation, Nonparty 1, who was given the direction that “the Plaintiff was sent to three persons, including Nonparty 2, etc., by telephone, and the Plaintiff was given a prescription to the patient.”

(2) The Plaintiff was found to have violated Article 17(1) of the former Medical Service Act (amended by Act No. 11748, Apr. 5, 2013; hereinafter “former Medical Service Act”) and was sentenced to a suspended sentence of a fine of KRW 2 million (Cheongju District Court Decision 2016Ma870, Dec. 2, 2016), and its judgment became final and conclusive as it is.

(3) On January 10, 2017, the Defendant rendered the instant disposition against the Plaintiff on the ground that “the instant violation constituted a violation of Article 27(1) of the former Medical Service Act because it had Nonparty 1, a nursing assistant who is not a medical personnel, conduct medical practice.”

B. The key issue of the instant case is whether the instant violation constitutes a violation of Article 27(1) of the former Medical Service Act.

2. Relevant provisions and legal principles

A. The main text of Article 17(1) of the former Medical Service Act provides that a medical doctor, dentist, or herb doctor, other than a medical doctor, dentist, or herb doctor, shall not prepare and deliver a medical certificate, autopsy report, certificate, or prescription to the patient. This purpose is to ensure that a medical doctor, etc. expresses his/her judgment as a medical person based on the result of a direct medical examination or autopsy of the patient, and that a doctor, etc. is in charge of important social functions such as proving a person’s health condition, etc. and determining civil and criminal liability, and only a doctor, etc. who directly conducted a medical examination or autopsy may prepare and deliver the medical certificate, autopsy, certificate, or prescription to the patient without a medical examination. Therefore, if a doctor, etc., displayed the patient as a person subject to the medical examination and prepares and delivers the medical examination, autopsy, certificate, or prescription without a direct examination, it constitutes a violation of Article 17(1) of the former Medical Service Act (see, e.g., Supreme Court Decision 2014Do12608, Dec. 22, 2017).

According to Article 12(1) of the former Enforcement Rule of the Medical Service Act (amended by Ordinance of the Ministry of Health and Welfare No. 282, Jan. 2, 2015) upon delegation of Article 17(5) of the former Medical Service Act, where a doctor or a dentist issues a prescription to a patient (attached Form 9), he/she shall write “the name, volume, method, volume, and volume of the prescription” in the prescription (attached Form 9) and then put his/her signature or seal on the prescription, and (attached Form 9) include the name, volume, volume, number of administration per day, total number of administration days, etc. of the prescription.

B. Article 27(1) of the former Medical Service Act permits a medical person to perform medical practice only, and allows a medical person to perform only licensed medical practice. Here, “medical practice” refers to the practice of prevention or treatment of diseases caused by diagnosis, autopsy, prescription, medication, or surgical practice based on medical expertise and functions, and other acts that may cause harm to public health and sanitation if not performed by a medical person (see, e.g., Supreme Court Decision 2017Do1942, Jun. 19, 2018).

C. Article 17(1) of the former Medical Service Act provides that a person who violates Article 17(1) shall be punished by imprisonment with prison labor for not more than one year or by a fine not exceeding five million won (Article 89), while a person who violates Article 27(1) shall be punished by imprisonment with prison labor for not more than five years or by a fine not exceeding 20 million won (Article 87(1)2) of the former Medical Service Act (amended by Ordinance of the Ministry of Health and Welfare No. 190, Mar. 29, 2013). In addition, Article 4 [Attachment Table] of the former Rules on Administrative Measures Concerning Medical Services (amended by Ordinance of the Ministry of Health and Welfare No. 190, Mar. 29, 2013) provides that “where a medical person issues a prescription in violation of Article 17(1) of the former Medical Service Act, suspension of qualification shall be imposed for not more than two months (Article 27(1)5) of the former Medical Service Act).

3. Determination as to the instant case

A. Examining these facts in light of the relevant provisions and legal principles as seen earlier, the following determination is possible.

(1) Since the three non-party 2 and others were the patients who had been issued a prescription after undergoing the previous medical examination by the plaintiff, if the plaintiff ordered the non-party 1 et al. to the non-party 2 and the non-party 3 patients, the contents of the prescription, barring special circumstances, was specified, and the contents of the prescription should be deemed not to have been determined by the non-party 1 but by the plaintiff, who is the doctor.

(2) Even if the Plaintiff instructed Nonparty 1 to prepare and issue a prescription without confirming the status of the Plaintiff’s direct conversations with Nonparty 2, etc., it cannot be the ground for Nonparty 1 to determine the content of the prescription, apart from the fact that there is a violation of Article 17(1) of the former Medical Service Act providing that “A person who is not a direct doctor or a prescription shall not prepare and deliver a prescription, etc. to the patient.”

(3) Inasmuch as a physician determines the content of a prescription and instructs the preparation and issuance thereof, the act of a nurse or assistant nurse to prepare and issue a prescription to the patient according to such doctor’s instructions cannot be deemed as constituting an unlicensed medical act prohibited under Article 27(1) of the former Medical Service Act.

B. Nevertheless, the lower court determined that the Plaintiff violated Article 27(1) of the former Medical Service Act by ordering Nonparty 1, who is not a medical person, to prepare and issue an essential prescription, which is allowed only to the medical person, on the grounds that the Plaintiff’s instruction to Nonparty 1 was not a detailed instruction for the preparation and issuance of a prescription. In so doing, the lower court erred by misapprehending the legal doctrine on non-licensed medical practice under Article 27(1) of the former Medical Service Act, thereby adversely affecting the conclusion of the judgment.

4. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Jae-chul (Presiding Justice)