2016No445(Consolidated).False entry into public electronic records, etc.

(c) Events such as false statements and electromagnetic records;

D. Violation of the Medical Service Act

(e) Fraud;

(f) Assistance in violation of the Medical Service Act;

(g) Frauding;

2. A. D. E.

Attorney FO (the central office for defendant E)

2. Daegu District Court Decision 2016Gohap26 decided March 24, 2016

2. Defendant A shall be punished by imprisonment with prison labor for one year for a violation of the Medical Service Act, the crime of false entry into public electromagnetic records, etc., the crime of false entry into public electromagnetic records, and the crime of uttering of public electromagnetic records, etc., with prison labor, two years for a violation of the Medical Service Act, the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), and two years for each of

3. However, the execution of each of the above punishment against the Defendants shall be suspended for three years from the date this judgment became final and conclusive.

A. Defendant A

1) misunderstanding of facts or misapprehension of legal principles

With respect to the establishment and fraud of non-medical persons related to X convalescent, the crime is not established because the X-Medical Hospital was legally established and operated by the Nmedical Consumer Cooperatives, and the Defendant borrowed the funds for acquiring hospital at D’s request, and the Defendant did not participate in the operation of the hospital. Nevertheless, the lower court found the Defendant guilty of this part of the judgment below erred by misapprehending the legal doctrine or misapprehending the legal doctrine.

2) Unreasonable sentencing

The first instance court's punishment [the violation of the Medical Service Act due to the establishment of medical institutions by non-medical persons in the market, the crime of false entry into public electronic records, etc., the crime of false entry into public electronic records, etc., the crime of violation of the Medical Service Act due to the act of inducing patients, and the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) in each case,

B. Defendant E

1) misunderstanding of facts or misapprehension of legal principles

With respect to the establishment and fraud of non-medical persons related to X convalescent medical institutions, the Defendant is aware of the hospital, and the Defendant was working as the executive branch of the above hospital, and did not actively participate in the process of establishing and operating the hospital and the claim for medical care benefits. Furthermore, from April 1, 2013 to May 14, 2014, the Defendant was dismissed from his post of recommendation and did not know of the claim for medical care benefits thereafter. Thus, the lower court, which was the Defendant’s intention to commit a joint principal offense with A, erred by misapprehending the legal doctrine or misapprehending the legal doctrine.

2) Unreasonable sentencing

The punishment of the lower court (the first instance court: the imprisonment of 1 year and 6 months, and 2 years: the imprisonment of 1 year and 1 year) is too unreasonable.

2. Determination

A. It is reasonable to deem that Defendant A’s act of investing necessary funds by an ordinary person without qualifications for medical personnel (hereinafter referred to as “non-medical person”) and establishing a medical institution under his/her name is the most formally through the establishment of a legitimate medical institution, and actually violates the main sentence of Article 33(2) of the Medical Service Act because non-medical persons established a medical institution. No reason exists to regard the establishment of a medical institution under the name of a medical person or the establishment of a medical person directly providing medical services. This legal doctrine likewise applies to cases where a medical institution is established and reported in the name of a consumer cooperative established under the Consumer Cooperatives Act (hereinafter referred to as “Life Cooperative Act”), which explicitly permits medical services, in order to improve the consumer’s life life-related activities and improve the welfare of its members and the life culture. The Act enacted for the purpose of contributing to the improvement of health-related projects, such as the provision of the Act on Health and Medical Cooperation to the exclusion of the establishment of a cooperative from the application of the Act on Health and Medical Cooperation to the extent that it is prohibited by Article 15(3).

In light of the above legal principles, the following circumstances recognized by the lower court and the evidence duly admitted and investigated by the trial court were comprehensively taken into account. A X convalescent was formally established in the form of a branch office of Nmedical Consumer Revitalization Cooperatives (hereinafter “Nmedical Life Collaboration”), but in fact, the Defendant, a non-medical person, was established and operated jointly with E. Therefore, the Defendant’s assertion of mistake or misapprehension of legal principles is without merit.

① At the time of the establishment of X medical care centers, NFP, Q, FR and B included the Defendant, and the auditor was AR [the number 65 pages of the original trial 2015 Gohap179 case (hereinafter referred to as 'Evidence Records¡±), D was the head of the FS church in which the Defendant works as a pastor, FP was the head of the RR's nursing services operated by the Defendant, FR was the head of FV, FR was the head of the FT, FR was the head of the FT, FR was the head of the FT who previously worked as the Defendant, and FR was the head of the NP, B was the head of the NF Medical Life Assistance, and AR was both the Defendant and the nearest Defendant at the time of the Defendant’s 2nd 3rd 2nd 1508th 150th 150th 3rd 2461th 201.

③ At the prosecutor’s office in 1987, D had no time and conditions while working in the East Daegu New Cooperative, and was inevitably appointed as the president at the defendant’s request. At the request of the defendant, when the defendant was in office as the president, D approved documents by not knowing the contents of the defendant’s office at one time a month. In particular, according to the Biological Cooperation Act, the approval of the business plan and budget bill from 2013 to 2014 was not resolved at the general meeting, and the approval of the business plan and budget bill from 2012 until 2014, and on April 13, 2013, 207, 3rd 4th 5th 7th 4th 2017 3th 4th 4th 201 7th 4th 25th 201 3th 4th 201 3th 4th 201 3th 4th 201 3th 3th 2015 3rd 28 201.

④ Under the consideration of the fact that the N medical life consultation finance can be strengthened when a X convalescent patient is hospitalized in the X convalescent, X convalescent was promoted through consultation between the Defendant and E. (Evidence Records 3: 2464, 2492), and X convalescent is also the Defendant and E, and it appears that the president of the board of directors was not involved in the acquisition procedure (D’s testimony). The acquisition fund was 30 million won borrowed from N Medical Credit Union and 120 million won borrowed from the Defendant (Evidence Records 3: 2462, 2494), as well as the acquisition fund was funded by borrowing from the Defendant the lack of funds (Evidence Record 3: 208, 208).

⑤ The total number of members of Nmedical Collaborations reached 949 (Evidence 2: 780-798); N’s medical cooperation operated a X convalescent hospital, which is a medical care provider, and subscribed to the Association upon receiving an application for membership of the Association. The number of members of the Association appears to reach half of the number of members who subscribed to the Association (Evidence 27; 3; 1291; 239; 3; 4.4.00; 41; 59; 41; 3.1; 41; 29; 41; 3.56; 41; 41; 29; 3.6; 1.6; 3.6; 1.6; 36.; 1.6; 1.6; 2.000,000,000 won and 1; and 2.3.0,000,000,000 won and 3.

FU, which was the administrative vice head of X convalescent, has met E through the branch, and the defendant was employed after interview, and E mainly played the role of attracting patients and transporting patients, and major instructions and decisions on accounting affairs, employment of employees, etc. were stated to have been exercised by the defendant (FU testimony).E also stated that the major employees working in X convalescent are aware of the fact that the defendant was actually aware of the fact that the defendant was in fact responsible for issuing orders and wrongs (3rd evidence records 2482 pages).

7) E, while serving as the executive head of X-X convalescent, received benefits of KRW 300,000 per month (Evidence Record Nos. 2, 1214).

From April 2012 to April 2013, the Defendant received benefits of KRW 700 to August 8, 2013. On April 20, 2013, the Defendant retired from the Nmedical Credit Consultative Director and the Director General of the R&D on April 20, 2013, and received benefits of KRW 2.2 million monthly from the account of the X Long-term Care Center until December 2014 (Evidence No. 2: 154-1545, No. 392, No. 2392, Sept. 30, 2013). Meanwhile, the Nmedical Credit Union reduced the difference between F&D directors and the Plaintiff’s right to receive benefits of KRW 154 to 2565,00,000 from September 30, 2013 to January 30, 2015 (Evidence KRW 1 to 2561 to 365,6165,765,000).

8) In the prosecutor's office, the defendant was notified of the attendance of the police on February 12, 2015, and the defendant was informed of the defendant that he was present at the police on February 12, 2015, and the defendant stated that "in the country, he was under the period of suspension of the execution of the Medical Service Act." The defendant stated that "in the statement concerning X convalescent, he was reported only to D and received instructions." The case under the investigation in Daegu City may be terminated only due to the violation of the Consumer Cooperatives Act, which could be mistaken for the investigation as an act of violation of the Consumer Cooperatives Act (Evidence 3: evidence record 2480, page 2480), and in fact, Eul was present at the police on February 12, 2015, and stated that X convalescent was the defendant's acceptance to D, and that it was not memory whether he was aware of the defendant's domicile (Evidence 2: Title 1217, page 27).

9. The Defendant recognized that R&D was established and operated by himself/herself, and, in the case of X-Medical Care Hospital, there is no particular difference that may be deemed that N&D was established and operated as the principal agent, unlike R&D members.

(10) In addition to the operation of hospitals, such as R Council members, X convalescent hospitals, and V Council members, Nmedical Credit Union seems to have no business or activity for its members (Evidence No. 1, 234 pages of evidence records).

11. The Defendant and E stated in the lower court that all the facts charged are recognized, and no circumstance exists to suspect the credibility or voluntariness of the confession statement.

(12) On April 10, 2015, the defendant's defense counsel argued that the board of directors resolution on the closure of X convalescent was made on April 10, 2015, which was detained by the defendant, and thus, X convalescent was operated regardless of the defendant's intention. However, the above argument is not persuasive in the fact that the board of directors resolution was made on the sale of the plaintiff's Council members that the defendant had established on the same day (Evidence 7-3)

In addition, the defendant's defense counsel stated that D had ordered the payment of wages and retirement allowances to the FV, etc. who was in charge of original affairs and accounting affairs at Rwon around April 2015 (No. 9). Accordingly, D stated that D had ordered the payment of wages and retirement allowances to the FV, etc. that D had been in charge of the original affairs and accounting affairs at R Council members. If D entered the money, D could actually bear the duty of payment of wages and retirement allowances to the employees as the president of Nmedical Life Consultative Council, but D could bear criminal liability if it was negligent in paying wages and retirement allowances to the employees as the president of N Medical Life Consultative Council. Accordingly, D's above actions are extremely reasonable until R Council members and X convalescent hospitals were closed or sold, and it cannot be deemed that D actually operated the above hospital on the basis thereof.

B. Judgment on Defendant E’s mistake of facts or misapprehension of legal principles

As seen earlier, X convalescent is fully recognized that the Defendant, a non-medical person, has operated jointly with A, so this part of the Defendant’s assertion is without merit.

Meanwhile, the Defendant asserted that he was dismissed from office and did not know about the claim for medical care benefits thereafter. According to the Defendant’s statement of wage and salary income attached to the Defendant’s statement of grounds of appeal on July 25, 2016, the Defendant retired from the X convalescent hospital on May 31, 2014. However, in cases where a part of the crime committed in relation to the blanket crime was partially committed, but the remainder was committed by other accomplices, the Defendant should be liable for the crime against the part that was not involved (see, e.g., Supreme Court Decisions 2001Do513, Aug. 27, 2002; 2010Do927, Jan. 13, 2011; 201Do927, Mar. 16, 2015; 2005Do63065, Apr. 27, 2005; 20600, 2005Da360757, etc.).

This part of the defendant's assertion is without merit. The judgment of ex officio as to defendant E is without merit.

Each of the judgment of the court below rendered against the defendant, and the defendant filed an appeal against all of the judgment of the court below, and this court decided to jointly examine the above appeal cases. Since each of the judgment of the court below against the defendant constitutes concurrent crimes under the former part of Article 37 of the Criminal Act, one of the judgment of the court below should be sentenced in accordance with Article 38(1) of the Criminal Act, and therefore, the part against the

D. As to Defendant A’s assertion of unfair sentencing, the instant crime was committed by the Defendant, a non-medical person, by using the name of the Trade Union, to establish R Council members and X. Yang Hospital, and to induce the patient to a medical institution by exempting the patient from the patient’s own charges of KRW 180 million at R Council members, and to receive medical care benefits of KRW 4.77 million and KRW 2.32 million in operating X convalescent hospital while operating the R Council, and to obtain medical care benefits of KRW 2.32 million in the operation of X convalescent hospital, and by reporting the establishment of a false right to lease on a real estate owned by the Defendant to a public official who reported the establishment of a right to lease on a deposit basis and had him/her keep the right to lease on a real estate register, and the crime was heavier. The Defendant was also sentenced to suspended execution on June 18, 2013 due to a violation of the Medical Service Act, etc.

On the other hand, most of the medical care benefits that the Defendant received from the Health Insurance Corporation are deadly and mistakenly committing a crime. Although it does not seem that the Defendant used most of the medical care benefits received from the Health Insurance Corporation as the operating expenses of hospital, such as medicine expenses, employee benefits, etc., and does not appear to have been individually returned to the Defendant. The Defendant received benefits and rents while operating the aforementioned hospital, but there is no material to deem that the amount is excessive and unfair. The National Health Insurance Corporation seized the Defendant’s Daegu-gu Q&T land and ground building and the 113 902 Ma, Daegu-gu, Daegu-gu, and expressed that the recovery of the medical care benefits that were paid by the Defendant transferred each of the above real estate to the National Health Insurance Corporation would also be recovered. The need to consider equity with the case where a judgment was rendered to violate the Medical Service Act due to the establishment of non-medical personnel hospitals, the crime of false entry in public electronic records, and the crime of exercise of public electronic records, etc.

In full view of all circumstances, including these circumstances, including the defendant's age, character and conduct, environment, motive, means and consequence of the crime, and circumstances that are conditions for sentencing as shown in the records of this case, the sentence imposed by the court below is too unreasonable.

3. Conclusion

Therefore, the part of the judgment of the court below regarding Defendant E has grounds for the above ex officio reversal, and Defendant A’s assertion of unfair sentencing against the judgment of the court of first instance is with merit. Thus, the part of the judgment of the court of first instance concerning Defendants under Article 364(2) and (6) of the Criminal Procedure Act without examining Defendant E’s assertion of unfair sentencing, and the part concerning Defendant E among the judgment of the court of second instance regarding the judgment of the

【The Reasons for the Judgment of the Court) Summary of the facts constituting an offense and evidence. The facts constituting an offense recognized by the court and the gist of the evidence are the same as the entries in each corresponding column of the judgment below, thereby citing them as they are in accordance with Article 369

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

A. Defendant A

1) The establishment of a medical institution by non-medical persons related to the Council members: Articles 87(1)2 and 33(2) of the former Medical Service Act (Amended by Act No. 13658, Dec. 29, 2015) (amended by Act No. 13658, Dec. 29, 2015)

2) The establishment of a medical institution by non-medical persons related to X-X convalescent: Articles 87(1)2 and 33(2) of the former Medical Service Act (Amended by Act No. 13658, Dec. 29, 2015); Article 30 of the Criminal Act

3) The occupation of soliciting patients: Articles 88 and 27(3) of the former Medical Service Act (amended by Act No. 13599, Dec. 12, 2015); and

4) Fraud related to R Council members: Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (amended by Act No. 13719, Jan. 6, 2016; hereinafter the same) and Article 347(1)2 of the Criminal Act (generality)

5) Fraud related to X-X convalescent: Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes and Articles 347(1) and 30 of the Criminal Act (generality)

6) Points of false entry, such as public electronic records: Articles 228(1), 30, and 34(1) of the Criminal Act (Selection of Imprisonment)

7) Occupiation of events, such as false entry and public electronic records: Articles 229, 228(1), 30, and 34(1) of the Criminal Act

B. Defendant E

1) The establishment of a medical institution by non-medical persons related to VFs: Articles 87(1)2 and 33(2) of the former Medical Service Act (Amended by Act No. 13658, Dec. 29, 2015) (amended by Act No. 13658, Dec. 29, 2015)

2) The establishment of a medical institution by non-medical persons related to X-X convalescent: Articles 87(1)2 and 33(2) of the former Medical Service Act (Amended by Act No. 13658, Dec. 29, 2015); Article 30 of the Criminal Act

3) The point of VF frauds related to the VF: Article 347(1) of the Criminal Act (generally, the choice of imprisonment);

4) Fraud related to X-X convalescent: Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes and Articles 347(1) and 30 of the Criminal Act (generality)

5) Aiding and abetting the establishment of each non-medical person’s medical institution: Articles 87(1)2 and 33(2) of the former Medical Service Act (Amended by Act No. 13658, Dec. 29, 2015); Article 32(1) of the Criminal Act

6) Fraudulent aiding and abetting: Articles 347(1) and 32(1) of the Criminal Act (generally, the choice of imprisonment); 2. Legal mitigation (Defendant E)

Articles 32(2) and 55(1)3 of the Criminal Act (as to accessories, offenses of aiding and abetting a violation of each Medical Service Act, and offenses of aiding and abetting a Fraud)

3. Handling concurrent crimes (Defendant A);

The latter part of Article 37 and Article 39 (1) of the Criminal Act (the violation of the Medical Service Act due to the establishment of a hospital by any non-medical person, the crime of false entry into public electronic records, etc., the crime of uttering of false entry into public electronic records, etc., and

4. Aggravation for concurrent crimes; and

A. Defendant A

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 [Violation of the Medical Service Act due to the establishment of a hospital by non-medical persons, the crime of false entry in public electronic records, etc., between the crimes of false entry in public records, public electronic records, etc., the crimes of concurrent crimes in violation of the Medical Service Act due to the establishment of a high source of R with the largest degree of crime quality and circumstances, the aggravated punishment due to the act of soliciting patients, each violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), each crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

B. Defendant E

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 (Aggravation of Concurrent Punishment of Specific Economic Crimes (Fraud)] of the Criminal Act

5. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (General Considerations for the Reasons for two-year punishment in favor of the other party)

6. Suspension of execution (the defendants);

Article 62(1) of the Criminal Act (The grounds for both types of punishment, repeated consideration of favorable circumstances)

Reasons for sentencing

1. Defendant A

The punishment shall be determined as per the order, comprehensively taking into account the various circumstances seen above.

2. Defendant E. The instant crime was committed by the non-medical person by aiding and abetting the non-medical person to establish a hospital under the name of F, AG, CJ, BP, CB, DB, Q, using the name of a non-medical person, and by aiding and abetting the non-medical person to establish a hospital, and by receiving the medical care benefits of KRW 130 million in operating the V, and by receiving the medical care benefits of KRW 2.32 billion in operating the X convalescent, while operating the X convalescent, and by aiding and abetting the non-medical person to receive the medical care benefits of KRW 360 million in operating the FOV.

On the other hand, most of the Defendant have committed a crime against the Defendant. Medical care benefits that the Defendant received from, or aided and abetted the receipt from, the Health Insurance Corporation are large, but excessive medical care was provided. It does not seem that most of the medical care benefits received or aided and abetting the receipt are claimed for medical care benefits, and most of the medical care benefits received or received were used as expenses for hospital operation, such as medicine expenses and employees’ benefits, and do not appear to have been individually returned. The Defendant did not have any criminal record exceeding the same kind of or fine. In the case of X convalescent hospital operated by the Defendant, as seen earlier, considerable part of the

In addition to these circumstances, the punishment as ordered shall be determined by comprehensively taking into account all the circumstances, such as the Defendant’s age, character and conduct, environment, motive, means and consequence of the commission of the crime, and the circumstances after the commission of the crime, etc.

Judges fixed-term

Judge Jeon Soo-soo