(영문) 창원지방법원 2014.11.4.선고 2014고단1270 판결

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Cases

2014 Highest 1270A. Fraud

2014 Highest 1879(combined)b. Fraud aiding and abetting

C. Violation of the Medical Service Act

D. Violation of the Labor Standards Act

E. Violation of the Guarantee of Workers' Retirement Benefits Act

Defendant

1. (a). (c) A

2. A. b. (c) d. B

3. (a)(b)(c) C

4. A. (b) (c) D

Prosecutor

B. Private (prosecution) and scarcity (public trial)

Defense Counsel

Attorney E (for the defendant A)

Law Firm F (for defendant B, C, and D)

Attorney G

Imposition of Judgment

November 4, 2014

Text

1. Defendant A’s imprisonment with prison labor for one year and six months, Defendant B’s imprisonment for one year, Defendant C’s imprisonment for ten months, and Defendant D’s fine for 2,00,000 won, respectively.

2. When Defendant D does not pay the above fine, the above Defendant shall be confined in a workhouse for the period calculated by converting 100,000 won into one day.

3. Provided, That with respect to Defendant C, the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive;

4. To order the defendant D to pay an amount equivalent to the above fine.

Reasons

Criminal facts

[2014 Highest 1270] Defendant B is a doctor who has obtained the doctor’s license in 1981, and operated the above hospital as the head of the hospital in Kimhae-si from around 1998 to February 4, 2014, and Defendant A works as the head of the prime office in the above hospital from around 2003, and managed all employees. Defendant C is a person who has worked as the chief of the radiation company or the chief of the prime office in the above hospital from around June 200, and Defendant D is a person who has worked as an assistant nurse in the above hospital from around January 3, 2010 to February 4, 2014.

1. Fraud;

When the false patients who do not need to receive treatment together with K, nurses, nurse L, assistant nurse M, N, physical clinic P, Q, R, etc. found the above hospital, the Defendants conducted diagnosis as if the patients need to receive treatment, and prepared false medical records as if they were to receive necessary medical treatment or outpatient treatment normally. The Defendants conspired to submit such false medical records to the Victim's Health Insurance Management Corporation while filing a claim for medical care benefits for false patients and receive medical care benefits from the victim.

The Defendants and the above employees stated that Defendant A would introduce a patient to the “patient” against the insurance solicitor, taxi engineer, taxi company, vehicle maintenance company, etc., and then attract false patients. When the aforementioned introductions take advantage of false patients, the Defendants and the above employees would pay KRW 50,000 per patient to the introduction fee. When the aforementioned introductions received such introductions or other route, the above hospital’s entrance and exit and staying out and staying out of the country are free, and when the above patients find a false patient, the above employees explained the method of receiving a large amount of insurance money when the Defendant first consulted with the patient, and explained the method of receiving a large amount of insurance money, and explained the method of receiving a large amount of insurance money, and provided the number of days of hospitalization to the patient at the hospital. Then, Defendant C et al. prepared a diagnosis for the necessity of hospital treatment or outpatient treatment by formally diagnosing the patient at the time of the examination and treatment, as long as there is no need for the medical examination and treatment of the patient at the time of entrance to the patient.

On March 21, 2011, the Defendants entered the hospital at issue, and found that S had a shoulder, etc. at issue; Defendant A was hospitalized to 3 weeks since she was able to see that she had a talk at issue; Defendant C et al.; Defendant C et al., assigned S’s 306 sick room to her hospitalization; and Defendant D et al. were hospitalized for 22 days from her date until 4,11 of the same year; and Defendant D et al. prepared a place of treatment as if she continued to stay in the hospital for the above period, and received the medication and taking medication two times a day, and received the medication and taking medication. However, Defendant C et al., without permission during the hospitalization period; Defendant C et al., submitted to the Service a false request for treatment or taking medication for 30 days during the period of hospitalization; Defendant C et al., al., 2008 on May 14, 2018.

The Defendants conspired with the above employees, from January 3, 2008 to January 20, 2012, the above hospital: (a) 94 false patients, such as S listed in the annexed Table (1) in the above method, submitted to the victim to the Corporation the records that were fabricated as if they had received the necessary medical treatment; and (b) 110,821,430 won was received from the victim Corporation as medical care benefits.

2. Frauding;

The Defendants knew that a large number of patients who were hospitalized in the hospital due to the public invitation as stated in the above paragraph (1) do not need to undergo hospital treatment, and that they would be pretended to have received hospital treatment for the purpose of receiving the insurance money without permission or for the purpose of receiving the insurance money from time to time unless they were hospitalized.

Nevertheless, on March 15, 201, the Defendants shared their roles as indicated in the foregoing paragraph 1, and hospitalized for 21 days from the date of the date of the arrival of T to April 4, 201 of the same year, and issued to T a certificate of entry release stating that T received normal hospitalized treatment on April 4, 2011. However, on the following day of the hospitalization, T did not reside in the above hospital during the hospitalization period only once for one visit to issue the certificate of the payment of hospital expenses and the issuance of the entrance discharge on the date of the above discharge. Since T submitted the false certificate of entry discharge issued as above to the victim Samsung Fire Co., Ltd., which was purchased by the Defendant, to whom the Defendant subscribed to the insurance company, and its member acquired KRW 1,560,760 on April 1, 201, and KRW 75, 190 on May 75, 2011 from the victim Samsung Fire Co., Ltd.

In collusion with the above employees, between July 13, 2009 and January 5, 2012, the Defendants: (a) issued 100 false patients, such as T, etc. listed in the attached Table (2) in the above method, a written confirmation of hospitalization and discharge; (b) submitted it to each victim insurance company to which they have joined, thereby allowing them to receive KRW 237,019,819 in total as insurance money; and (c) assisted the act of defrauding 100 insurance money, including T, by allowing them to receive KRW 237,019,819 as insurance money.

3. Violation of the Medical Service Act;

No medical person shall prepare a false medical record, etc. or make an additional entry or acceptance intentionally differently from the fact.

Nevertheless, even though the Defendants did not actually undergo a medical examination or treatment at the time and place as stated in the above Paragraph 1, the Defendants prepared a false medical examination or treatment book as if they were in a sick room and received a medical examination or treatment.

As a result, Defendant B and other Defendants, who are medical personnel, conspired to prepare false medical records, etc.

[2014 Highest 1879]

The defendant is an employer who employs 12 full-time workers in Kimhae-si H and manages the members of the Gnean department.

From February 4, 2013 to December 8, 2013, the Defendant did not pay KRW 46,705,298 in total, such as wages, shutdown allowances, and retirement allowances, to be paid to employees who retired from the said workplace, within August 2013, and KRW 7,632,580, such as wages and shutdown allowances, until September 2013, without agreement between the parties on the extension of the due date for payment, within 14 days from the date of the occurrence of the cause for payment, as stated in the detailed statement of personal overdue money and valuables in the attached Form, and did not pay KRW 46,705,298 in total, such as wages, shutdown allowances, and retirement allowances, to be paid to the nine employees, within 14 days from the date of the occurrence of

Summary of Evidence

[2014 Highest 1270]

1. Defendants’ respective legal statements

1. An interrogation protocol of M by prosecutors;

1. The prosecutor's statement to K;

1. Each police statement about L, P, and R;

1. V self-statements;

1. Records of seizure and the list of seizure;

1. Investigation report (related to listening to telephone statements), request for cooperation in investigation affairs, investigation report (specific amount and attachment of data), false patients (insured) with 109 false records, records of transfer, investigation report (verification of confirmation of related judgment), details of revision to the list of crimes [2014 Highest 1879] on July 2, 2012;

1. Defendant B’s partial statement

1. Some of the suspect interrogation protocol of Defendant B by prosecution

1. Each police statement of U and W;

1. A written calculation of average wages and retirement allowances;

1. An investigation report (to hear the statement of the petitioner representative);

Application of Statutes

1. Article applicable to criminal facts;

(a) Defendant A, C, and D: Article 347(1) of the Criminal Act; Article 30 of the Criminal Act; Articles 347(1), 32, and 30 of the Criminal Act; Articles 88 and 22(3) of the Medical Service Act; Article 30 of the Criminal Act (including preparation of false medical records, etc.)

B. Defendant B: Article 347(1) of the Criminal Act; Article 30 of the Criminal Act; Articles 347(1), 32, and 30 of the Criminal Act; Articles 88 and 22(3) of the Medical Service Act; Article 30 of the Criminal Act; Articles 109(1) and 36 of the Labor Standards Act; Articles 44 subparag. 1 and 9 of the Guarantee of Workers’ Retirement Benefits Act (a point where retirement allowances are not paid)

2. Competition;

Defendant B: Articles 40 and 50 of the Criminal Act

3. Selection of punishment;

Imprisonment with prison labor for Defendant A, B, and C, and for Defendant D, each choice of fine for negligence

4. Aid and mitigation;

A. Defendant A, B, and C: Articles 32(2) and 55(1)3 of the Criminal Act (with respect to each crime of aiding and abetting fraud)

B. Defendant D: Articles 32(2) and 55(1)6 of the Criminal Act (with respect to the crime of aiding and abetting fraud)

5. Aggravation for concurrent crimes; and

Defendants: former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act

6. Detention in a workhouse;

Defendant D: Articles 70 and 69(2) of the Criminal Act

7. Suspension of execution;

Defendant C: Article 62(1) of the Criminal Act (The consideration of favorable circumstances among the reasons for sentencing below)

8. Order of provisional payment;

Defendant D: Defendant D: The reasoning for sentencing under Article 334(1) of the Criminal Procedure Act is that the Defendants, who are engaged in the medical business, are hospitalized by attracting patients who do not require hospitalization in a fraudulent way, and obtained medical care benefits from the Korea National Health Insurance Corporation by means of making false medical records, etc.; as above, aiding and abetting the victims of hospitalized patients to obtain insurance money from the victim insurance companies; and the amount of fraud is substantial; insurance fraud benefiting illegal profits by abusing the national health insurance system and insurance contract, such as the crime of this case, undermines the purpose of the insurance system, i.e., reasonable diversification of risks, and damages to many subscribers, thereby impairing the foundation of the insurance system. In light of the law of the crime of this case and the circumstances before and after the crime of this case, the criminal liability is heavy.

However, the Defendants recognized all the crimes of 2014 senior group 1270 as indicated in the judgment below in this court. Defendant B recognized the facts of the crimes of 2014 senior group 1270, senior group 2014 senior group 2014 senior group 1879 as indicated in the judgment of the court below, Defendant B paid all the money by deception to the Korea National Health Insurance Corporation, and deposited approximately KRW 100,000 for victims insurance companies, and part of the money by defraudation related to the fraud was recovered, Defendant B, C, and D were first offenders without any criminal power, and Defendant A has no specific criminal power, other than once a fine for this crime, takes into account the circumstances leading to the occurrence of each crime of this case and the degree of participation in the crime, the sum of wages unpaid to Defendant B, etc., Defendants’ health condition, personality, behavior, environment, etc., as stated in the judgment below.

Judges

Judges and Tax Judges

Attached Form

A person shall be appointed.