The defendant shall be innocent.

의료업에 종사하고 직접 진찰하거나 검안한 의사가 아니면 처방전을 작성하여 환자에게 교부하여서는 아니 된다. 그럼에도 피고인은 2011. 2. 8. 경 피고인이 운영하는 서울 서대문구에 있는 ' 00000의원 ' 에서 B를 직접 진찰하지 않고, 환자로 알게 된 C의 부탁을 받아 B에게 플루틴캡슐 등 전문의약품을 처방한 처방전을 작성하여 C에게 교부하였다 .

2. Summary of grounds for appeal;

On February 8, 2011, the Defendant received a request from C to issue a prescription with respect to B, and made a telephone call to verify various matters necessary for issuing a prescription with respect to C’s mobile phone phone, and issued the prescription of this case. The lower court found the Defendant guilty, in so determining, the lower court erred by misapprehending the legal doctrine or misapprehending the legal doctrine, even though the Defendant did not directly examine, insofar as the Defendant did not directly examine and issue a prescription, since the direct examination under the Medical Service Act regulates only the subject of the diagnosis, and does not regulate the method of medical examination.

3. Determination

A. Relevant legal principles

Article 17(1) of the Medical Service Act provides that “A doctor engaged in the business of medical treatment and who directly conducted a medical examination or who prepared a prescription, etc. shall not be issued to the patient.” This is merely a provision prohibiting a doctor from issuing a prescription without a medical examination by himself/herself, not a provision prohibiting the general public from being issued a prescription without a face-to-face medical examination or without a sufficient medical examination. Therefore, in light of the principle of no crime without the law, in particular, the mere fact that a medical examination was conducted by a telephone under the principle of prohibition of analogical interpretation does not necessarily mean that a “self-examination” or “self-examination” was not conducted (see Supreme Court Decision 2010Do1388, Apr. 11, 2013).

B. Determination as to whether the Defendant did not directly request a telephone examination of B

The following circumstances acknowledged by the evidence duly adopted and examined by the lower court and the lower court, and the Defendant acknowledged that the Defendant did not conduct a face-to-face examination under B, but C on February 201.

8. The Defendant’s hospital visited the Defendant’s hospital, B was friendly by visiting the hospital, B’s name, resident registration number, existing disease, health condition, and symptoms at the time of telephone conversations with B by requesting the Defendant to prescribe and call the drugs of B, and the Defendant stated that the Defendant prepared and issued a prescription that prescribed a summary medication of the ingredients excluding the native medicine upon the age of B’s face. ② The witness, at the court of the lower court, visited the Defendant’s hospital on February 8, 2011 and asked for the issuance of B’s prescription, the Defendant should call the phone with B, and the witness was given a medical examination room for the period of telephone conversations with the Defendant, but the witness was given a medical examination and treatment room for the period of telephone conversations with the Defendant, and the Defendant did not appear to have any evidence that the Defendant was issued with the witness’s oral prescription prior to the examination and delivery of the evidence.

C. Sub-committee

Therefore, the judgment of the court below which found the defendant not guilty under the latter part of Article 325 of the Criminal Procedure Act because the facts charged in this case constitute a case where there is no proof of crime.

4. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows

The summary of the facts charged of this case is as stated in Paragraph (1) of the judgment, and this constitutes a case where there is no proof of facts constituting a crime as stated in Paragraph (3) of the judgment, and thus, it is decided as per Disposition with the decision of not guilty under the latter part of Article 32

Judges Lee Jin-hee

Judges Choi Young-young et al.