[2] The meaning of "for the purpose of profit-making" under Article 67 of the former Medical Service Act, and whether an act of massage must necessarily coincide with the person to whom the economic benefit accrued or the person to whom the business was to be managed (negative)

[3] Where the Constitutional Court rendered a decision of unconstitutionality as to Article 3 of the former Marine Rules, whether the act of massage without recognition constitutes an act in itself which does not constitute a crime (negative)

[4] The purpose of Article 25 of the former Medical Service Act and the method of determining the contents of medical practice

[5] The case holding that in a case where a pharmacist only acquired a license for preparing herb drugs and another person, other than an oriental medical doctor, prepared and sold herb drugs, the above act constitutes a violation of the former Act on Special Measures for the Control of Public Health Crimes since it constitutes "when a person, other than an oriental medical doctor, conducts medical practice for profit-making purposes"

[2] "Profit-making purpose" under Article 67 of the former Medical Service Act (amended by Act No. 8007 of Sep. 27, 2006) refers to the purpose of acquiring a wide economic profit, and there is no need for a person engaged in massage to coincide with the person who has reverted economic interest or the person who has managed the business.

[3] Article 3 of the former Rules on Marine (amended by Ordinance of the Ministry of Health and Welfare No. 153, Jun. 16, 2000) which limit persons who can be recognized as a Marine to "persons who are the blind" (amended by Ordinance of the Ministry of Health and Welfare, No. 2003Hun-Ma715, May 25, 2006) provides that the Constitutional Court's decision of unconstitutionality (amended by Ordinance of the Ministry of Health and Welfare, No. 2003Hun-Ma715, Sept. 27, 2006) has been made to punish those who engage in massage for profit-making purposes without being accredited, and Articles 67 and 61 of the former Medical Service Act (amended by Act No. 8007, Sept. 27, 2006) which punish those who engage in massage for profit-making purposes shall not be deemed as unconstitutional or unlawful.

[4] According to Article 25 of the former Medical Service Act (amended by Act No. 8007 of September 27, 2006), no person, other than a medical person, is allowed to perform medical practice. Medical practice refers to an act of diagnosis, autopsy, prescription, medication, or surgery with the experience and function based on the professional knowledge of medical science. Medical practice requires highly professional knowledge and experience, and at the same time is closely related to the life, body, or public health of a person. Medical Service Act provides strict requirements for qualifications to be a medical person, and prevents a person, other than a medical person from doing medical practice by allowing him/her only to do so and preventing the general public from doing so. However, since there is no legal provision that provides for the definition of medical practice, it is inevitable to determine it according to specific matters, and ultimately, it can be accompanied by the development of medicine and social development, and thus, it is possible for a person, other than a medical person, to engage in medical practice or other general public health care.

[5] The case holding that in case where a pharmacist only acquired the qualification for oriental medicine preparation and performed diagnosis by a person who is not an oriental medical doctor, and instead of an oriental medical doctor, after examining the connection of a patient, asking specific symptoms, etc., and prepared and sold oriental medicine, the above act constitutes "when a person, other than an oriental medical doctor, engages in oriental medicine for profit," as provided in Article 5 of the former Act on Special Measures for the Control of Public Health Crimes (amended by Act No. 4102 of Apr. 11, 2007), and thus, even if the penal provision under Article 38 of the former Pharmaceutical Affairs Act (amended by Act No. 8365 of Apr. 11, 2007), it cannot be punished for violation of the former Act on Special Measures for the Control of Public Health Crimes, even if it was newly established

1. As to the ground of appeal on the violation of the Medical Service Act

A. Article 61 of the former Medical Service Act (amended by Act No. 8007, Sep. 27, 2006; hereinafter “former Medical Service Act”) provides that a person who intends to be a inseminator shall obtain recognition from the competent Mayor/Do Governor (paragraph (1)); a inseminator accredited may, notwithstanding Article 25, engage in massage business (paragraph (2)); and the recognition of inseminator, etc. shall be prescribed by Ordinance of the Ministry of Health and Welfare (paragraph (4). Article 67 provides that a person who performs massage for profit without obtaining recognition of his/her qualifications under Article 61(1)5 shall not be subject to punishment; see, e.g., Supreme Court Decision 200Do500 Decided March 3, 2008; hereinafter “former Medical Service Act”); 200Do55000 Decided on his/her own or by promoting the use of his/her blood pressure or mass treatment; 2000Do50000, supra; 2000 Ga25, etc.

In addition, "for the purpose of profit-making" under Article 67 of the former Medical Service Act refers to the purpose of obtaining wide economic benefits, and there is no need for a person who engages in massage to coincide with the person to whom the economic benefits accrue or the person to whom the economic benefits accrue

On the other hand, Article 3 of the former Rules on Marine that limits a person who is entitled to recognition of qualification as a Marine to "the blind" (the Constitutional Court Order 2003Hun-Ma715, May 25, 2006, etc.) is unconstitutional, and Article 67 and Article 61 of the former Medical Service Act that punishs a person who performs massage for profit without recognition of qualification does not constitute unconstitutional, or the act of massage of an unqualified person is not illegal, and the recognition of qualification by the Mayor/Do Governor for becoming a Marine under Article 61 of the former Medical Service Act is not given to a defendant 2 and 3 who has not been accredited, and therefore, it cannot be deemed that the act of massage without recognition of qualification does not constitute a crime (see Supreme Court Decision 2007Do355, Apr. 12, 2007).

Examining the evidence adopted by the court of first instance by the court below in light of the above legal principles and the records, Defendant 1 recommended the patients who were within the first floor of Chinese pharmacy building to prepare herb drugs, and undergo treatment of active satiss on the third floor. Defendant 2 and 3, who did not obtain Defendant 1’s qualification as an employee, made the patients who were in the third floor of Defendant 1’s satisfying to the bed satisfy, cut the satfy with the floor, cut the satfy, satfry, satfes, and satfes, etc., using the satfry and the bones, and applied physical procedures by using the satfry, kne, kne, and satfs, etc., to the patients who were within the first floor of Chinese pharmacy building, and did not have any violation of the rules of evidence rules, and there was no violation of the rules of evidence rules, such as the promotion of free satisfy treatment.

B. Article 16 of the Criminal Act provides that an act of misunderstanding that one's act does not constitute a crime under the law shall not be punishable only when there are justifiable grounds for misunderstanding does not mean simple legal sites, but it is generally accepted that it does not constitute a crime under the law in general, but if there are justifiable grounds for misunderstanding of misunderstanding, it shall not be punishable (see Supreme Court Decision 2005Do160, Mar. 11, 2005).

Defendant 1 obtained a certificate of qualification as a sports leader of class 3 under Article 24 of the Enforcement Decree of the National Sports Promotion Act on January 27, 1995, and there is no provision on the scope of duties and restriction of active sports leader. Defendant 2 and 3 committed the above acts under Defendant 1’s instruction and did not receive the comments separately. Thus, even if the Defendants are mistaken that the above acts were not committed, it cannot be said that there was a justifiable ground for mistake under the above circumstances cited by the Defendants.

2. As to the ground of appeal on the violation of the Act on Special Measures for the Control of Public Health Crimes

Article 25 of the former Medical Service Act provides strict requirements for qualifications for medical personnel, and aims to prevent risks to human life, body, or general public health by providing medical treatment services only to medical personnel and by prohibiting the general public from doing so, and by providing medical treatment services to prevent or treat diseases. As such, medical practice by a medical personnel requires highly professional knowledge and experience, and at the same time, closely related to human life, body, or public health, the Medical Service Act provides strict requirements for qualifications for medical personnel. It is also intended to prevent risks to human life, body, or general public health (see, e.g., Supreme Court en banc Decision 200Da19748, Apr. 19, 200). However, there is no legal provision stipulating the definition of medical practice, and ultimately, it can only be changed depending on specific matters, and, i.e.,, medical development and social development, it should be determined by the Supreme Court en banc Decision 200Da14781, Apr. 16, 201.

Examining the evidence adopted by the court of first instance by the court below in light of the above legal principles and records, the court below is just in holding that Defendant 1, not an oriental medical doctor, merely acquired the qualification for preparation of oriental medicine as a pharmacist, conducted diagnosis of illness or symptoms by examining the connection of patients who wanted to Chinese pharmacy and examining the symptoms by asking specific symptoms, etc., and that he prepared and sold oriental medicine; and the above act by Defendant 1 constitutes a case where a person, other than an oriental medical doctor, engages in oriental medicine for profit as provided in Article 5 of the former Act on Special Measures for the Control of Public Health Crimes, is a case where a person, other than an oriental medical doctor, engages in oriental medicine as a business

The Supreme Court precedents pointed out by Defendant 1 in the grounds of appeal are inappropriate to be invoked in the instant case, contrary to the instant case.

Article 38 of the former Pharmaceutical Affairs Act (amended by Act No. 8365 of Apr. 11, 2007; hereinafter “former Pharmaceutical Affairs Act”) provides that a pharmacy founder shall observe matters necessary for establishing distribution systems of drugs, etc. and maintaining order in selling them under the conditions as prescribed by Ordinance of the Ministry of Health and Welfare. Article 76(1) of the former Pharmaceutical Affairs Act provides that a person who violates the provisions of Article 38 shall be punished. As one of the matters to be observed by a pharmacy founder for establishing distribution systems and maintaining sales order of drugs, etc., one of the diagnosis and selling over-the-counter drugs shall be conducted; the sale of over-the-counter drugs shall be notified of the fact that a specialized pharmacy of a specific disease is a pharmacy; the sale of over-the-counter drugs through health consultation for the purpose of diagnosis; the sale of such drugs to a patient; the sale of such drugs to a patient by taking advantage of the patient’s condition by using machinery, apparatus, etc. is prohibited under Article 15(1)5 of the former Pharmaceutical Affairs Act (amended by Ordinance of the Ministry of the Ministry of Health and Welfare.

3. As to the issue of unfair sentencing

In this case where a minor punishment is imposed against the Defendants more than ten years of imprisonment, the reason that the amount of punishment is unreasonable is not a legitimate ground for appeal.

4. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Nung-hwan (Presiding Justice)