2. The costs of appeal shall be borne by the Plaintiff.

The court's explanation on this part is identical to the corresponding part of the judgment of the court of first instance (Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Summary of the plaintiff's assertion

A. Non-existence of the grounds for the instant disposition

On February 14, 2013, the Plaintiff confirmed the condition of the patient in currency with the patient outside of the hospital and ordered Nonparty 1, an assistant nurse, to provide a prescription only after entering the details of the prescription in accordance with the Plaintiff’s instructions. Accordingly, the Plaintiff’s act is a lawful medical practice that does not constitute a case where a person, other than a medical practitioner, has engaged in a medical practice.

On the other hand, on February 21, 2013, the Plaintiff issued a prescription to Nonparty 3, Nonparty 4, Nonparty 5, and Nonparty 6 on the other hand.

(b) deviation from and abuse of discretionary authority;

In light of the fact that there are circumstances to consider the motive of the Plaintiff’s act of violation, the fact that the content of the act of violation is minor, the hospital operated by the Plaintiff received a disposition of penalty surcharge in lieu of 60 days of business suspension from the Cheongju market, and the continued voluntary activities of the community, etc., the instant disposition is unlawful by abusing and abusing discretion.

3. Determination on the legitimacy of the instant disposition

(a) Relevant statutes;

[Attachment 1] The entry is as follows.

B. Determination as to the existence of the grounds for the instant disposition

1) Specific grounds for the disposition

Before the judgment on the existence of the instant disposition, this paper examines what specific violations the Plaintiff dispute the existence of the grounds for disposition.

Of the instant dispositions stated in the evidence No. 1 (written administrative disposition), the part falling under Articles 66(1)5 and 27(1) of the former Medical Service Act (amended by Act No. 11748, Apr. 5, 2013; hereinafter “former Medical Service Act at the time of the instant violation”); and the part falling under Article 66(1)5 and the main sentence of Article 27(1) of the former Medical Service Act (amended by Act No. 11748, Apr. 5, 2013; hereinafter “former Medical Service Act”) concerning the Plaintiff’s violation of the instant disposition, is comprehensively indicated as “the date and time from February 14, 2013 to February 21, 2013,” and the patient subject to prescription issuance as “non-party 3, 4, 2000,” and “non-party 2, 213, 2013.”

Therefore, this decision is based on the premise.

2) As to the direction to issue a prescription on February 14, 2013

A) Relevant legal principles

Article 27(1) of the former Medical Service Act allows only medical persons to perform medical practice, and even if a medical person is a licensed medical person, the licenseless medical practice is strictly prohibited. Here, “medical practice” refers to preventing or treating diseases caused by diagnosis, autopsy, prescription, medication, or surgical surgery with the experience and function based on medical expertise, and other acts that may cause harm to public health and sanitation if not performed by a medical person. Furthermore, “the risk of harm to public health and hygiene if performed by a medical person,” is sufficient to cause abstract risk, and thus, it cannot be said that there is no harm to public health and sanitation solely on the ground that there is no specific risk to a patient (see, e.g., Supreme Court Decision 2017Do19422, Jun. 19, 2018).

The main text of Article 17(1) of the former Medical Service Act provides that “no person, other than a doctor engaged in the business of medical treatment, who directly conducted a medical examination, shall prepare a prescription and deliver or dispatch (limited to an electronic prescription) a prescription to a patient.” As such, a prescription, etc. provides that no person, other than a doctor who directly conducted a medical examination, shall issue a prescription, etc., of a patient. The purpose of the prescription, etc. lies in proving a doctor’s decision on the result of the medical examination and serving as a evidence to prove a person’s health condition and to determine his/her civil and criminal liability. Therefore, only a doctor who directly conducted a medical examination to ensure accuracy and objectivity (see Supreme Court Decision 96Do101

It is reasonable to view that the facts recognized in the judgment of the relevant criminal case cannot be recognized in the relevant civil or administrative case, unless there are special circumstances (see Supreme Court Decision 80Nu13, Jan. 27, 1981, etc.) since the facts acknowledged in the judgment of the relevant criminal case are material evidence in the civil or administrative litigation even though they are not detained in the original civil or administrative litigation (see Supreme Court Decision 80Nu13, Jan

B) the board;

Examining the following circumstances in light of the aforementioned legal principles, which can be recognized by the overall purport of Gap evidence Nos. 2, 3, 5, 8, 16, Eul evidence Nos. 1, 5, and 6 and evidence Nos. 2(1) of the former Medical Service Act, the plaintiff, who is a medical person, under Article 2(1) of the former Medical Service Act, is not a medical person under the above Act, but a medical person under Article 80(2) of the former Medical Service Act and each subparagraph of Article 2(1) of the former Rules on Nursing and Medical Care Services (amended by Ordinance of the Ministry of Health, Welfare and Family Affairs No. 10, Apr. 15, 2008).

① On December 2, 2016, the Cheongju District Court rendered a judgment of suspension of sentence on the crime that “the Plaintiff had Nonparty 1, the assistant nurse of the hospital he operated on February 14, 2013, deliver a prescription to Nonparty 2, Nonparty 7, and Nonparty 8, the Plaintiff, who was the assistant nurse of the hospital he operated, to the Plaintiff’s non-party 2, Nonparty 7, and Nonparty 8, the Plaintiff was recognized as violating Articles 91, 89, and 17(1) of the former Medical Service Act, and was sentenced to a judgment of suspension of sentence of punishment (a fine of KRW 2 million, a day of detention in the workhouse and a day of detention in the workhouse), and the said judgment became final and conclusive. Although the applicable provisions of the criminal judgment differs from the disposition in this case, it can be acknowledged that the principal agent who delivered a prescription to Nonparty 2, etc. on February 14, 2013, issued the prescription to Nonparty 1, and that the Plaintiff issued the prescription to Nonparty 1.

② On February 14, 2013, Nonparty 1 received the investigation into the above criminal judgment, and stated that “When the Plaintiff entered the facility deposit, Nonparty 2, etc.: (a) requested the Plaintiff to provide the same prescription as that of the Plaintiff before the Plaintiff; (b) he/she provided the Plaintiff with telephone, and accordingly, issued the medical prescription to the patient at the same time; and (c) did not make any statement as to whether the Plaintiff directly calls with the three patients including Nonparty 2. According to the above statement by Nonparty 1, Nonparty 1, the Plaintiff did not appear to have issued the previous medical prescription code by referring to the name and quantity of the medicine to be prescribed by the Plaintiff; and (d) Nonparty 1 issued the previous medical prescription code by referring to the name and quantity of the medicine to be prescribed by the Plaintiff; and (e) Nonparty 2 did not appear to have issued the previous medical prescription code by referring to the name and quantity of the medicine to be prescribed by the Plaintiff; and (e) Nonparty 1 did not appear to have issued the prescription to the Plaintiff at the time of the prescription.

③ On February 14, 2013, in the course of the investigation, the Plaintiff stated as follows: “At the time of Nonparty 2’s request, Nonparty 1 asked Nonparty 1 to check the patient’s condition by telephone and instruct him to issue a prescription in the same way as the transfer,” with respect to the process of preparing and issuing a prescription for three persons, including Nonparty 2, etc.: (a) on the basis of the foregoing investigation, the Plaintiff stated as follows: (b) “I asked the patient’s status directly by telephone and without any big change.” However, the Plaintiff did not mention whether the Plaintiff directly confirmed the three conditions, including Nonparty 2, etc. even by telephone. In addition, even according to the Plaintiff’s statement, the Plaintiff’s order to Nonparty 1 is merely “the preparation and issuance of prescription in accordance with the previous medical record,” rather than the detailed direction for preparing and issuing a prescription. Therefore, it is difficult to see that Nonparty 2, etc., including Nonparty 2, directly prepared and issued the patient’s prescription and the patient’s disease.

④ At the time of February 14, 2013, the hours required from Nonparty 2, etc. to the medical treatment hours to Nonparty 2, etc., and from Nonparty 2, to Nonparty 6, to Nonparty 7, to Nonparty 8, to which Nonparty 8 did not change each hour (in the case of a patient who actually provided medical treatment at a hospital, at least 5 minutes are required in the case of a patient who actually provided medical treatment at the hospital). In light of these circumstances, it is difficult to view that the Plaintiff outside the hospital, while directly communicating with Nonparty 2, etc. at the time of February 14, 2013, it was difficult to view that the Plaintiff provided substantial medical treatment while directly communicating with Nonparty 2, etc., and even if the medical treatment was performed by telephone as alleged by the Plaintiff, it appears that only Nonparty 1 was given a very formal form, and that, as seen earlier, Nonparty 1 only instructed “to prepare and issue a prescription in accordance with the previous medical prescription.”

⑤ The Plaintiff’s medical clinic of ○○○ Mental Health Doctor was imposed a penalty surcharge of KRW 2,6250,000 in lieu of a business suspension period of 60 days on the same violation as the instant disposition by the Cheongju City Mayor. The Plaintiff did not dispute the instant disposition separately.

Therefore, the part concerning the prescription issued to three non-party 2, etc. on February 14, 2013 among the disposition of this case is judged to exist lawfully, and thus, the plaintiff's allegation in this part against this is rejected.

3) On February 21, 2013, as to the direction to issue a prescription on February 21, 2013

The evidence Nos. 2 and 4 (a factual confirmation, a confirmation, and a factual confirmation) states to the effect that “the plaintiff (attached Form 2) issued an extra medical prescription to four patients, including Nonparty 3, etc. in his/her absence, as described in No. 3, 4, 5, and 7)” is the plaintiff.

However, comprehensively taking account of the following circumstances, which can be recognized by the respective descriptions of No. 16, No. 16, No. 2, and No. 4, and the purport of the whole pleadings, it is difficult to recognize that the respective descriptions of No. 2 and No. 4 are insufficient, and thus, it is difficult to consider that the Plaintiff made four patients, including Nonparty 3, including Nonparty 3, to prepare and deliver an out-of-the-counter prescription in the absence, and there is no other evidence to acknowledge otherwise.

① The fact-finding certificate (including medical benefits) signed and sealed by the Plaintiff includes all the facts pertaining to the claim for violation of the standards for calculating the medical examination fees (excluding medical benefits) between July 16, 2013 and September 24, 2013, the Plaintiff’s claim for violation of the standards for calculating the hospitalization fees (including medical benefits) between May 8, 2014 and June 10, and the fact-finding claim (including medical benefits) over 116 times, including October 15, 2013. Furthermore, the confirmation document and the fact-finding certificate (Evidence B No. 4) prepared by the Plaintiff does not specifically specify the patient subject to the issuance of the prescription in the process of preparation of each of the above facts-finding certificates. Considering this, there is no possibility that the Plaintiff could not accurately confirm the violation in the process of preparation of each of the above facts (attached Form 2 3, 4, 5, and 7).

② During the investigation process, Nonparty 1 stated that “the prescription against Nonparty 3, etc. was prepared and issued after treatment by the Plaintiff.” As to the process of preparing evidence Nos. 2 and 4, Nonparty 1 stated only the name and amount of daily receipt and entered four persons, including Nonparty 3, as a patient subject to a prescription issued by himself/herself without confirming the set of records, and based on this, Nonparty 1 was prepared by the Plaintiff. As a result of the last confirmation, four persons, including Nonparty 3, etc., who were issued a prescription issued on February 21, 2013, were the patient who actually was issued the prescription by the Plaintiff. The content of Nonparty 1’s explanation to the effect that the content of the evidence Nos. 2 and 4 was high in credibility by considering that the content of the evidence Nos. 1 was specific and consistent with the content of the medical record submitted by the Plaintiff.

③ A judicial police officer who has conducted an investigation of violation of the Medical Service Act by the Plaintiff and Nonparty 1, who was investigating the violation of the Medical Service Act by the Plaintiff and Nonparty 1, conducted an investigation into four persons, including Nonparty 3, etc. on February 21, 2013, according to the prosecutor’s direction on the confirmation of the issuer of the prescription. In that process, four persons, including Nonparty 3, etc., including Nonparty 3, were not confirmed to have been issued a prescription by Nonparty 1 on February 21, 2013 (the fact that Nonparty 3, Nonparty 6 was issued a prescription by the Plaintiff, and Nonparty 5, and Nonparty 4 was not confirmed to have been issued a prescription by the Plaintiff). Accordingly, the judicial police officer presented the Plaintiff’s opinion on the violation of the Medical Service Act by the Plaintiff on February 21, 2013 (no suspicion). In fact, the Prosecutor did not prosecute this part of the charge.

④ In the process of the instant disposition, the Defendant did not examine the four non-party 3, etc. in order to verify the issuer of the prescription slip issued on February 21, 2013, in addition to the receipt of the Plaintiff Nos. 2 and 4 from the Plaintiff.

Thus, the part of the disposition of this case, which was written and delivered to four non-party 3, etc. on February 21, 2013, is unlawful as it is based on the ground that there is no ground for disposition. Thus, this part of the plaintiff's assertion pointing this out is with merit.

4) Sub-committee

Therefore, the part on the preparation and issuance of prescriptions to three non-party 2, etc. among the grounds of the instant disposition is recognized, and the part on the preparation and delivery of prescriptions to four non-party 3, etc. on February 21, 2013 is not recognized. However, even if some of the grounds of the instant disposition are lawful in the case of an administrative disposition, where the legitimacy of the disposition is recognized as the grounds of other disposition (see Supreme Court Decision 2010Du15674, Dec. 9, 2010, etc.).

Therefore, this paper examines whether the legitimacy of the disposition of this case can be recognized only with the above recognized grounds for disposition.

4. Determination on whether or not to deviate from or abuse discretionary power

The court's explanation on this part is the same as the statement, except for the case where "the circumstances alleged by the plaintiff" in Section 10 among the corresponding parts of the judgment of the court of first instance (Articles 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act are stated as "the circumstances alleged by the plaintiff and the fact that the grounds for disposition on the preparation and issuance of prescription for four non-party 3, etc. of the disposition of this case are not recognized on February 21, 2013." Thus, it is cited as it is in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

5. Conclusion

The disposition of this case is legitimate, since the grounds for the disposition of this case are partially recognized, and the determination of the disposition against it is appropriate. Therefore, the plaintiff's claim is dismissed as there is no reason. Accordingly, the judgment of the court of first instance is justifiable in conclusion. Therefore, the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Goeopop (Presiding Judge)