[의료법위반][공2021상,582]
The purport of Articles 17(1) and 89 of the former Medical Service Act / In a case where a doctor, etc., without a medical examination of a patient to be directly examined pursuant to Article 17(1) of the former Medical Service Act, indicated the patient as a person subject to the medical examination and issued a written diagnosis, certificate, or prescription, whether the person violates the same provision (affirmative), and whether the same provision applies to a case where the patient is a deceased person who does not actually exist (affirmative)
Article 17(1) of the former Medical Service Act (amended by Act No. 14438, Dec. 20, 2016; hereinafter the same) provides, “If a patient is not a doctor, dentist, or oriental medical doctor (hereinafter “doctor, etc.”) who directly conducted a medical service and conducted a medical examination or examination, but a doctor, etc. is not a doctor, dentist, or oriental medical doctor (hereinafter “doctor, etc.”) and provides a medical certificate, autopsy, certificate, or prescription (including an electronic prescription) to a patient (referring to his/her spouse, lineal ascendant, descendant, or lineal ascendant of his/her spouse), or a district public prosecutor’s office (limited to an electronic prescription) conducting a postmortem examination pursuant to Article 22(1) of the Criminal Procedure Act, the person who violates Article 17(1) of the same Act is punished. This also applies to the case where a patient is in charge of preparing and delivering a medical certificate, written examination, written examination, or prescription to the patient and issuing it to the patient under the former Medical Service Act without permission or issuing it to the patient’s health condition and criminal liability.
Articles 17(1) (see Articles 17(1) and 17-2(1) and 89 (see Article 89 subparag. 1 of the current Medical Service Act) of the former Medical Service Act (Amended by Act No. 14438, Dec. 20, 2016);
Supreme Court Decision 2011Do14690 Decided April 11, 2013 (Gong2013Sang, 903) Supreme Court Decision 2014Do12608 Decided December 22, 2017 (Gong2018Sang, 366)
Defendant
Defendant
Law Firm Green, Attorneys Kang In-chul et al.
Suwon District Court Decision 2019No3357 decided September 24, 2020
The appeal is dismissed.
The grounds of appeal are examined.
1. Article 17(1) of the former Medical Service Act (amended by Act No. 14438, Dec. 20, 2016; hereinafter the same) provides that “If a patient (referring to his/her spouse, lineal ascendant or descendant, or lineal ascendant of his/her spouse) or a public prosecutor of a district public prosecutor’s office (limited to an electronic prescription) who conducts a postmortem examination pursuant to Article 222(1) of the Criminal Procedure Act provides, “A person who violates Article 17(1) is punished by a person who is not a doctor, dentist, or oriental medical doctor (hereinafter “doctor, etc.”) who directly conducted a medical examination or autopsy by engaging in his/her medical service and directly conducted a postmortem examination, or who is not a doctor, etc., other than a doctor, etc., (hereinafter “medical doctor, etc.”) shall be deemed to have prepared and issued a medical certificate, examination report, or prescription (including an electronic prescription) to ensure the patient’s health as a result of the diagnosis or examination by a doctor, etc. 170.1.
2. Examining the reasoning of the lower judgment in light of the foregoing legal doctrine, the lower court, which determined that “the Defendant’s act of preparing a prescription seven times from April 30, 2016 to July 22, 2016 under the name of Nonindicted Party 1, etc., who was unauthorized, issued to Nonindicted Party 2, violates Article 17(1) of the former Medical Service Act,” did not err by misapprehending the legal doctrine on Article 17(1) of the former Medical Service Act, contrary to what is alleged in the grounds of appeal.
3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Park Jung-hwa (Presiding Justice)