Statutory Provision Punishing Both Sides in Unlicensed Medical Practice

[19-2 KCCR 520, 2005 Hun-Ka 10, Nov. 29, 2007]

In this case, the Constitutional Court declared unconstitutional the provisions in the Special Act on the Control of Public Health Crimes

which punished the business proprietor together with the employee in the same jail sentence when an employee did unlicensed medical practice.

Background of the Case

The Special Act on the Control of Public Health Crimes (hereinafter, ‘the statutory provision at issue in this case’) provides the business proprietor shall be punished together with the employee in the same jail sentence when an employee did unlicensed medical practice for business. The defendant of the referred case was indicted with his employee (the punishment of stay of execution having become final in the first instance) due to the employee's unlicensed medical practice and got the decision of "not guilty" in the first instance. However, the prosecutor appealed and Seoul District Court for Western Region referred on the statutory provision at issue in this case to the Constitutional Court sua sponte.

Summary of the Opinions

The Constitutional Court declared the statutory provision at issue in this case unconstitutional (8 Unconstitutional : 1 Constitutional) and the reasons are as follows.

1. Summary of Unconstitutionality Opinion by four Justices

The statutory provision at issue in this case provides the business proprietor shall be punished together with the employee in the same jail sentence automatically when an employee did unlicensed medical practice for business regardless of whether there is any blamable act done by the proprietor (for example, the proprietor participated in the employee's crime or the proprietor was negligent in the guidance and superintendence over the employee) or not.

For all that, the statutory provision at issue in this case should not be interpreted different from the clear meaning of the text in the statutory provision adding the requirement of "in the case when the proprietor's negligence on the assignment and superintendence(and other cases where the business proprietor should take the responsibility) could be found

concerned with the employee's crime." That is because it goes beyond the boundary of textual interpretation and cannot be allowed.

Therefore, needless to judge on the statutory penalty itself, the statutory provision at issue in this case is unconstitutional because it is against the basic principle of 'anyone with no responsibility cannot be criminally punished' by imposing criminal penalty on other person's crime regardless of whether there exists responsibility or not.

2. Summary of Unconstitutionality Opinion by four other Justices

The statutory provision at issue in this case provides the business proprietor shall be punished together with the employee in the same jail sentence automatically when an employee did unlicensed medical practice for business without having additional requirements such as the proprietor's participation in the employee's unlicensed medical practice or the proprietor's negligence in the assignment and superintendence over the employee. Namely, it provides as if the business proprietor with no responsibility over the employee's crime could be punished.

Further, although the statutory provision at issue in this case is to punish the business proprietor who is negligent in the assignment and superintendence of the employee, punishing the proprietor with just a negligence same as a main offender with intent cannot be understood as imposing criminal punishment proportionate to each person's own responsibility. However serious the unlicensed medical practice is in its illegality, punishing 'the negligence on the assignment and superintendence over the employee' with 'lifetime imprisonment or imprisonment of two years or more' is excessively heavy statutory penalty compared with the responsibility.

Therefore, the statutory provision at issue in this case is against the Principle of Proportionality between the criminal penalty and responsibility not only by punishing the business proprietor with no responsibility on the employee's crime but also by providing excessively heavy statutory penalty compared with the person's responsibility.

3. Summary of Dissenting Opinion of One Justice

The statutory provision at issue in this case provides in the text that

only the business proprietor whose employee infringes the law in his/her 'business.' Hence, interpreting the provision like consistent precedent of the Supreme Court that the provision is applied only to the case when the business proprietor is negligent in the assignment and superintendence over the employee would be 'the interpretation conforming to the Constitution' (die verfassungskonforme Auslegung) which is allowed within the boundary of textual interpretation. When we set this as a premise, the statutory provision above is not against the principle of responsibility. Considering the importance of people's health and responsibility from the status of business proprietor, the business proprietor's criminal liability from the negligence in the assignment and superintendence over the employee could be estimated to be equivalent to that of the actor, the employee. Hence, punishing the business proprietor together with the employee with the same statutory punishment is neither going beyond the limit of legislative discretion nor violating the Principle of Proportionality between the responsibility and criminal penalty.

Aftermath of the Decision

Before this decision, there were several decisions in which the Constitutional Court declared the provision of aggravated penalty in Special Acts unconstitutional due to the fact that their statutory penalty was to heavy. However, this decision is the first decision that declared unconstitutional the provision which punished the business proprietor with the same jail sentence together with the offender, the employee, applying the principle of responsibility in criminal penalty of "no responsibility, no criminal penalty." This decision seems to give some effects to the decisions on the various types of provisions punishing both sides(Seoul Economy Daily, Hankook Economy Daily, Seoul Daily, JoongAng Daily and Hankyoreh Daily, on December 10, 2007).