In a case where Defendant A, a dentist, was indicted for violation of the Medical Service Act on the ground that he instigated Defendant B, a assistant nurse, to perform the 's surgery' against the patient’s disease, the case holding that this procedure constitutes medical practice as part of the treatment act requiring the experience and function based on medical expertise, and that Defendant B’s act of performing the above procedure is deviating from the scope of the assistant nurse’s work, and it cannot be included in the assistant nurse’s medical practice.

In a case where Defendant A, a dentist, was indicted on charges of violating the Medical Service Act by instigating Defendant B, who was an assistant nurse, to perform the “corratation” procedure against Defendant B, the case affirming the judgment below that Defendant A’s act of doing dental practice, which was a medical practice, in full view of all the circumstances, including the fact that Defendant B had been under other patients at the time of performing dental treatment, was found guilty on the ground that the act of doing dental practice, which was a medical practice, was a deviation from the scope of the assistant nurse’s work, and was an essential process for emotional production or accurate diagnosis, such as dental dental diagnosis and treatment, constitutes a part of the medical practice requiring medical expertise, and constitutes a medical practice requiring experience and function based on medical expertise, and further, Defendant B was an assistant nurse who was not a dental sanitarian, and Defendant A’s act of doing dental practice, which was a medical practice, was not included in the act of assisting the assistant nurse’s medical practice, and thus, cannot be included in the scope of the assistant nurse’s work.

Article 31(1) of the Criminal Act; Articles 2(1), 27(1), 80(2), and 87(1)2 of the Medical Service Act; Article 2(1) of the Rules on Assistants and Medical Care Technicians, etc.; Article 3 of the Medical Technicians, etc. Act; Article 2(1)6 of the former Enforcement Decree of the Medical Technicians, etc. Act (Amended by Presidential Decree No. 23296, Nov. 16, 201); Article 2(1)6 of the former Enforcement Decree of the Medical Technicians, etc. Act (Amended by Presidential Decree No. 23802, May 22, 2012)

Defendant 1 and one other

Defendants

Oral Jin et al.

Daejeon District Court Decision 2014Gohap1179 Decided November 12, 2014

All appeals by the Defendants are dismissed.

1. Summary of grounds for appeal;

Defendant 2, an assistant nurse, performed with Nonindicted Party 1 for a patient, was an act that falls within the scope of assisting in the nursing investigation that is unlikely to cause harm to public health and hygiene. Therefore, insofar as Defendant 1, a dentist at the time of the instant dental treatment, was present and supervised within the same clinic, there was no error in violation of the Medical Service Act against the Defendants.

2. Determination

A. Relevant legal principles

1) In principle, medical practice shall be performed only by a medical person. Under the law pertaining to medical technicians, etc., medical practice shall be permitted to be performed by a clinical pathology, radiation technician, physical therapy technician, occupational technician, dental technician, dental technician, dental technician, and dental technician’s license holder under the direction of a dentist. However, allowing only a medical technician system and part of the medical practice to be performed within the limited extent under the Medical Technicians, etc. Act, among the medical practice limited to only the medical professionals, for a specific part of which the risk of causing harm to human life, body, or public health may be caused by the relevant act. As to the specific part of which the medical technician’s license is limited to the medical technician’s license, the license shall be granted to a person who is deemed to have the ability to confirm the reaction of human body due to the relevant medical practice in the relevant field, determine whether there is any danger or not, and to cope with the situation, so that the license may be limited to the medical practice in the specific field (see Supreme Court Decision 2002Do214, Aug. 23, 2002).

2) In addition, the main sentence of Article 27(1) of the Medical Service Act provides that “no person, other than a medical person, shall conduct any medical practice, and no person, other than a medical person, shall conduct any medical practice other than a licensed one.” Article 2(1) of the same Act provides that “a medical person, who is licensed by the Minister of Health and Welfare, shall be a doctor, dentist, oriental medicine doctor, midwife, and nurse,” and Article 80(2) of the same Act provides that “a nursing assistant may engage in nursing assistance services despite Article 27 of the Act.” Article 2(1) of the Rules on Assistant Assistants and Medical Care Services, which are the Ordinance of the Ministry of Health and Welfare, provides that “a nursing assistant shall perform any of the following services.”

However, “medical assistance service” as an assistant nurse refers to a medical treatment performed by a physician as the principal agent, and even if a doctor has verbally instructed such act according to a doctor’s instruction, if an assistant nurse actually performed a medical practice, it cannot be deemed an act as an assistance to medical treatment (see Supreme Court Decision 2009Do1337, Sept. 24, 2009). The term “medical assistance service” as referred to in the above Act and subordinate statute refers to the medical treatment performed by a doctor as the principal agent and the assistance in accordance with the instructions. Even if a doctor instructss, explains, or attends the actual medical practice, if a doctor were to have performed a medical practice, it is beyond the scope of assistance to medical treatment and cannot be included in the act of assistance to medical treatment.

B. Determination

As to the instant case, the term “a dental nurse” refers to the process of destroying the dental system or the outcome thereof for diagnosis and treatment, and Article 2(1) of the Enforcement Decree of the Medical Technicians, etc. Act provides for the limitation of duties of dental technicians, etc. under Article 3 of the aforementioned legal principles and the scope of duties of dental technicians, etc. (Article 6 of the former Enforcement Decree of the Medical Technicians, etc.). As such, the term “a dental technician, etc.” in the former Enforcement Decree of the Medical Technicians, etc. Act (amended by Presidential Decree No. 23296, Nov. 16, 201) provides for the following facts: (a) that only 6 dental technicians, etc. may have been found to have been found to have been aware of the fact that the above Enforcement Decree was 1, etc.; and (b) that only the risks and difficulty of dental practice were relatively low; and (c) thus, the lower court’s medical practice was deemed to have been lawful in light of the aforementioned legal reasoning and purport.

3. Conclusion

Therefore, all appeals by the defendants are without merit, and they are dismissed in accordance with Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Lee Tae-young (Presiding Judge)