Defendant 1 and one other

Defendants

Iretland

Attorney Jeong-chul

Seoul Central District Court Decision 2005Gohap1020 Delivered on August 25, 2005

The judgment of the court below is reversed.

Defendants shall be punished by a fine of KRW 1,500,000.

If the Defendants did not pay each of the above fines, the Defendants shall be confined in the Labor House for the period calculated by converting each of 50,000 won into one day.

Of the facts charged against the Defendants, the Defendants are not guilty of violating the Medical Service Act regarding the name and indication of each medical institution.

1. Summary of grounds for appeal;

The name “(title omitted) Korean Council member” used by the Defendants is merely a use of the unique name “(name omitted)” in front of the name of medical institution, “Korea Council member,” which is the name of medical institution, and even if it was not a use of a name that would mislead the Defendants to believe that the term “Korea Council member,” which is the specific medical department from the perspective of ordinary people, was used, the lower court found the Defendants guilty by misapprehending the legal doctrine or misapprehending the legal doctrine.

2. The judgment of this Court

A. Ex officio determination

Before determining the grounds for appeal by the defendant, the prosecutor, ex officio, applied for changes in the indictment and applicable provisions of Acts to the crimes listed in Articles 1 and 2-B of the facts charged in the judgment of the court below, and changed the object of the trial by allowing the members of the union. Since the facts charged and the remainder of the facts charged are concurrent crimes in the former part of Article 37 of the Criminal Act, the judgment of the court below cannot be maintained any more.

However, with respect to the defendant's appeal claiming a mistake of facts as to the part other than the revised facts charged, the following judgment shall be made:

B. As to each of the crimes of provisional crimes in Articles 1 and 2 of the holding of the court below (the violation of the medical institution's name indication)

(1) Summary of the facts charged and the judgment of the court below

㈎ 공소사실의 요지

Defendants are herb doctors. The name of the medical institution is indicated by the name of the medical institution. The name of the medical institution is indicated on the name according to the type of medical institution. Although the name of the medical institution is likely to be confused with the name of the medical institution or the name is not used similar to the name of the specific medical institution or the name of the disease, Defendant 1 used the name similar to the child of the specific medical institution from July 2, 2004 to August 30 of the same year, Defendant 2, from April 1, 2004 to September 19 of the same year.

㈏ 원심의 판단

After recognizing the fact that the Defendants used the name similar to the child as above, the lower court found the Defendants guilty of the facts charged by determining that the Defendants’ act constitutes Article 69 and Article 35(1) of the Medical Service Act.

(2) Relevant provisions

Article 3 (2) of the Medical Service Act divides the types of medical institutions into general hospitals, hospitals, dental hospitals, oriental medical hospitals, convalescent hospitals, medical clinics, dental clinics, oriental medical clinics, and midwifery clinics. Article 3 (3) through (7) of the same Act defines the medical institutions according to the classification based on the classification of medical persons, the size of facilities to accommodate patients, the number of specialized departments and medical specialists.

In addition, Article 35 (1) of the Medical Service Act provides that medical institutions shall not use any name other than the name according to the type of medical institutions under Article 3 (2) and Article 35 (2) of the same Act provides that matters necessary for the indication of the name of medical institutions shall be prescribed by the Ordinance of the Ministry of Health and Welfare. Article 29 (1) of the Enforcement Rule of the Act provides that the name of medical institutions shall be attached to their own name on the name according to the type of medical institutions under Article 3 (2) of the Medical Service Act, but in this case, the name of the medical institution shall be prohibited from using the name that may cause confusion with the name of the medical institution

On the other hand, Article 69 of the Medical Service Act provides that a person who violates Article 35 (1) of the Medical Service Act shall be punished, while Article 35 (2) of the same Act shall not be subject to a separate penal provision: Provided, That the Minister of Health and Welfare shall issue a corrective order (Article 50 of the Medical Service Act). If the Defendants fail to comply with a corrective order, the Minister of Health and Welfare may suspend the medical service or revoke permission for the establishment or order the closure of the medical institution (Article 51 (1) 6 of the Medical Service Act).

(3) Determination of party members

㈎ 원심 판시 각 증거에 의하면, 피고인들은 1999.경 동업으로 서울 강남구에서 ‘ (명칭 생략) 한의원’이라는 명칭으로 한의원을 개설하여 운영하여 오던 중, 피고인 1은 2004. 7. 2.부터 같은 해 8. 30.까지 서울 서초구 반포동 (상세주소 생략)에서, 피고인 2는 2004. 4. 1.부터 같은 해 9. 19.까지 서울 송파구 신천동 (상세주소 생략)에서 각 ‘ (명칭 생략) 한의원’이라는 명칭으로 한의원을 개설하여 영업을 하여 오고 있는 사실을 인정할 수 있다.

㈏ 살피건대, 피고인들이 사용한 ‘ (명칭 생략) 한의원’이라는 명칭은, 의료기관의 종별 표시인 ‘한의원’ 앞에 고유명칭으로 ‘ (명칭 생략)’라는 명칭을 사용한 것으로, ‘소아’라는 고유명칭은 병원, 치과병원, 의원 또는 치과의원의 전문의들이 고유명칭과 종별 명칭 사이에 전문과목으로 삽입할 수 있는 ‘소아과’라는 특정진료과목과 유사한 점, 피고인 1이 운영하던 (명칭 생략) 한의원의 인터넷 홈페이지 (영문주소 생략)에는 한의원의 영문표기를 ‘ ○○ Childrens's Clinic’으로 표기하고, (명칭 생략) 한의원을 ‘국내 최초 소아전문한의원’이라고 소개하고 있고, 피고인들이 광고하기 위하여 제작, 배포한 전단지에도 (명칭 생략) 한의원을 ‘국내 최초 소아전문한의원으로서 자연육아의 대변인’ 등으로 소개하는 등 (명칭 생략) 한의원이 소아를 전문적으로 치료하는 한의원인 것처럼 표방하여 온 점 등에 비추어 보면, 피고인들은 피고인들이 의도적으로 고유명칭에 ‘소아’라는 명칭을 사용하였건, 또는 ‘함박 웃음을 머금은 아이’라는 의미에서 고유명칭에 ‘ (명칭 생략)’라는 명칭을 사용하였건, 객관적으로 ‘ (명칭 생략) 한의원’이라는 명칭은 특정진료과목인 ‘소아과’와 유사한 명칭을 사용한 것으로 보아야 할 것이다.

㈐ 의료법 제35조 가 의료기관의 종별 명칭과 고유명칭을 구분하여 종별 명칭에 관하여는 같은 조 제1항 으로, 고유명칭에 관하여는 같은 조 제2항 으로 규율하고 있음은 앞서 본 바와 같다.

However, the defendants using the name "(title omitted) Korea Institute" clearly stated that the medical institution operated by them constitutes "Korea Institute" as the name of medical institution under Article 3 (2) of the Medical Service Act. Thus, using the unique name "(name omitted)" on the name of medical institution under Article 3 (2) of the Medical Service Act cannot be deemed to have used the name other than the type of medical institution under Article 3 (2) of the same Act. Therefore, the defendants cannot be deemed to have violated Article 35 (1) of the same Act. However, in its own name, the defendants violated Article 35 (2) of the same Act and Article 29 subparagraph 1 of the Enforcement Rule of the same Act by using the name "child" similar to the child who is a specific medical institution, but by violating the above provision, they cannot be punished pursuant to Article 67 of the same Act.

Therefore, the facts charged to the effect that the defendants used the name similar to the specific medical department by using the name of "(title omitted) Institute" is not a crime, and thus, the defendant should be acquitted pursuant to the former part of Article 325 of the Criminal Procedure Act. The court below erred by misapprehending the legal principles on the indication of the name of medical institution, thereby pronounced guilty against the defendant. The defendants' assertion pointing this out

3. Conclusion

As seen earlier, the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, on the ground of ex officio reversal, and the judgment below is again reversed and it is so decided as follows.

Defendants are herb doctors;

1. Defendant 1:

A. A medical institution or a medical person shall not make a false or exaggerated advertisement with respect to medical services or the career of a medical person; however, from December 4, 2001 to August 30, 2004, one member of the National Assembly website (English address omitted) of the Defendant’s “(name omitted)” posted a notice to the effect that “the first establishment of the Republic of Korea Madern Cooperation Institute, the first establishment of the Republic of Korea, the prescription of the clean drug products in the Republic of Korea, the ○○ White Lindens, the Clindens, and (name omitted) one member of the Korean Medical Institution or the medical person first puts a false or exaggerated advertisement with respect to the medical service or the career of a medical person,” and puts a false or exaggerated advertisement with respect to the medical service or the career of a medical person.

B. Although anyone was unable to advertise the effect of medicine by means of mass advertisement, crymological description, photograph, printed material, broadcast, design, etc. on June 18, 2004, he or she operated a specialized program for each disease in Seocho-gu Seoul at the Seocho-gu Seoul Special Metropolitan Government (U.S.C. 1 President, Seoi (name omitted) for the first time by Boli-gu Council members and oriental medical doctors through cooperative treatment. (Name omitted) Ginok made a traditional method introduced in the bill by the (name omitted) as a clean medicine material directly good. He or she would like to look back in one year and increase the gymnife so that he or she can see that he or she see with many blood, earth, and gymmetrics that he or she would have more developed with gymological content or more effective gymological development (name omitted).

2. Defendant 2:

Despite Article 46(3) of the Medical Service Act, Article 33(1) of the Enforcement Rule of the Act, which provides the scope of advertisements on medical services, it shall not be advertised beyond the scope of advertisements. On April 1, 2004, the Seoul Songpa-gu Seoul Metropolitan Government Group opened only one Council member lock-gu (title omitted), open a natural limited childcare course, and run a program. Free-of-charge, I perform a public performance, domincing, flusing, drinking show, winding show, winding, and emulging, etc., in the lock-gu class (title omitted) where various events, such as the lock-gu class (title omitted), have been created, and published out to the waiting room (title omitted), two months a day between February 1, 2004 and February 2, 4-5.

1. The defendants' statements in the original trial and the trial court respectively.

1. Each statement of the suspect interrogation protocol prepared by the police against the Defendants

1. Entry of reference materials (Articles 21 through 34) bound in the investigation records;

1. Article applicable to criminal facts;

(a) Defendant 1: Articles 69, 46(1) (A) and 46(3) (B) of the Medical Service Act;

(b) Defendant 2: Articles 69 and 46(4) of the Medical Service Act;

1. Aggravation for concurrent crimes;

Defendant 1: former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

피고인들에 대한 공소사실 중 의료기관의 명칭 표시 위반의 점에 관한 공소사실의 요지는, 제2의 나항 (1)의 ㈎에서 본 바와 같은 바, 제2의 나항 (2), (3)항에서 본 바와 같이 위 공소사실은 죄가 되지 아니하므로, 형사소송법 제325조 전단에 의하여 위 공소사실에 대하여 무죄를 선고한다.

1. Defendant 1

A. The assertion

Defendant 1 asserts that, with respect to the crime of Article 1 of the judgment, the contents indicated on the (title omitted) Internet homepage (English address omitted) of the “(title omitted),” cannot be deemed as false or exaggerated advertisements based on objective facts, and as to the crime of Article 46(3) of the Medical Service Act, Article 46(3) of the Constitutional Court's decision of unconstitutionality (Supreme Court Order 2003Hun-Ga3 dated October 27, 2005) has lost its effect, it cannot be punished under the above provision.

B. Determination

(1) As to the Aggravated Punishment No. 1

Defendant 1’s Internet homepage of the Republic of Korea (name omitted) stated “the first instance of Korea, the establishment of the Republic of Korea, the prescription of the best domestic product clean, the Clindens’s (name omitted)” as a representative of the first instance, one who is aware of the possibility of treating Abane diseases in the Republic of Korea.” As seen earlier, advertising by using words lacking objectivity, such as “domestic first,” “domestic highest,” “representative,” and “representative,” not only disrupt fair competition, but also it is reasonable to view that (name omitted) one member of the Republic of Korea is the most advanced member in the field of Abia disease and is likely to mislead or mislead the consumers as if only the most excellent medicine materials are used in the field of Abia disease. It constitutes a false or exaggerated advertisement regarding medical affairs or medical personnel’s career.

Defendant 1’s above assertion is rejected.

As to the crime of Category 1(b) of the Judgment

In a case where a single law or a provision that is subject to adjudication on constitutionality includes both the unconstitutional part and the unconstitutional part, and where the unconstitutional part and the unconstitutional part are divided into language and text, the unconstitutional part cannot be said to lose its effect until the constitutional part is unconstitutional.

The Constitutional Court Order 2003Hun-Ga3 dated October 27, 2005 ruled that "the function and method of medical treatment of a specific medical institution or a specific medical person" under Article 46 (3) of the Medical Service Act and Article 69 of the same Act are unconstitutional only for the violation of the above prohibition. Thus, the violation of Article 46 (3) of the same Act and Article 69 of the same Act, which is distinguishable from the unconstitutional part, are still valid. Thus, the advertisement of the drug prepared by the above defendant, such as "(title omitted) light height" and "the (title omitted) public letter", regardless of whether it is false or exaggerated, constitutes Article 69 and Article 46 (3) of the Medical Service Act regardless of whether it is a false or exaggerated advertisement.

Defendant 1’s above assertion is rejected.

2. Defendant 2

A. The assertion

Article 46 (4) of the Medical Service Act provides that "the scope of advertisements for medical services and other matters necessary for medical advertisements shall be prescribed by the Ordinance of the Ministry of Health and Welfare," and Article 69 punishs the act of violation. This is contrary to the principle of no punishment without the law and the principle of prohibition of comprehensive delegation legislation, and further, the content of the advertisement on the leaflet distributed by Defendant 2 is merely a notification of the exercise related to the opening of a medical advertisement which is not completely related to the medical advertisement.

B. Determination

In light of the fact that Article 46(4) of the Medical Service Act prohibits, in principle, medical advertising and allowing limited permission for medical advertising within a certain range of the Ministry of Health and Welfare, not limiting citizens’ fundamental rights, but releasing the restriction, the above provision cannot be deemed to be in violation of the principle of prohibition of comprehensive delegation legislation or the principle of no punishment without law.

The distribution of the former part of the judgment by Defendant 2 as indicated in paragraph 2 of the same Article is a medical advertisement for promoting hospitals by informing the hospital itself or providing various services provided by the hospital on the ground of various events, and furthermore, inducing potential patients. It is reasonable to view that such a medical advertisement goes beyond the scope of advertisements permitted under Article 46(4) of the Medical Service Act and Article 33(1) of the Enforcement Rule of the same Act.

Defendant 2’s assertion is rejected.

Judges Heung-han (Presiding Judge)