Defendant

Prosecutor

Oeather

Attorney Jeong-jin

Busan District Court Decision 2004Gohap5224 Delivered on July 27, 2005

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

The gist of the prosecutor's grounds for appeal is that the scope of the "medical records based on the medical records" under Article 38 (3) of the Guarantee of Automobile Accident Compensation Act includes the nursing records, various ledgers, and reading books in which the person other than the doctor records the enforcement of the medical records according to the doctor's prescription. Thus, the defendant who claimed medical fees covered by automobile accident insurance differently from the medical records such as the nursing records should be liable for the violation of the above Act. However, the court below erred by misapprehending the legal principles that acquitted the charged facts of this case on different premise.

2. Determination:

A prosecutor has instituted a public prosecution in this case by applying the former part of Article 38(3) of the Guarantee of Automobile Accident Compensation Act.

Article 11 (1) of the Guarantee of Automobile Accident Compensation Act shall notify without delay the medical institution which treats the automobile accident patient of the reason for and limit of the payment of the medical fee under automobile accident insurance in accordance with the medical treatment concerned, when the insurer, etc. makes a claim by the insurer, etc., or the victim's request under the latter part of Article 9 (1) has been made, or when the occurrence of the automobile accident patient has been known due to other causes. (2) A medical institution which has received a notice from an insurer, etc. of the intention to pay the medical fee under automobile accident insurance from the insurer, etc. under the provisions of paragraph (1) may claim the medical fee under automobile accident insurance from the insurer, etc. in accordance with the criteria as notified by the Minister of Construction and Transportation pursuant to the provisions of Article 13

In violation of Article 38 (3) of the Guarantee of Automobile Accident Compensation Act, a medical institution which has claimed medical fees covered by automobile accident insurance differently from the medical records under the medical records in violation of Article 11 (3) shall be punished by a fine not exceeding fifty million won.

Article 2 (1) of the Medical Service Act refers to a medical doctor, dentist, oriental medical doctor, midwife, or nurse licensed by the Minister of Health and Welfare.

Article 21 (1) of the Medical Service Act (1) Each medical person shall keep the records of medical treatment, assistance in childbirth, nursing register, and other records concerning medical treatment (hereinafter referred to as "medical records, etc.") and enter the matters concerning the relevant medical practice and opinions thereon in detail and sign thereon.

(1) Notwithstanding the provisions of Article 21 of the Medical Service Act, any medical person or any founder of a medical institution may prepare and keep medical records, etc. in the form of electronic documents with digital signatures under the Digital Signature Act (hereinafter referred to as "electronic medical records").

The Guarantee of Automobile Accident Compensation Act provides that the act of filing a claim for medical fees covered by automobile accident insurance differently from the medical record under the former part of Article 38(3) provides that "the act of filing a false medical record for the purpose of claiming medical fees covered by automobile accident insurance" shall be a requirement for the composition of each crime. The latter part does not prepare a false "medical record" but imposes a punishment for filing a false "medical record" differently from the "medical record", while the former part does not punish the act of filing a claim differently from the "medical record based on the "medical record based on the medical record", and is punished only for filing a claim differently from the "medical record". Thus, the above law strictly separates the concept of "medical record" and the concept of "medical record based on the medical record" from the "medical record" and Article 21(3) of the Medical Service Act separates the concept of "medical record" from the concept of "medical record" and the concept of "medical record" from the "medical record" "medical record and the concept of "medical record".

As in this case, if the part of Article 38(3) of the Guarantee of Automobile Accident Compensation Act applies to a medical fee for automobile accident insurance different from the medical record prepared by a person who is not a doctor, the scope of the requirements for crime is excessively expanded as well as the scope of the requirements for crime is assessed against the violation of the above Act even if a person who claims medical fee for automobile accident insurance differently from the medical record prepared by the doctor, and the above Act does not require the “medical record by the medical record” to be false, and only the “medical record by the medical record” does not require the “medical record other than the medical record by the medical record” in the latter part of Article 38(3) of the above Act, unlike the latter part of the above Act.

Therefore, separate from the fact that the act of preparing false medical records for the purpose of claiming medical fees covered by automobile insurance is "for the purpose of applying the latter part of Article 38 (3) of the above Act, or the act of obtaining money by deceiving the insurer, etc., it can be viewed as fraud under the Criminal Act ( there is no evidence to prove that the defendant has an intention to obtain money of medical fees covered by automobile insurance by deceiving the insurer, etc.) and the act of the defendant does not constitute the former part of Article 38 (3) of the above Act. Therefore, the judgment of the court below which acquitted the defendant as above cannot be seen as an unlawful determination of the legal principles as pointed out by the

3. Conclusion

Therefore, the appeal by the prosecutor is dismissed as it is without merit. It is so decided as per Disposition.

Judges Shin Jae-chul (Presiding Judge)