[1] The purport of the medical engineer system under the Medical Technicians, etc. Act

[2] The case reversing the judgment of the court below which recognized that the defendant acquired the aforementioned examination fees by claiming the examination fees of the clinical type which was not carried out by a clinical path, on the ground that the intent of the Medical Technicians, etc. Act does not exclude the intention of the "Medical Technicians, etc. Act" itself as one of the medical acts, and thus, the prosecutor should have examined whether the examination was carried out by the nurse by the guidance of the doctor on night duty

[1] In principle, medical practice shall be performed only by medical personnel, but it shall be permitted by a person holding a license for a clinical path, radiation technician, physical clinic, occupational clinic, dental technician, or dental sanitarian under the instruction of a doctor or dentist. However, the purport of the Medical Technicians, etc. Act, which limits only medical personnel to allow them to have part of medical practice within the limited scope, should be limited to the medical technicians, and the purport of the Act on Medical Technicians, etc., which limits only the medical professionals to allow them to perform part of the medical practice, is to obtain knowledge and experience on the risks, etc. that may cause harm to human life, body, or public health, and to grant a license to a person who is deemed to have the ability to confirm and judge the reaction of human body caused by the medical practice in the specific field, and to allow him/her to perform the medical practice in the specific field limited to the medical doctor’s instruction.

[2] The case reversing the judgment of the court below that recognized that a person, other than a clinical psychologist, conducts a clinical test for a patient, and that he received insurance money by claiming a medical corporation's representative for such test fees, constitutes fraud, on the ground that a clinical psychologist, who is a kind of medical technician, can conduct a heart test at the doctor's instruction, and the doctor's conduct a heart test is not excluded, on the ground that the prosecutor should have examined whether or not he was conducted by the nurse with the guidance of a night doctor on duty at night.

[1] Article 27(1) of the Medical Service Act, Articles 1 and 2 of the Medical Technicians, etc. Act / [2] Article 347(1) of the Criminal Act, Article 27(1) of the Medical Service Act, Articles 2, 9(1), 30(1)1, and 32 of the Medical Technicians, etc. Act, Article 2(1)1 of the Enforcement Decree of the Medical Technicians, etc. Act

[1] Supreme Court Decision 2002Do2014 decided Aug. 23, 2002 (Gong2002Ha, 2265)

Defendant 1 and one other

Defendants

Daejeon District Court Decision 2008No659 Decided January 15, 2009

The part of the lower judgment against Defendant 1 is reversed, and that part of the case is remanded to the Daejeon District Court Panel Division. Defendant 2 medical corporation’s appeal is dismissed.

The grounds of appeal are examined.

1. As to Defendant 1’s fraud of the urine test fees and radiation reading fees

According to the employment evidence, the court below found Defendant 1 guilty of this part of the fraud on the ground that it can be recognized that Defendant 1 claims insurance money by means of unfashing the details of claims for insurance money, such as urine test fees and radiation reading fees, and acquired insurance money by excessively receiving insurance money from the victims as stated in the judgment of the victims. In light of the records, such measures of the court below are just and there is no

2. As to Defendant 1’s fraud by fraud of the core swords, feed, etc.

In principle, medical practice shall be performed only by a medical person, but it shall be permitted for a person who is deemed to have the ability to confirm the reaction of the human body due to medical practice in the relevant field and to deal with the situation, under the law on medical technicians, etc., to engage in medical treatment or medical examination under the instruction of a medical doctor, dentist, dental technician, dental technician, dental technician, and dental technician. However, permission for part of medical practice within the limited scope under the Medical Technicians, etc. Act on the Medical Technicians, etc. is limited to medical technicians to allow only the medical personnel to engage in medical practice, and permission for a specific part of which is less likely to cause harm to human life, body, or public health, among the medical practice in which only the medical personnel are allowed to engage, to obtain the knowledge and experience about the risk, etc. that may cause harm to the human body due to such medical practice in the relevant field, and to allow such person to perform the medical practice in the specific field restricted under the instruction of a medical doctor (see Supreme Court Decision 202Do2014, Aug. 23, 2002).

The court below maintained the first instance judgment convicting Defendant 1 of this part of the charges on the ground that Article 2 of the Medical Technicians, etc. Act provides that a clinical psychologist is a kind of medical technician, and Article 2 (1) 1 of the Enforcement Decree of the same Act provides that a clinical pathology is listed as a duties of a clinical pathology, and Article 9 (1) of the same Act provides that no medical technician, etc. shall perform duties of a medical technician, etc., other than medical technicians, etc., and that such duties of a clinical path is a medical technician engaged in the clinical path examination and such duties of a clinical path cannot be performed only by a clinical path.

However, in light of the above legal principles and relevant regulations, even if a clinical psychologist is allowed to conduct a clinical test under the direction of a doctor, it is not the purport of excluding the conduct of a clinical test itself as part of medical practice. Therefore, the above judgment of the court below is erroneous in the misapprehension of the Medical Technicians Act in relation to the conduct of a clinical test, etc., and it has affected the conclusion of the judgment (it should have been determined after examining whether the clinical path prosecutor in the judgment was conducted by a clinical path, even if it was not conducted by a clinical path, and after examining whether it was conducted by a nurse under the direction of a clinical doctor on night duty, the claim for the part of the core swords feed and the payment of the payment of the payment of the part are made by the nurse). The grounds for appeal pointing this out are with merit.

3. As to the criminal intent of the defendant 1's defraudation

The intent of the crime of defraudation, which is a subjective constituent element of fraud, shall be determined by comprehensively taking into account the objective circumstances, such as the Defendant’s financial history, environment, details of the crime, and the process of performing the transaction before and after the crime, unless the Defendant is led to the confession. The intent of the crime is sufficient not to be a conclusive intention but to do anything else (see, e.g., Supreme Court Decisions 2007Do8726, Aug. 21, 2008; 2008Do5618, Sept. 25, 2008).

The court below, after compiling the evidence duly admitted, found the facts and circumstances as stated in its reasoning, and judged that Defendant 1 committed the instant crime in light of these facts and circumstances. In light of the above legal principles and records, the court below's fact-finding and decision are just and there is no violation of the rules of evidence as alleged in the grounds of appeal.

4. As to the defendants' deficiencies in the nursing register

The court below found Defendant 1 guilty of violating the Medical Service Act as to the Defendants on the ground that Defendant 1 conspired with the nurse of Daejeon Hospital and did not prepare and keep a nursing register for the patients hospitalized due to a traffic accident as stated in its judgment. In light of the records, the court below was just and there were no errors in the misapprehension of legal principles as to identification crimes or in violation of the rules of evidence, etc., contrary to what is alleged in the grounds of appeal.

5. Conclusion

Therefore, among the judgment of the court below, the part of the crime of fraud against Defendant 1 by fraud shall be reversed. Since the crime of fraud is a concurrent crime with the remaining guilty part against Defendant 1 and the former part of Article 37 of the Criminal Act, one of the judgment below is reversed in its entirety, and this part of the case shall be remanded to the court below for a new trial and determination. The appeal by Defendant 2 medical corporation shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)