[1] The meaning of "the act of obstructing treatment by occupying a medical institution" under Article 12 of the former Medical Service Act

[2] A person who commits a crime of violation of Article 28 (2) 6 of the Security Services Industry Act, which punishs a security guard who causes a person to commit an act beyond the scope of security service

[1] Article 12 of the former Medical Service Act (amended by Act No. 8067 of Oct. 27, 2006) / [2] Articles 15-2 (2) and 28 (2) 6 of the Security Services Industry Act

[1] Supreme Court Decision 79Do1387 delivered on September 24, 1980 (1980, 3244)

Defendant 1 and one other

Defendant 1 and Prosecutor

Law Firm Ui-Myeon, Attorneys Song-hee et al.

Seoul Northern District Court Decision 2008No68 decided July 29, 2008

Of the judgment of the court below, the part of conviction against Defendant 1 and the part of acquittal against the Security Industry Act are reversed, and the case is remanded to Seoul Northern District Court Panel Division. The prosecutor's remaining appeal is dismissed.

1. As to Defendant 1’s appeal

According to the records, the defendant did not submit a statement of grounds for appeal within the statutory period, and the petition of appeal contains only the statement that "the defendant has committed an error of law," but does not assert any specific grounds, so it cannot be deemed that the legitimate grounds for appeal have been submitted.

2. As to the prosecutor's appeal

A. As to the grounds of appeal on the violation of the Medical Service Act against the Defendants

Article 12 of the former Medical Service Act (amended by Act No. 8067 of Oct. 27, 2006; hereinafter the same) provides that "no person shall destroy or damage medical facilities, equipment, medicine, and other equipment of a medical institution, or interfere with medical treatment by occupying a medical institution, or aid and abetting or aiding a medical institution." Thus, in light of the fact that the above provision provides for "the occupation of a medical institution" with the form of interfering with medical treatment and the legislative purport of the penal provision, "the act of interfering with medical treatment by occupying a medical institution" means an act of interference with medical treatment by practically controlling a medical room or sick room to the extent that it may interfere with medical treatment of a medical institution, even if it does not necessarily require the complete occupation of a medical institution, it shall be deemed that the act of interference with medical treatment by causing interference with medical treatment (see Supreme Court Decision 79Do1387, Sep. 24, 198).

The court below found, based on its adopted evidence, facts as stated in its reasoning, and found Defendant 1 not guilty of the violation of the Medical Service Act, on the ground that the act of Defendant 1 entering the clinic after the completion of the medical examination and treatment of Nonindicted 1, a doctor of the instant hospital, and repeated to return the key to the room to Nonindicted 1, or the act of taking the warning form to Nonindicted 1, who did not comply with Defendant 1’s instructions within the hospital employees or the act of giving a warning form to Nonindicted 1, who did not follow Defendant 1’s instructions within the hospital, did not reach the degree of interfering with the medical practice of the medical personnel who attempted to perform medical treatment by de facto controlling the hospital or sick room. Upon examining the records in light of the above legal principles, the court below’s above fact-finding and judgment are justified, and there is no error in the misapprehension of legal principles as to Article 12 of the former Medical Service Act as otherwise alleged in the ground

B. As to the ground of appeal on Defendant 1’s violation of the Security Industry Act

Article 15-2 (2) of the Security Services Industry Act provides that "no one shall cause a security guard to perform any act beyond the scope of the security service," and Article 28 (2) 6 of the same Act provides that "a person who causes a security guard to perform any act beyond the scope of the security service in violation of the provisions of Article 15-2 (2)" shall be punished. In light of the language and text of the above provision and the fact that there is a need to punish a person who is not a security business entity or his employee, the subject of the above provision cannot be deemed to be limited to "a person who is in the position to direct and supervise the security business entity or his employee beyond the scope of the security service."

Therefore, on the grounds stated in its reasoning, the court below found Defendant 1 not guilty of the violation of the Security Services Industry Act on the ground that the above provision is limited to a security business entity or its employee who is subject to punishment and is in a position to direct and supervise security guards beyond the scope of security service. However, it erred by misapprehending the legal principles on the subject of acts under Articles 15-2(2) and 28(2)6 of the Security Services Industry Act, thereby affecting the conclusion of the judgment.

C. As to the ground of appeal on Defendant 1’s injury aid and injury

The lower court found Defendant 1 not guilty on the part of the Defendant 1, on the grounds that it cannot be deemed that Defendant 1 instigated Nonindicted 2 to injure, or caused an injury jointly with Nonindicted 2, based on the evidence of his employment.

Examining the reasoning of the judgment below in light of the records, we affirm the above fact-finding and judgment of the court below as just, and there is no error of law such as misconception of facts due to violation of the rules of evidence or misunderstanding of legal principles as to teachers and co-principals.

3. Scope of reversal

A part of the appellate court's judgment of conviction and a part of the judgment of innocence, and both the defendant and the prosecutor filed a final appeal against the judgment. However, in a case where the defendant's final appeal against the guilty part is without merit and only the prosecutor's final appeal against the acquittal part is with merit, if the crime which the appellate court found the defendant guilty and the crime which found the defendant not guilty are concurrent crimes under the former part of Article 37 of the Criminal Act, the guilty part of the judgment of the appellate court shall also be reversed (see Supreme Court Decision 200Do2123, Nov. 28, 200).

According to the above legal principles, the part of the judgment below's conviction and the part of the acquittal which was reversed by the prosecutor's appeal among the part of the judgment below is concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, one sentence should be imposed on the whole. Accordingly, the part of the judgment below's conviction against Defendant 1 and the part of the non-guilty part of the judgment

4. Conclusion

Therefore, the part of the judgment of the court below against Defendant 1 and the part of the non-guilty verdict against the violation of the Security Industry Act are reversed, and that part of the case is remanded to the court below for a new trial and determination. The prosecutor's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Yang Chang-soo (Presiding Justice)