Defendant 1 and two others

Defendants

Park Young-young

Law Firm Yubi et al.

Seoul Central District Court Decision 2009Ma1757 Decided July 22, 2009

The judgment of the court below is reversed.

Defendant 1 shall be punished by a fine of KRW 1,000,000, by a fine of KRW 2,000,000, by a fine of KRW 2,000,00, by a fine of KRW 1,000, by a fine of KRW 3 stock company.

When Defendant 1 and 2 fail to pay each of the above fines, each of the above defendants shall be confined in a workhouse for the period calculated by converting 50,000 won into one day.

An order to pay an amount equivalent to each of the above fines shall be issued.

1. Summary of grounds for appeal;

A. Summary of the grounds for appeal by Defendant 1 and Defendant 3

Defendant 1 and Defendant 3 Co., Ltd. merely advertised the contents of the advertisement to be provided to Defendant 2 according to the event advertising contract with Defendant 2, and did not introduce, arrange, or induce patients to Defendant 2 for profit. The lower court erred by misapprehending the legal doctrine, thereby finding the Defendants guilty.

B. Summary of Defendant 2’s grounds of appeal

Defendant 2’s act does not constitute a prohibited act under Article 27(3) of the former Medical Service Act (amended by Act No. 9135, Oct. 14, 2008; hereinafter the same) as an advertisement by a medical person permitted by the Act, but also does not constitute inducement of patients for profit and the intention thereof. However, the lower court found the Defendant guilty by misapprehending the legal doctrine and misapprehending the legal doctrine.

2. Determination

A. Judgment on Defendant 2’s assertion

(1) “Referral and good offices” under Article 27(3) of the former Medical Service Act refers to the act of mediating or facilitating the formation of a contract for medical treatment delegation between a patient and a specific medical institution or a specific medical person; “inducing” refers to the act of inducing a patient to enter into a contract for medical treatment delegation with a specific medical institution or a specific medical person by deception or cruel means; “inciting a patient” refers to the act of inducing a person to enter into a contract for medical treatment entrustment with a specific medical institution or a specific medical person; “inciting a patient” refers to the act of inducing another person to resolve to introduce, mediate, or induce a patient to a specific medical institution or a specific medical person for profit-making purposes; and the above provision aims to prohibit not only the act of inducing patients by a medical person or a person other than a medical institution founder but also the act of inducing patients or the act of inducing the patient; however, in order for a medical institution or a medical person to fall under the act of attracting a patient to himself/herself, it should be provided with money

(2) (Name omitted) Determination on the advertisement on the website

(5) According to the following circumstances acknowledged by the records of this case, if Defendant 2 entered into an advertisement contract with Defendant 3 to the effect that if the winning results in the event and event of the website (name omitted), it is difficult for the above online medical corporation to find that the above act would be difficult to obtain 90,000 won in the event of the event and event, it cannot be said that the patient himself/herself bears the full amount of medical expenses because he/she is not subject to benefits under the National Health Insurance Act or the Medical Insurance Act, and it cannot be said that the Defendant intended to perform 90,000 won in the medical expenses of this case. (2) According to the medical corporation or the medical corporation’s legislative intent of Article 27(3) of the former Medical Service Act, it is difficult to find that the above act of using the above 90,000 won in the medical expenses of this case is difficult to find that the above 90,000 won of the medical expenses of this case could not be seen as using the 90,000 won in the medical expenses of this case.

(2) (Name omitted) Determination on the dispatch of electronic mail to members

However, as seen above, if the above advertisement was placed on a specific site by sending an electronic mail that is directly received to many and unspecified persons, ① its method of treatment is not passive incentives, but unilaterally providing information to potential patients, and the electronic mail is considerably the same as that of a specific individual, and its direct or face-to-face method can be considerably affected by the addressee’s decision-making on medical treatment and surgery, and thus, its incentive is much more strong than that of the former. ② In this case, even if the price of the above 90,000 won cannot be seen as being unfairly salted by the electronic mail, it includes the most important information for the patient to find, and thus, it is difficult for the medical personnel to find that the above 3-party's method of medical treatment and the above 2-party's method of advertising would not be easily identical to the above 3-party's method of medical personnel to receive the above information, and thus, it also includes the above 3-party's method of advertising and its contents.

B. Determination on the assertion by Defendant 1 and Defendant 3

In light of the records of this case, Defendant 3 Co., Ltd. and its representative director, pursuant to this case's advertisement contract with Defendant 2, they manufactured the phrase provided by Defendant 2 as it is, and published an advertisement in the event and event of the (Internet site name omitted) website, and sent e-mail containing about 30,000 members of the (Internet site name omitted) advertisement to 300,000 members. As seen earlier, if the above (Internet site name omitted) advertisement was placed on the website, it cannot be said that Defendant 2 induced patients for commercial purposes. Thus, Defendant 1 and Defendant 3's act is merely an act of acting as an agent in accordance with the contract with Defendant 2, and it is difficult to view that this part of the above Defendants' assertion is reasonable, and since it is also difficult to view that there was no way to dispatch the above e-mail to the above Defendants to 300,000 members of the e-mail.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, since some mistake of facts and misunderstanding of legal principles are erroneous, and the judgment below is again ruled as follows.

The summary of the facts constituting an offense recognized by this court and the evidence thereof are cited in accordance with Article 369 of the Criminal Procedure Act, except for the alteration of Paragraph (1) of the facts constituting an offense in the judgment of the court below as shown in the separate facts constituting an offense in this case.

1. Article relevant to the facts constituting an offense and the selection of punishment;

A. Defendant 1 and 2: Articles 88 and 27(3) of the former Medical Service Act (amended by Act No. 9135, Oct. 14, 2008; hereinafter the same) and Article 30 (Selection of Fine) of the Criminal Act

(b) Defendant 3 corporation: Articles 91(1) (the part concerning the representative of a corporation), 88 and 27(3) (the selection of fines) of the former Medical Service Act;

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

In light of the following: (a) the Defendants had no particular criminal record; (b) around 300,00 members of the Internet site (name omitted); (c) the Defendants sent electronic mail to the members of the 300,000 members (Internet site name omitted); and (d) the Defendants’ age, character and conduct and environment; (b) motives, means and consequences of the crimes; and (c) the sentencing conditions specified in the instant case, including the circumstances after the crimes, shall be determined

Of the facts charged in the instant case, the summary of the facts charged that the Defendants enticed patients by posting an advertisement on the website (name omitted) is prohibited from introducing, mediating, or inducing patients to medical institutions or medical persons for profit-making purposes, and leading them to do so. Defendant 1 and 2, on March 7, 2008, at the ○○○○○○ Department located in Gangnam-gu, Seoul (name omitted), Defendant 3 corporation’s (Internet site name omitted) website and event at the (Internet site name omitted) homepage, and thereby, found Defendant 3 to be not guilty of the above-mentioned act for the purpose of publishing the above-mentioned act with the Ra/Ra 900,000,000,000,000 won (name omitted) to the above 200,0000,0000,0000 won (hereinafter “the above 1st,000,0000,0000 won) to the above 1st,000,0000 won.

Judges Cho Yong-jin (Presiding Judge)