[1] The meaning of "for-profit purposes" under the main sentence of Article 27 (3) of the former Medical Service Act and whether a person who solicits patients for profit must be in accord with the person to whom economic benefits accrue or the person to whom the business is to be managed (negative) and the meaning of "unspecific"

[2] In a case where the director of a mental medical institution requests a discharge from a patient who voluntarily hospitalized, etc., but has failed to follow the procedure under the former Mental Health Act, whether the act of unlawful confinement constitutes an act of unlawful confinement (affirmative)

[1] The main text of Article 27(3) of the former Medical Service Act (amended by Act No. 14438, Dec. 20, 2016) provides that “any person shall not introduce, mediate, or induce a patient to a medical institution or a medical person for profit, such as exempting or discounting the patient’s apportionment under the National Health Insurance Act or the Medical Care Assistance Act, providing money, goods, etc., or providing transportation to many and unspecified persons, etc.” (see, e.g., current Act only provides that the same shall apply to expressions). Here, “for profit-making purposes” refers to the purpose of obtaining wide economic benefits, and the person who solicits a patient for profit-making purposes must not be necessarily the person to whom economic benefits accrue or the person to whom the economic benefits accrue, and “unspecific” means that the other party does not have any specific relationship at the time of the act, but does not fall under the scope that the other party is limited to a special relationship.

[2] Article 23(2) of the former Mental Health Act (amended by Act No. 1310, Jan. 28, 2015; hereinafter the same) provides that “the head of a mental medical institution shall discharge a patient from his/her hospital without delay if the patient so hospitalized applies for discharge” (Article 41(2) of the Act on the Improvement of Mental Health and the Support for Welfare Services for Mental Patients, which was wholly amended by Act No. 1424, May 29, 2016; Article 41(2) of the former Mental Health Act provides that “the head of a mental medical institution, etc. shall discharge a patient without delay if the person so hospitalized applies for discharge, etc.” (Article 41(2) of the former Mental Health Act). In a case where a person who requested discharge from a patient fails to follow the procedure prescribed by the former Mental Health Act and is left unattended,

[1] Articles 27(3) and 88 of the former Medical Service Act (Amended by Act No. 14438, Dec. 20, 2016; see current Article 88 subparag. 1) / [2] Article 276 of the Criminal Act; Article 23(2) of the former Mental Health Act (Amended by Act No. 1310, Jan. 28, 2015; see current Article 41(2)); Article 55 subparag. 2 (see current Article 84 subparag. 2 of the Act on the Improvement of Mental Health and the Support for Welfare Services for Mental Patients)

Defendant

Defendant

Attorneys Yu Jung-won et al.

Seoul High Court Decision 2016No816 decided April 27, 2017

The appeal is dismissed.

The grounds of appeal are examined.

1. Violation of the Medical Service Act due to the inducement of patients for profit;

A. For the following reasons, the lower court convicted the Defendant of the violation of the Medical Service Act, in collusion with the Co-Defendant 2, Co-Defendant 4 of the lower judgment, Co-Defendant 5 of the lower co-Defendant 5, and Nonindicted Party 1 of the lower judgment from September 2013 to March 2014, on the part of the violation of the Medical Service Act, which led the patient for profit-making purposes, such as the list of crimes recognized as a crime committed.

(1) The Defendant, as the head of ○○○ Hospital, employed and paid monthly salary to the Joint Defendants 2, the Joint Defendants 4, the Joint Defendants 5, and Nonindicted 1 of the lower court in order to care for the homeless in Seoul Station, Young Station, etc., and paid credit cards to be used by them.

(2) The co-defendant 2 of the court below stated that the above employees had induced the above employees to homeless persons in Seoul Station, Young Military Station, etc., and the defendant was also aware that the above employees had known that they had to work every day.

(3) The co-defendant 2 of the court below instructed the co-defendant 4 of the court below, the co-defendant 5 of the court below, and the non-indicted 1 of the court below to take care of the homeless in Seoul Station, Young Station, etc. and managed the traffic team of the ○○ Hospital.

(4) The co-defendant 2 of the lower court, the co-defendant 4 of the lower court, the co-defendant 5 of the lower court, etc. promised to provide tobacco and scriptive items, etc., or the motor vehicle that he operated, led the homeless to ○○ Hospital by carrying the homeless into ○○○ Hospital, and the homeless and ○○ Hospital concluded a medical delegation agreement.

B. The main text of Article 27(3) of the former Medical Service Act (amended by Act No. 14438, Dec. 20, 2016; hereinafter the same) provides that “any person shall not introduce, mediate, or induce a patient to a medical institution or a medical person for profit, such as exempting or discounting the patient’s apportionment under the National Health Insurance Act or the Medical Care Assistance Act, providing money, goods, etc., or providing transportation to many and unspecified persons, etc.” (see, e.g., current law only provides for the same purpose).” Here, “for profit-making purpose” refers to the purpose of widely acquiring economic benefits, and a person soliciting a patient for profit-making purpose is not necessarily required to coincide with the person to whom the economic benefits accrue or the person to whom the economic benefits accrue, and “non-specific” refers to not the meaning that the other party does not specifically specify at the time of the act but the fact that the other party does not fall within the scope of a special relationship with the other

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, it is justifiable to have determined that the lower court: (a) conspired with the Defendant and the co-defendant 2; (b) the co-defendant 4; (c) the co-defendant 5; and (d) Nonindicted 1, etc. of the lower judgment to attract patients for profit, such as providing transportation convenience to many and unspecified persons; and (c) contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules; or by misapprehending the legal doctrine on the establishment of a crime of violating the Medical Service

2. Illegal confinement in breach of the Mental Health Act due to non-compliance with a request for discharge;

A. On the grounds delineated below, the lower court convicted Nonindicted 2 of the violation of the Mental Health Act and the violation of confinement due to non-indicted 2’s non-compliance with the discharge request.

(1) Even though Nonindicted 2 applied for discharge on or around December 27, 2013, Nonindicted 2 continued to enter Nonindicted 2’s closed ward without releasing Nonindicted 2.

(2) Although Non-Indicted 2 requested several discharges, it was not accepted, and around March 19, 2014, Non-Indicted 2 reported to the police that he was a person who was a fine. Accordingly, the police called ○○ Hospital, along with the police called ○○ Hospital.

B. Article 23(2) of the former Mental Health Act (amended by Act No. 1310, Jan. 28, 2015; hereinafter the same) provides that “The head of a mental medical institution shall discharge a patient from his/her hospital without delay if the patient so hospitalized applies for discharge” (Article 41(2) of the Act on the Improvement of Mental Health and the Support for Welfare Services for Mental Patients, which was wholly amended by Act No. 1424, May 29, 2016; Article 41(2) of the former Mental Health Act provides that “the head of a mental medical institution, etc. shall discharge a patient without delay if the person who voluntarily hospitalized, applied for discharge, etc.” even if a patient requests discharge from the hospital, if the person left alone without following the procedure prescribed by the former Mental Health Act, it shall be deemed that there is an unlawful confinement.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court is justifiable to have convicted the Defendant of this part of the crime. In so determining, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on the establishment of the crime of confinement and the number of crimes under the Criminal Act due to nonperformance of the discharge request under Articles 5 subparag. 2 and 23(2) of the

3. To guarantee the principle of court-oriented trials and the defense of defendants;

In a case where the prosecutor did not assert the grounds for appeal through oral argument in the court and the defendant is deemed not to have been tried through a substantive oral argument, such as the prosecutor’s failure to exercise the right of defense against him/her, the appellate court is not allowed to accept the prosecutor’s allegation in the grounds for appeal and modify the first instance judgment disadvantageous to the defendant (see, e.g., Supreme Court Decision 2015Do11696, Dec. 10, 2015).

According to the records, the prosecutor stated the grounds for appeal on the first day of the original trial, and stated the gist of the grounds for appeal that the prosecutor filed an appeal on the grounds of mistake of facts and unreasonable sentencing. Accordingly, the Defendant’s assertion that the grounds for appeal was not examined through oral proceedings by the prosecutor, such as where the prosecutor did not assert the grounds for appeal through oral proceedings in the courtroom or where the Defendant was unable to exercise the adequate right to defense thereof, cannot be accepted. In so doing, the lower court did not err by misapprehending the legal doctrine on the principle of

4. Conclusion

The Defendant’s appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)