Defendant 1 and four others

Defendant 1 and one other and the public prosecutor (with respect to all the defendants)

Park Jong-sung, Park Jong-young, Kim Chang-spe (prosecution), and leapju (Public trial)

Law Firm LbnB Partners et al., two others

Incheon District Court Decision 2014Gohap532, 849 (Joint), 941 (Joint), 2015Gohap42 (Joint) Decided February 17, 2016

The part of the judgment of the court below against Defendant 1 (board: Defendant 1) and the part of the not guilty, which is in violation of the Medical Service Act due to the inducement of patients for profit, each of which is inducement for profit, the part of confinement against Nonindicted 3 and Nonindicted 2, the part of the conviction against Defendant 2, the violation of the Medical Service Act due to the inducement of patients for profit, each of which is inducement for profit, and the part against Defendant 4, respectively.

Defendant 1’s imprisonment, Defendant 2’s fine of KRW 13 million, and Defendant 4’s fine of KRW 5 million, respectively.

When Defendant 2 and Defendant 4 fail to pay the above fine, each of the above Defendants shall be confined in a workhouse for the period calculated by converting 100,000 won into one day.

However, with respect to Defendant 1, the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

Defendant 2 and Defendant 4 shall be ordered to pay an amount equivalent to the above fine.

The Prosecutor’s remaining appeals against Defendant 1 and Defendant 2 and appeals against Defendant 3 and Defendant 5 are dismissed, respectively.

Of the facts charged against Defendant 1, the charge of violation of the Mental Health Act due to non-compliance with the discharge request against Nonindicted 3 and the charge of confinement against Nonindicted 3 is not guilty.

The summary of the acquittal part among the judgment against Defendant 1 shall be publicly announced.

1. Summary of grounds for appeal;

A. Defendant 1

1) misunderstanding of facts and misapprehension of legal principles

A) Violation of the Medical Service Act due to the inducement of patients for profit

In the lower judgment, Non-Indicted 4, Non-Indicted 5, Non-Indicted 6, Non-Indicted 7, and Non-Indicted 3, who are recognized to have been induced for profit at the lower court, failed to memory the process of hospitalization due to alcohol addiction, deception, etc., and thus, they cannot be admitted as evidence to acknowledge the facts charged because the statement of Defendant 4, Non-Indicted 5, and Defendant 5 was not reliable. In particular, Non-Indicted 7 discharged Non-Indicted 7 from the hospital on January 8, 2014, on May 29, 2014. In addition, providing transportation means to those who have already been induced to be hospitalized, cannot be deemed as an inducement under the Medical Service Act, and thereby doing so, it cannot be deemed that the order of the medical market is fundamentally harmed, and even if the staff of the ○○○○ Hospital engaged in the traffic team engaged in providing tobacco or board and board, it cannot be deemed that there was any error in the misapprehension of legal principles regarding the order of the medical market and the facts charged.

B) The non-compliance with the discharge request

The non-indicted 3 cannot be deemed to have applied for discharge, and even if so, the defendant did so, the non-indicted 3's condition was extremely bad, and the non-indicted 3 should be deemed to have withdrawn his application for discharge upon the defendant's recommendation. Moreover, the non-indicted 2's statement that the defendant applied for discharge is not reliable. Accordingly, the judgment of the court below that found the defendant guilty of this part of the facts charged is erroneous in the misapprehension

2) Unreasonable sentencing

The punishment sentenced by the court below (ten months of imprisonment, two years of suspended execution) is too unreasonable.

B. Defendant 2

Nonindicted 7 called the Defendant and requested hospitalization from Nonindicted 7, and the Defendant was only 7, and the remaining four persons except Nonindicted 7 did not take the Defendant’s direct vehicle into ○○○ Hospital. Therefore, the Defendant did not induce a patient for commercial purposes. Therefore, the lower court that found the Defendant guilty of this part of the facts charged was erroneous in matters of mistake of facts.

(c) Prosecutors;

(1) misunderstanding of facts

The lower court erred by misapprehending the legal principles as follows.

A) The point of double establishment and operation of the medical institutions by Defendant 1 and Defendant 3

In full view of the fact that Nonindicted 8, Defendant 2, and Defendant 4 working at △△ Hospital operated by Defendant 3 was employed at the time of opening the ○○ Hospital and was in charge of major duties, and that the building of the ○○ Hospital is Defendant 3, Defendant 3 can be recognized as the actual operator of the ○○ Hospital. Thus, the fact that the Defendants conspired to establish and operate a medical institution twice can be recognized.

B) Violation of the Medical Service Act due to Defendant 1, Defendant 2, Defendant 3, Defendant 4, and Defendant 5’s inducement for profit and attracting patients for profit

Defendant 2, Defendant 4, Defendant 5, and Co-Defendant 5 of the first instance trial constituted a provision of transportation for the homeless to move the homeless to a hospital in the Seoul Station, the Yeongdeungpo Station, and the fact that it is difficult to see that the homeless was voluntarily admitted to the hospital. In the absence of the above Defendants and Co-Defendant 5 of the first instance trial, the homeless did not appear in the ○○ Hospital, Defendant 1 employed the homeless as a guardian. Defendant 3 sent Defendant 2 to the ○○○ Hospital to attract the homeless, the statement of the homeless patients who are unable to attend due to death or other reasons is recognized as unique conditions, and thus, admissibility should be recognized. Defendant 4, Defendant 5, and Co-Defendant 5 of the first instance trial asserted that they worked only for the above Defendants and Co-Defendant 5 of the first instance trial, but also for the purpose of profit-making.

C) Defendant 1 and Defendant 2’s refusal to discharge patients and confinement

In full view of the following facts: (a) the admissibility of a statement of the homeless patients should be recognized; (b) the homeless persons were hospitalized in the closed ward without hearing explanation of the procedures for the entrance into the closed ward; and (c) the Defendants demanded discharge; (d) however, the Defendants did not demand discharge; and (e) even the guardians assault the patients, the fact that the Defendants detained them without releasing the patients despite their request for discharge can be acknowledged.

D) The point of obtaining insurance benefits from Defendant 1 and Defendant 3 and the point of fraudulent supply and demand

In full view of the fact that the Defendants established a medical institution in double form, and that the guardians claimed insurance benefits as if they were treated as patients, and were hospitalized for a certain period without considering the patient’s condition, the Defendants could recognize the fact that the Defendants acquired insurance benefits by fraud and illegally received them.

2) Unreasonable sentencing

The punishment sentenced by the court below to Defendant 1, Defendant 2, and Defendant 4 (Defendant 2: fine of KRW 14 million, and fine of KRW 5 million for each of Defendant 4) is too unhued and unreasonable.

2. Determination

A. The point of double establishment and operation of the medical institutions by Defendant 1 and Defendant 3

1) Summary of the facts charged

Defendant 3, while opening and operating a △△ Hospital (mental Hospital) in Gyeyang-gu Incheon, from around 2011 to around 201, in collusion with Defendant 1 on May 23, 201, established the ○○ Hospital (mental Hospital) in the name of Defendant 1, Defendant 1, the head of the hospital, Nonindicted 8, who worked as the head of the administrative office at the △△ Hospital, the head of the secretariat of the ○○ Hospital, and the head of the foreign cooperation division, and Defendant 2 and Defendant 4, who had engaged in the act of attracting patients to the homeless at the △△ Hospital, etc.; Defendant 20 persons, including Nonindicted 9, were transferred to the ○○ Hospital; and Defendant 3 operated the ○○ Hospital by in collusion with the Defendants until March 2014, by attracting mentally ill persons including the patients suffering from alcohol addiction. The Defendants established and operated the medical institution.

2) The judgment of the court below

The lower court found Defendant 3 not guilty of the facts charged on the ground that it is insufficient to view that Defendant 3 had established and operated the ○○ Hospital to the extent that there is no reasonable doubt, and there is no other evidence to acknowledge it.

3) Determination of the immediate deliberation

A doctor who establishes a medical institution under his/her own name and directly engages in the management of a newly established medical institution, such as opening another medical institution under another’s name and directly employing its employees, paying a salary, and taking profits accruing from the business, cannot be deemed to have established a separate medical institution by practically borrowing another’s license. However, even if a medical institution established under another’s name, which directly provides a medical act or hires a unqualified person and provided a separate medical act under his/her own supervision, the above doctor who already established a medical institution under one’s own name is deemed to have established a duplicate medical institution (see Supreme Court Decisions 2003Do256, Oct. 23, 2003; 2006Do4652, Sept. 25, 2008).

① Examining the evidence submitted by the prosecutor, there is no evidence to acknowledge that Defendant 3 had performed medical practice directly at the ○○ Hospital or employed an unqualified person and engaged in medical practice under the supervision of Defendant 3. ② The circumstances as indicated in the reasoning of the evidence duly admitted and examined by the lower court, namely, the sale of real estate owned by Defendant 1, and the payment of KRW 300 million out of the sale price to Defendant 3 as the deposit for lease of the building at the ○○ Hospital. The money transferred by Defendant 1 to Defendant 3 appears to have been repaid out of the money borrowed from Defendant 3. In light of the following: (a) around August 2013, 2013, Non-Indicted 10, Non-Indicted 111, etc. and Non-Indicted 2014, etc., the evidence submitted by the prosecutor alone is justifiable to recognize that there was no lack of evidence to acknowledge that there was no illegality in the determination of the lower court, such as the performance of the management and operation of human resources of the ○○ Hospital.

B. The point of obtaining insurance benefits from Defendant 1 and Defendant 3 and the point of fraudulent receipt

1) Summary of the facts charged

The Defendants: (a) around May 2013, the ○○ Hospital was established and operated in duplicate by Defendant 3; (b) induced the homeless persons in Seoul Station, Young Military Station, etc.; and (c) forced hospitalization of them for a certain period of time regardless of their mental state such as alcohol addiction, and the treatment period; (c) normally, the said ○○ Hospital was established and operated in Defendant 1’s name; and (d) wished to receive insurance benefits from the Health Insurance Corporation by claiming the insurance benefits from the patients to the Health Insurance Corporation as appropriate, as the patient’s mental state and the period of hospitalization are appropriate.

Accordingly, around May 2013, the Defendants: (a) enticed the Victim Health Insurance Corporation by the foregoing method; (b) received 14,985,610 won from the Victim Health Insurance Corporation as insurance benefits for May 2013 to receive unjust payment from the victim non-indicted 9, etc.; and (c) received 1,532,230,650 won in total as the name of insurance benefits as shown in the attached Table 3 from around that time to February 2014; and (d) illegally received 6,562,800 won in the same way as the name of the patient’s medical expenses, etc. for non-indicted 2 by the same method around June 2014.

2) The judgment of the court below

① The lower court determined that it is insufficient to view that the ○○ Hospital was a hospital established and operated twice in violation of the Medical Service Act; ② in the ○○ Hospital, the patient was classified into an open ward and closed ward with a certain standard after measuring the blood alcohol concentration at the time of hospitalization for the patient; and the patient was interviewed with Defendant 1 on the day and following the day and following the date of hospitalization; and thereafter, the doctor of the ○○ Hospital, including Nonindicted 11 and Nonindicted 10, was designated as the principal doctor of each patient; and the doctor in charge was designated as the patient’s doctor during the hospitalization period; and the medical records for the patient were prepared. In full view of the fact that it was insufficient to view that the Defendants were proven to have received or obtained insurance benefits by fraud or other improper means.

3) Determination of the immediate deliberation

In addition to the circumstances described in the court below: (a) according to the evidence duly adopted and examined by the court below and the court below, Non-Indicted 2 suffered from the alcohol respect, fluence, depression, depression, and bovine spongiformiforms; (b) it is acknowledged that the aforementioned disease was treated while hospitalized in ○○○ Hospital and taking medicine according to the doctor's medical treatment and taking medicine according to the prescription; and (c) the evidence submitted by the prosecutor alone is insufficient to readily conclude that the homeless patients were hospitalized and treated unfairly for the purpose of receiving medical care benefits, even though the need for hospitalization and treatment is not recognized; and (d) the court below's decision is just and there is no error of law by misunderstanding the facts alleged by the prosecutor. Accordingly, the prosecutor's assertion is not accepted.

C. Violation of the Medical Service Act due to Defendant 1, Defendant 2, Defendant 3, Defendant 4, and Defendant 5’s inducement for profit and attracting patients for profit

1) Summary of the facts charged

Defendant 1 and Defendant 3 employed as a guardian after being hospitalized for alcohol addiction in △△ Hospital, and employed as a guardian, and instructed the head of the administrative office of the ○○ Hospital and the head of the foreign cooperation division to employ Defendant 4 as the head of the foreign cooperation division. Defendant 5 and Nonindicted 1 employed Defendant 2, who had been hospitalized in the ○○ Hospital, and been hospitalized in the ○○ Hospital, as a guardian, employed Defendant 2, Defendant 4, etc., who had been hospitalized in the Seoul Station, and had been hospitalized in the ○○ Hospital, and had been hospitalized in the ○○ Hospital, etc., and let the homeless 2, Defendant 4, etc. induce the homeless to the ○○○ Hospital (hereinafter referred to as the “speed”).

around October 12, 2013, Defendant 2, Defendant 4, etc. and Nonindicted 1 told Nonindicted 4, who had been sleeped in the vicinity of the Young Military Station, to the effect that “I would give 3 Myeon tobacco to a hospital and resolve board and lodging at the hospital. I would make it a recipient of basic living. I would make it a recipient of basic living. I would make it possible for Defendant 2 to put Defendant 2 into the ○○ hospital and ○○ hospital.”

Accordingly, Defendant 1, Defendant 2, Defendant 3, Defendant 4, and Defendant 5 conspired with Co-Defendant 5 and Nonindicted 1 in the first instance trial. From June 2013 to March 2014, Defendant 1 induced patients for profit-making purposes at least 87 times, as indicated in attached Table 1, from June 2013 to March 2014.

2) The judgment of the court below

A) Points of attracting profit-making incentives

The court below acquitted Defendant 2, etc. of all of the inducements for profit on the ground that the evidence submitted by the prosecutor alone was insufficient to prove that Defendant 2, etc. were moving to the ○○○ Hospital’s lane hospital with the homeless, and left from the free living relationship or protection relation against their will, and that they were moving to the place under the real control of Defendant 1, Defendant 2, etc., without reasonable doubt.

B) Violation of the Medical Service Act due to the inducement of patients for profit

The court below found Defendant 1, Defendant 2, Defendant 4, and Co-Defendant 5 of the first instance trial as indicated in the list of crimes approved by the court below, guilty on the following facts: (a) although it was acknowledged that Defendant 1, Defendant 2, Defendant 4, and Defendant 5 had induced a patient for commercial purposes, such as providing transportation, etc. to Nonindicted 4, etc. on five occasions as indicated in the list of crimes approved by the court below (the second instance judgment twice); (b) as to the remainder of the facts charged, it is difficult to deem that the above Defendants were proven without any reasonable doubt that some of the homeless patients voluntarily hospitalized to ○○ Hospital; (c) some of the homeless patients were forced to induce the above homeless; (d) there was no evidence to acknowledge the facts charged; (e) there was no evidence to acknowledge the facts charged; (e) there was a confession made in the case of Defendant 4, Defendant 5, and Co-Defendant 5 of the first instance trial; and (iii) there was

3) Determination of the immediate deliberation

A) Points of attracting profit-making incentives

(1) Defendants 1, 2, and 3

In addition to the following circumstances acknowledged by the court below, i.e., ① the homeless person’s conditions of hospitalization at ○○ Hospital as an adult, including the period during which the homeless person was hospitalized in the ○○ Hospital as an adult, and the fact that the homeless person appears to have been hospitalized voluntarily (the prosecutor’s assertion is without merit, even in the facts of the prosecution, that the homeless person was voluntarily hospitalized except 3 persons, including 12, 13, and 14. The written statement of the above 3 patients is inadmissible, and there is no other evidence that the above 3 patients were forced to be hospitalized, and there is no other evidence that the above 3 patients were forced to be hospitalized, and if so, the mere evidence submitted by the prosecutor alone is insufficient to conclude that Defendant 3 was involved in attracting the patient at ○○○ Hospital. In addition, the judgment of the court below is just and there is no error of law by mistake of facts as alleged by the

(2) Defendants 4 and 5

Defendant 4, Defendant 5, and Co-Defendant 5 of the first instance court led to the confession of this part of the facts charged at the court below's court. However, in light of the above circumstances acknowledged in the court below and the first instance court, it is difficult to believe the above Defendants and Co-Defendant 5 of the first instance court's statement in the court below, and the evidence submitted by the prosecutor alone is insufficient to recognize this part of the facts charged, so the judgment of the court below is just and there

B) Violation of the Medical Service Act due to the inducement of patients for profit

(1) Defendants 4 and 5

(A) The credibility of the court below's testimony made by Co-Defendant 4, Defendant 5, and Co-Defendant 5

Determination of the credibility of a confession shall be made in consideration of all the circumstances, including whether the content of the confession itself has objectively rationality, what is the motive or reason for the confession, what is the background leading to the confession, and whether there is no conflict or inconsistency with the confession among the circumstantial evidence other than the confession (see Supreme Court Decision 2013Do10277, Nov. 14, 2013).

Defendant 4, Defendant 5, and Co-Defendant 5 of the first instance trial led to confession of this part of the facts charged in the lower court’s court. In light of the above legal principles, whether the above statement in the lower court was credibility or not is examined. First, according to the evidence above, the following facts and circumstances may

① According to the facts charged in this part, Defendant 4, Defendant 5, and Co-Defendant 5 of the first instance trial are the period from June 2013 to March 2014 during which Co-Defendant 5 enticed patients for profit-making purposes as shown in attached Table 1.

② However, both the above Defendants and Co-Defendant 5 stated that they were a witness at the lower court’s court’s court as a witness from the homeless, and that Defendant 4 at the investigative agency around August 20, 2013 to February 2, 2014, Co-Defendant 5 at the first instance court around October, 2013 to around January 2, 2014, and around March, 2014 to around March, 2014, Defendant 5 was working at ○○ Hospital Traffic Team from April 2014 to August 2, 2014.

③ Co-defendant 5 of the first instance trial in the investigative agency stated that, around January 2014, Co-defendant 5 of the first instance trial commenced traffic with the homeless in the Young River Station and Seoul Station, the homeless who ped themselves while working for the homeless, did not provoking any graphic, and in the year 2014, Defendant 4 ped the homeless only in the Young River, and Defendant 1 (the staff of other traffic teams) started traffic with the dead end of the vehicle before the misunderstanding in the 2014, and Defendant 4 was from the beginning of the traffic.

④ Defendant 2 stated in the investigative agency that the Nonindicted Party 1, Nonindicted Party 15, Nonindicted Party 16, and Nonindicted Party 17 were used for traffic of the homeless. In the Seoul Station, Defendant 2 himself in the Young Station, Defendant 2 himself in the Young Station, and Defendant 4 and Co-Defendant 5 in the first instance trial that the remainder used for traffic of the homeless.

⑤ According to the Lone Star Operating Date, on September 23, 2013 to September 24, 2013, Defendant 4 engaged in the traffic of patients using Lone Star Motor Vehicle. On August 27, 2013 to March 1, 2014 (excluding the foregoing period) Nonindicted 18, Nonindicted 16, Nonindicted 19, Nonindicted 19, Nonindicted 20, and Nonindicted 17 engaged in the traffic of patients through Lone Star.

④ According to the low-speed driving log, Defendant 4 engaged in the vehicle traffic using a high-priced motor vehicle on January 2, 2014 from January 17, 2014 to January 17, 2014, and Co-Defendant 5 engaged in the vehicle traffic with the low-priced mother on February 3 to March 24, 2014.

7) According to the set set up by Defendant 4, Defendant 4 stated the traffic details of Defendant 4, using a low mother on August 20, 2013 to February 22, 2014.

④ From November to February 28, 2013, to February 28, 2014, Nonindicted Party 1 made a team with Nonindicted Party 15 with Nonindicted Party 15, and provided a patient traffic service (Nonindicted Party 1 is prohibited from driving), Defendant 4, and Defendant 5 stated that Nonindicted Party 5 provided a vehicle traffic service on his own.

9) On December 5, 2013, the emergency contact network for employees of ○○ Hospital was not indicated by Co-defendant 5 of the first instance trial and Defendant 5, and it seems that they were not working at ○○ Hospital at the time.

In addition to the above facts and circumstances, the part of the defendant 4 and co-defendant 5's confessions made by the defendant 4 and the part as stated in the list of crimes that the defendant 4 and co-defendant 5 of the first instance trial found guilty is credibility, and the other part cannot be ruled out that the defendant 4 and co-defendant 5 of the first instance trial are not working, or that the other part cannot be ruled out that the possibility that the other part might have graphicd the patient.

In addition, according to the above facts and circumstances, Defendant 5 started working at the traffic team of ○○ Hospital from April 2014 (the "defendant" column in attached Table 1 does not include Defendant 5) and there is no other evidence to prove the fact that the above defendant was working at the traffic team of June 17, 2013 to March 11, 2014. Thus, the confession made by the above defendant cannot be believed in full.

(B) Defendant 4 and Co-Defendant 5 of the first instance trial

Article 27 (3) 2 of the Medical Service Act prohibits solicitation of patients to medical institutions for profit-making purposes, providing money and valuables, and offering transportation to many and unspecified persons as one of them, and exceptionally allow attracting patients with prior approval from the head of the competent Si/Gun/Gu on the ground of the patient's economic situation, etc.

According to the above evidence, the defendant 4 and co-defendant 5 of the court of first instance agreed to provide tobacco, schomatics, and livers as stated in the list of crimes found guilty, or entered into a medical delegation contract with the above homeless and ○○ Hospital by driving the automobiles operated by the defendant 4 and co-defendant 5 of the court of first instance into the ○○ Hospital by carrying many unspecified homeless persons into the ○○ Hospital, and by driving them into the ○○ Hospital. Such acts constitute soliciting patients listed in Articles 88 and 27 (3) of the Medical Service Act (see Supreme Court Decisions 2004Do7858, Feb. 17, 2005; 2010Do9181, Oct. 28, 2010; 2016Do19569, Feb. 3, 2017).

However, there is no credibility of the confession made by Defendant 4 and Co-Defendant 5 of the first instance trial, and the evidence submitted by the prosecutor alone is insufficient to recognize that Defendant 4 and Co-Defendant 5 of the first instance trial committed this part of the charges.

Therefore, the court below erred in misunderstanding of facts that found Defendant 4 not guilty of the facts in attached Form 11, 16, 20, etc., No. 11, 16, and 20, and the prosecutor's assertion is with merit to this extent.

Meanwhile, the court below deemed the crime of violation of the Medical Service Act due to the inducement of patients for profit of this case as a substantive concurrent crime, and deemed the relationship between the above crime and the crime of inducement for profit of this case as also a substantive concurrent crime. However, in light of the interpretation of Article 27(3) of the Medical Service Act, it is anticipated that repeated act of the same kind is possible, and Defendant 4 entices the homeless patients into the Young Station for the purpose of profit continuously with a single and continuous criminal intent, and in light of the fact that the damage law benefits are the same, it is reasonable to view the crime of violation of the Medical Service Act due to the inducement of patients for profit of the above defendant as a single comprehensive crime, and it is reasonable to view that the crime of the above crime and the crime of inducement for profit of each of the above crimes are several crimes as crimes under Article 40 of the Criminal Act corresponding to several crimes. Therefore, the part of the violation of the Medical Service Act due to the inducement of patients for profit of the above defendant and the part of the inducement for profit-making purpose should be reversed

(C) Defendant 5

The judgment of the court below that acquitted the above defendant on the ground that the confession made by the defendant 5 is not reliable, and the evidence submitted by the prosecutor alone is insufficient to recognize that the above defendant committed the charge, and therefore the judgment of the court below is just and there is no violation of law of mistake in the facts alleged by the prosecutor

(2) Defendants 1 and 2

(A) Defendant 4 and Defendant 5 committed the crime of violation of the Medical Service Act due to the inducement of patients for profit as above. According to the above evidence, Defendant 1 employed Defendant 2, Defendant 4, Defendant 5, and Nonindicted 1 as a traffic business team and paid monthly salary, Defendant 2 also paid credit cards to be used by the traffic business team, Defendant 2 told Defendant 1 to have a traffic business team run the traffic business. Defendant 1 also knew that Defendant 1 would move to the above station, etc., Defendant 2 knew that Defendant 4, Defendant 5, Nonindicted 1 et al. were moving to the above station, etc., Defendant 2 instructed Defendant 4, Defendant 5, and Nonindicted 1 et al. to move to the homeless and managed the traffic business team at the Seoul Station, Young Station, etc., and Defendant 1 and Defendant 2 committed the crime of violation of the Medical Service Act in collusion with Defendant 4 and Defendant 1, and Defendant 2 convicted Defendant 4 and Defendant 5 for the purpose of attracting patients as stated in the attached Table 4).

In addition, according to the above evidence, it can be acknowledged that Defendant 2 promised to provide tobacco, cirrology, etc. as described in the list of crimes committed by Nonindicted Party 1, etc., who worked as the ○○○ Hospital Pacific Team in addition to Defendant 4, Defendant 1, and Nonindicted Party 5, as well as Defendant 4, Defendant 1 and Nonindicted Party 2, 20, 21, 26, 29, and 30 (attached Table 1, No. 19, 36, 49, 57, 57, 67, 70, 71) of the daily list of crimes committed by Defendant 2, etc., or that a medical delegation contract was concluded between the said homeless and ○○ Hospital, in collusion with Nonindicted Party 1 and Nonindicted Party 21, etc., for the purpose of attracting patients, or that they committed a violation of the Medical Service Act, such as the crime committed by inducing patients for profit.

Defendant 1 asserts that such an act does not constitute a violation of the Medical Service Act due to inducing patients for profit-making purposes, even if the homeless person voluntarily purchased an automobile of the ○○○ Hospital, and even if they concluded that they would offer transportation facilities to the homeless patients and offer tobacco, etc. to the homeless patients, such act does not constitute a violation of the Medical Service Act due to inducing patients for profit-making purposes. However, the act of inducing a homeless person to enter into a medical delegation contract with a large number of unspecified persons who have intent to move into a hospital, also constitutes an act of inducing patients for transportation convenience listed in Article 27(3) of the Medical Service Act (see Supreme Court Decisions 2004Do7858, Feb. 17, 2005; 2010Do9181, Oct. 28, 2010); thus, the act of inducing the homeless person to enter into a medical entrustment contract by itself constitutes an act of inducing the homeless person to enter into a medical treatment contract after the said act of inducing the homeless person to enter into a medical treatment contract (see Supreme Court Decision 201060Do71, supra.

(B) However, according to the evidence of the crime list No. 1 in the annexed Table No. 54, it is acknowledged that the homeless patient Non-Indicted 7 was hospitalized in ○○ Hospital around January 8, 2014 and received treatment until January 12, 2014. Defendant 2 was driving Nonindicted 7 again in ○○○ Hospital on January 13, 2014, and there is no evidence to deem that Non-Indicted 7 was discharged from ○○ Hospital around that time. Accordingly, it can be deemed that Non-Indicted 7 was moving the patient who did not return to ○○ Hospital, and it cannot be concluded that it was a violation of the Medical Service Act due to inducement of patients for profit-making purposes.

In addition, the remainder of the attached Table 1, other than the list of crimes guilty, is insufficient to recognize that the evidence submitted by the prosecutor alone has committed this part of the charges.

(C) Therefore, the court below was just in finding Defendant 1 and Defendant 2 guilty of the entries 18, 19, 49, and 61 in the annexed crime list No. 18, 19, 49, and 61. However, since the court below found Defendant 1 guilty of the facts stated in the annexed crime list No. 54 was erroneous in misunderstanding of facts or misunderstanding of legal principles, the above Defendants' assertion is justified within this limit and the court below found Defendant 1 not guilty of the facts in the annexed crime list No. 1, No. 11, No. 16, and No. 20 of the annexed crime list No. 1, No. 116, and No. 20 of the same year, and the prosecutor's assertion is justified within this limit.

Defendant 1 and Defendant 2’s crime of violation of the Medical Service Act due to the inducement of patients for profit is an all-inclusive crime. Since the above crime is in conflict with the inducement of each profit-making purpose, the violation of the Medical Service Act due to the inducement of patients for profit-making purpose of the above Defendants and the violation of the inducement of patients for profit-making purpose, and the part of the inducement of each profit

(3) Defendant 3

The evidence submitted by the prosecutor alone is insufficient to readily conclude that Defendant 3 was involved in attracting patients at ○○ Hospital. Therefore, the judgment of the court below is just and there is no error of law by mistake of facts alleged by the prosecutor. Therefore, the prosecutor's assertion

D. Defendant 1 and Defendant 2’s refusal to discharge patients and confinement

1) Summary of the facts charged

On February 3, 2014, Defendant 2, Defendant 4, and Co-Defendant 5 met Nonindicted 21 who was in the old room in the Seoul Station, and Nonindicted 21 conspired Nonindicted 21 to the ○○ Hospital by having access to “○○ Hospital to provide accommodation and convenience,” and Defendant 1 had Nonindicted 21 enter Nonindicted 21 into the closed ward without any particular explanation on the procedure for the closed ward, and continued to enter Nonindicted 21 who demanded the discharge after approximately one week.

As a result, the Defendants conspired to discharge Nonindicted 21, who demanded discharge, and detained Nonindicted 21 on the closed ward, without immediately releasing him/her, from June 2013 to March 2014, and instead detained him/her on the closed ward, 21 inpatients who demanded discharge as stated in the attached list 2 from June 2013 to March 2014.

Defendant 2, via Defendant 4 and Co-Defendant 5 of the first instance trial, she moved Nonindicted 2 on October 31, 2013 to ○○○ Hospital. Defendant 1, without any particular explanation as to the procedure for entering the closed ward, entered Nonindicted 2 into the closed ward, and continued to enter the closed ward without releasing Nonindicted 2, demanding the discharge on several occasions from December 27, 2013. Accordingly, Defendant 2 conspiredd Nonindicted 2 requesting the discharge, and detained him on the closed ward without immediately releasing him.

2) The judgment of the court below

A) The non-compliance with the request for discharge

① The lower court found Defendant 1 not guilty on the remainder of the facts charged by comprehensively taking account of the following facts: (a) although it was acknowledged that Defendant 1 did not immediately discharge Nonindicted 3 and Nonindicted 2 despite the request for discharge; (b) on the other facts charged, the lower court found Defendant 1 guilty on the grounds that the aforementioned facts charged was insufficient to be proven to the extent that there is no reasonable doubt for deliberation; and (c) in the case of Defendant 2, it is not the subject of the crime of the Mental Health Act, which is punished under Article 5 subparag. 2 of the Mental Health Act; and (d) there is no evidence to acknowledge that there was a conspiracy between Defendant 1 and the above facts charged.

B) The point of confinement

The lower court found the Defendants not guilty of all the charges on the sole basis of the evidence submitted by the prosecutor, in light of the following: (a) the fact that some of the patients detained the patients without reasonable doubt; and (b) the statement or statement in some of the patients lacks admissibility of evidence and no other evidence exists to acknowledge the facts charged.

3) Determination of the immediate deliberation

A) The non-compliance with the request for discharge

(1) The part on Defendant 1’s non-indicted 3

According to the above evidence, Nonindicted 3 stated in the court below’s court that “I will discharge Defendant 1 from Korea on February 2, 2014, and make her fluority period once.” However, Nonindicted 3 was hospitalized in ○○ Hospital around January 27, 2014, and Nonindicted 3 stated that “I will see the fact that I would like to be able to do so,” and that I would like to say, “I would like to see the fact that I would like to go beyond the short period of time,” and that I would like to say that I would like to be able to easily refer to the above solicitation of the doctor, and that I would like to say that I would like to say that I would like to say that I would like to say that I would like to say that I would like to say that I would like to know about the fact that I would like to say that I would like to say that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to know that I would like to see.

Meanwhile, the lower court deemed that the crime of non-compliance with the instant request for discharge and the crime of confinement was in a substantive concurrent relationship, but it is reasonable to view that the non-compliance with the Defendant 1’s request for discharge with Nonindicted 3 and the charge of confinement with Nonindicted 3 is in a conceptual concurrence relationship. Therefore, the lower court also reversed the part of the non-compliance with the request for discharge with Nonindicted 3 and the charge of confinement with Nonindicted 3 among the part of innocence.

(2) The part on Defendant 1’s non-indicted 2

According to the above evidence: (a) around December 27, 2013, Non-Indicted 2 applied for discharge to Defendant 1 (the prosecutor also acknowledged the fact that Non-Indicted 2 had expressed his intention of discharge by Non-Indicted 2); (b) Nevertheless, Defendant 1 did not discharge Non-Indicted 2; (c) Non-Indicted 2 requested discharge several times, but did not accept it; and (d) on March 19, 2014, Non-Indicted 2 reported to the police that the person himself was a fine; and (e) it appears that Defendant 1 was sent to the ○○ Hospital as well as the police called. In full view of this, it is recognized that Defendant 1 did not release Non-Indicted 2 despite his request for discharge by Non-Indicted 2. Accordingly, the judgment of the court below is justifiable, and there is no error of law as to misunderstanding of facts, and thus, Defendant 1’s assertion is not accepted.

(3) The part on Defendant 1’s remaining patients and the part on Defendant 2

Examining the reasoning of the judgment below in comparison with the evidence, the judgment of the court below is just, and it is not accepted by the prosecutor since there is no error of mistake

B) The point of confinement

(1) The part on Defendant 1’s non-indicted 2

As seen earlier, Nonindicted 2 applied for discharge on or around December 27, 2013, but Defendant 1 did not release Nonindicted 2. According to the above evidence, Nonindicted 2 was hospitalized in ○○ Hospital around October 31, 2013; ② Nonindicted 2 is required to attach an electronic device upon obtaining an electronic device attachment order; but Nonindicted 2 was exempted from wearing an electronic device while staying in ○○○ Hospital’s closed ward; on that reason, Nonindicted 2 remains in ○○ Hospital; and on that reason, there was a fact that he could not go out and stay outside the hospital (in the event that Nonindicted 2 was discharged, contact the probation office in advance). In full view of this, Defendant 1 could be found guilty of the facts that Defendant 2 was detained on the part of Nonindicted 2 on or around December 27, 2013, which affected the conclusion of the judgment of the court below. Accordingly, the lower court erred by misapprehending the facts contained in the facts charged.

(2) The part on Defendant 1’s remaining patients and the part on Defendant 2

Examining the reasoning of the judgment below in comparison with the above evidence, the judgment of the court below is just, and it is not accepted by the prosecutor since there is no error of mistake

3. Conclusion

Therefore, since the appeal against Defendant 1, Defendant 2, and the Prosecutor on Defendant 1, Defendant 2, and Defendant 4 is partly well-grounded, without examining the judgment on the allegation of unfair sentencing with respect to Defendant 1, Defendant 1, Defendant 2, and Defendant 4 under Article 364(6) of the Criminal Procedure Act, the guilty part of the lower judgment and the charge of violation of the Medical Service Act due to the inducement of patients for profit-making purposes among the acquitted part of the lower judgment’s conviction and the charge of inducing patients for profit-making purposes, each part of the charges against Nonindicted 3, and Nonindicted 2, the charge of inducing patients for profit-making purposes, the charge of violation of the Medical Service Act due to the inducement of patients for profit-making purposes, each part of the guilty part against Defendant 2 and the charge of inducing each for profit-making purposes, each of the charges against Defendant 4 are reversed, and the appeal against Defendant 1, Defendant 2, Defendant 3, and Defendant 5 are dismissed as follows.

The summary of the facts constituting the crime recognized by this court and the summary of the evidence are the same as the stated in each corresponding column of the judgment of the court below, and thus, they are quoted as it is in accordance with Article 369 of the Criminal Procedure Act.

Of the facts constituting the crime of the lower judgment, the 6th, 7, 8, and 9 of the lower judgment are as follows.

“Publically recruited, around September 2013 to March 2014, Defendant 1, Defendant 2, and Defendant 4 had induced patients for profit, such as providing transportation means over 34 times, and Defendant 4 had induced patients for profit, such as providing transportation means over 21 times.”

Part VI of the facts constituting the crime of the lower judgment is deleted from 11 to 16.

Of the criminal facts of the judgment of the court below, the 6th 10th th eth 10th eth eth 1st eth eth eth eth eth eth eth eth eth eth eth eth eth eth eth

Defendant 1 entered Nonindicted 2, who was on October 31, 2013 in the Seoul Station, in the closed ward, and continued to enter the closed ward without releasing Nonindicted 2, who demanded discharge on several occasions from December 27, 2013. Accordingly, Defendant 1 detained Nonindicted 2, who demanded discharge, in the closed ward without immediately releasing him.

Of the gist of the evidence of the lower judgment, “1. Nonindicted 22, Nonindicted 23, and Nonindicted 24’s each legal statement”, “1. A copy of the seized article (Evidence 6), a copy of the seized article (Evidence 7), and a copy of the seized article (Evidence 14)” in the part of “1. Nonindicted 2, Nonindicted 23, and Nonindicted 2’s each legal statement” and “1. Nonindicted 2, Nonindicted 2,” respectively, shall be added to the summary of the evidence of the lower judgment.

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

A. Defendant 1: Articles 88 and 27(3) of the former Medical Service Act (Amended by Act No. 14438, Dec. 20, 2016; hereinafter the same shall apply); Article 30 of the Criminal Act (including the inducement of patients for profit-making purposes); Article 5 subparagraph 2 of the former Mental Health Act (Amended by Act No. 1310, Jan. 28, 2015; hereinafter the same shall apply); Article 23(2) of the former Mental Health Act (Amended by Act No. 1310, Jan. 28, 2015; hereinafter the same shall apply); Article 276(1) of the Criminal Act (a) of the Criminal Act; Article 57 Subparag. 1 and Article 23(3) (a) of the former Mental Health Act (a) of the same Act (a

B. Defendant 2: Articles 88 and 27(3) of the former Medical Service Act, Article 30 of the Criminal Act (a comprehensive selection of fines, with respect to solicitation of patients for profit-making purposes), Article 81 subparag. 19, and Article 34 of the former Automobile Management Act (amended by Act No. 12217, Jan. 7, 2014; hereafter the same shall apply in January 8, 2015);

C. Defendant 4: Articles 88 and 27(3) of the former Medical Service Act, and Article 30 of the Criminal Act (the purpose of inducing patients for profit-making purposes, inclusive, selection of fines)

1. Commercial competition;

Defendant 1: Articles 40 and 50 of the Criminal Act (Punishment on the violation of the Mental Health Act due to non-compliance with a request for discharge, between crimes of confinement and punishment, and punishment on the violation of the Mental Health Act due to non-compliance with a request for discharge with heavier discharge)

1. Selection of punishment;

Defendant 1: Selection of imprisonment

1. Handling concurrent crimes;

Defendant 2: latter part of Article 37 and Article 39(1) of the Criminal Act

1. Aggravation for concurrent crimes;

(a) Defendant 1: the former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (Aggravation of concurrent crimes with punishment prescribed in the Mental Health Act due to non-compliance with a request for discharge of the largest punishment);

(b) Defendant 2: the former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (limited to the maximum amount of two crimes, referring to the maximum amount of concurrent crimes with punishment prescribed for a violation of the Medical Service Act with heavier punishment)

1. Detention in a workhouse;

Defendant 2 and Defendant 4: Articles 70(1) and 69(2) of the Criminal Act

1. Suspension of execution;

Defendant 1: Article 62(1) of the Criminal Act (The following extenuating circumstances among the reasons for sentencing)

1. Order of provisional payment;

Defendant 2 and Defendant 4: Article 334(1) of the Criminal Procedure Act

1. The scope of punishment by law;

(a) Defendant 1: Imprisonment for not more than seven years and six months;

(b) Defendant 2: Fines not exceeding 13 million won;

(c) Defendant 4: Fines not exceeding 10 million won;

2. Determination of sentence;

A. Defendant 1

Defendant 1, as the head of ○○ Hospital, had the employees, Defendant 2, Defendant 4, and Co-Defendant 5 of the first instance trial, etc., as an employee, had been hospitalized in ○○ Hospital by inducing a large number of homeless persons on 34 occasions such as providing transportation prohibited under the Medical Service Act, promising to provide money and valuables, etc., thereby disturbing the order in the medical market. The final responsibility lies with Defendant 1; Defendant 1 was placed in the hospital; Defendant 2 was discharged from the hospital upon receiving an application for discharge from the hospital by non-indicted 2; Defendant 1 was detained as a director of the mental hospital; and Defendant 2 did not confirm the intention of discharge from

However, it appears that Defendant 1 treated the homeless patients and did not discharge them even after receiving an application for discharge for continuous treatment, and it appears that the homeless persons were hospitalized in ○○ Hospital for the purpose of resolving or treating them, and that Defendant 1 did not have any criminal record, etc. can be viewed as favorable circumstances.

All such circumstances and other factors as the Defendant’s age, character and conduct, environment, motive, means and consequence of the instant crime, and the conditions of sentencing as shown in the pleadings of the instant case, including the circumstances after the crime, shall be determined as per the disposition.

B. Defendants 2 and 4

Defendant 2 and Defendant 4: (a) inducedd the homeless to be hospitalized at ○○ Hospital by providing them with means of transportation or promising to provide money or goods at the Seoul Station, etc.; (b) led Defendant 2 to commit an offense, such as ordering Defendant 4 and Co-Defendant 5 of the first instance trial; and (c) the fact that the order in the medical market was disturbed due to the commission of the above Defendants’ crime is unfavorable.

However, the above Defendants, as staff members of the ○○ Hospital, could have induced patients to a homeless person according to the instructions of the homeless person, and could not have received any separate allowances following the patient inducement; Defendant 4 caused the crime under the instructions of Defendant 2; Defendant 2 should take into account the equity in the case of Defendant 2 who was tried together with the final crime.

In addition to these circumstances and other circumstances, the defendants' age, character and conduct, environment, motive, means and consequence of the instant crime, and the conditions of sentencing as shown in the instant pleadings, including the circumstances after the crime, shall be determined as ordered in full view of all the following factors.

1. Violation of the Medical Service Act due to Defendant 1, Defendant 2, and Defendant 4’s inducement for profit and inducement of patients for profit;

The summary of this part of the facts charged is the same as the above 2.C. 1., and each for-profit inducement constitutes a case where there is no proof of crime as seen in the above 2.3. A. The violation of the Medical Service Act due to the inducement of patients for profit-making purpose constitutes a case where there is no proof of crime, and the remaining part of the crime other than the attached list 1 of the crime sight table of the above defendant is found guilty. However, inasmuch as the above defendant is found guilty of the violation of the Medical Service Act due to the inducement of patients for profit-making purpose with the relation of commercial competition and comprehensive crimes, it shall not be sentenced separately in the disposition of the above defendant.

2. Violation of the Mental Health Act and the point of detention due to Defendant 1’s refusal to comply with the discharge request against Nonindicted 3

The summary of this part of the facts charged is that the patient Non-Indicted 3, who was induced by Defendant 1 for profit and hospitalized in the closed ward, continued to be detained in the closed ward without releasing the patient even though he requested the discharge.

The facts charged in this part of the facts charged constitute a case where there is no proof of a crime as seen in the above 2. D.3(a) and 2.3(b)(2) and thus, the judgment of not guilty under the latter part of Article 325 of the Criminal Procedure Act and the summary of this part of the judgment should be publicly announced in accordance with Article 58(2) of the Criminal Act.

[Attachment Form 5]

Judges Yoon Jin- (Presiding Judge) Lee Jin-young

(1) The part that Defendant 4’s confession is reliable is part of the part that Defendant column indicated as “Defendant 1, Defendant 2, and Defendant 4,” and the part that the confession of Defendant 5 is reliable is the part that indicated as “Defendant 1, Defendant 2, and Defendant 5” in the first instance trial.

(2) Article 27 (Prohibition of Unlicensed Medical Practice, etc.) (3) No person shall 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, or instigate such act: Provided, That any of the following acts may be allowed:

Note 3) The specific details are as indicated in the annexed list of crimes found guilty (other than Nos. 3, 4, 16, 22, which the court below found guilty).

Note 4) The part is indicated as Defendant 1, Defendant 2, Defendant 4, and Defendant 1, Defendant 2, and Defendant 5).

Note 5) Defendant column is the part indicated as Defendant 1 and Defendant 2.

Note 6) Of the annexed list 1, the part not included in the list of crimes found guilty in the annexed list of crimes.

Note 7) The specific details are as shown in the annexed list of crimes found guilty (Provided, That the part which the court below found guilty is excluded).