(영문) 대구지방법원 2015.9.25.선고 2014노4356 판결

Article 41 of the Medical Service Act cannot be deemed to be limited to a place where a person on duty works in accordance with the provision of Article 41 of the Medical Service Act. In the case of a convalescent hospital where there is no need for an urgent medical treatment of an emergency patient in accordance with the legislative purport of the Medical Service Act and the Enforcement Decree of the Medical Service Act, medical personnel on duty may be placed in accordance with its own standards pursuant to Article 18(2) of the Enforcement Decree of the Medical Service Act. Thus, once the defendant has placed an doctor on duty in a manner of waiting for an emergency call while staying in his/her residence within a four-minute distance from the outside of the hospital, the defendant cannot be deemed to have violated Article 41 of

2. Ex officio determination

The grounds for appeal by the defendant are examined ex officio prior to determining the grounds for appeal.

A. Summary of the facts charged in this case

The Defendant is a person who operates the “○○○○○ convalescent Hospital in Daegu-gu.” Despite having medical personnel on duty necessary for the treatment of emergency patients and inpatients, the Defendant operated the said hospital without having approximately 130 patients on duty at the said ○○○○ convalescent Hospital from around 00 to June 25, 2014.

(b) Related statutes;

The entry in the attached Form is as specified in the relevant statutes.

C. It is essential to delegate to a lower-level law, which is not a law, a matter that limits the freedom and rights of the people, such as the elements for the composition of a crime, to the lower-level law itself, and it is not always possible to delegate it to a lower-level law itself. If a lower-level law has been delegated with the entire subordinate law, as if the law was delegated with the entire subordinate law, it would not be possible to directly stipulate matters that restrict the freedom and rights of the people. If such delegation is allowed, it would result in allowing a lower-level law to directly define and limit the matters that are not a law but a subordinate law. Therefore, it would be directly in violation of the former part of Article 37(2) of the Constitution that provides that the restriction on all freedom and rights of the people shall be allowed only by "the Act" (see Constitutional Court Order 2002Hun-Ga20, Jan. 29, 2004). (2) In accordance with the above legal doctrine, Article 41 of the Medical Service Act only provides that all medical personnel should have the necessary provisions such as medical personnel on duty.

Although Article 18(1) of the Enforcement Decree of the Medical Service Act provides the number of medical personnel on duty to be placed according to the scale of hospital, this provision provides without specific delegation of the law. As such, the subordinate law can not directly provide matters that restrict the freedom and rights of the people as if the subordinate law was delegated by the subordinate law, so a violation of Article 41 of the Medical Service Act, which is punished pursuant to Article 90 of the Medical Service Act, shall be limited to the case where there is no medical personnel on duty, and further punishment for failing to comply with the number of medical personnel on duty under Article 18(1) of the Enforcement Decree of the Medical Service Act shall be in violation of the principle of no punishment without law, which is not based on the punishment without law. (3) According to evidence duly adopted and investigated by the court below, it is recognized that three persons on duty were placed as medical personnel on duty at the time of this case, and the defendant did not violate Article 41 of the Medical Service Act, and the Enforcement Decree of the Medical Service Act, or did not violate the law of no punishment without law.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364 (2) of the Criminal Procedure Act without examining the grounds for appeal by the defendant, and the judgment below is reversed and it is again decided as follows.

In other words, the summary of the facts charged in this case is the same as that of paragraph (1) of the above Article 2, and as seen in paragraph (2) of the above Article 2, the facts charged in this case constitutes a case where there is no proof of crime or no crime, so the defendant is acquitted pursuant to Article 325 of the Criminal Procedure Act, and the summary of the judgment of innocence against the defendant pursuant to Article 58 (2) of the Criminal Act is announced publicly