Defendant 1 and three others

Defendants

Isle (prosecution), original text (public trial)

Attorneys Kim Jong-soo et al.

Seoul Eastern District Court Decision 2017Ma2449 Decided January 11, 2018

The part of the judgment of the court below against the defendants 1, 2, and 4 shall be reversed.

Defendant 1 shall be punished by imprisonment with prison labor for not less than two years and by a fine not exceeding three million won, and by imprisonment with prison labor for not more than six months.

When Defendant 1 fails to pay the above fine, the above defendant shall be confined in a workhouse for the period calculated by converting KRW 100,000 into one day.

However, with respect to Defendant 2, the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

To order the provisional payment of an amount equivalent to the above fine against Defendant 1.

Of the facts charged against Defendant 1, each of the violations of the Medical Service Act due to the establishment of ○○○ and △△△△△△ branch around August 28, 2015, around October 16, 2015, around February 15, 2016, and the violation of the Medical Service Act following the establishment of ○○○○ and △△△ branch around December 20, 2015, around August 20, 2015, around October 2015, and around February 2016, Defendant 4 were acquitted, respectively.

The summary of the judgment of innocence shall be announced to Defendant 1, Defendant 2, and Defendant 4.

Defendant 3’s appeal is dismissed.

1. Summary of grounds for appeal;

(a) misunderstanding of facts (Defendant 3);

Defendant 3 did not request the National Health Insurance Corporation to pay medical expenses or excessive claims for the portion not only the normal medical treatment but also the non-medical treatment. Therefore, fraud is not established.

B. Unreasonable sentencing (defendants)

The sentence of the lower court (Defendant 1: Imprisonment with prison labor of two years and six months and fine of KRW 3 million; imprisonment of August, suspension of execution of two years; Defendant 3: imprisonment with prison labor of June, suspension of execution of two years; and Defendant 4: fine of KRW 5 million) is too unreasonable.

2. Determination

A. Ex officio determination

1) Ex officio, among the facts charged against Defendant 1, the fact that around August 28, 2015, around October 16, 2015, around February 15, 2016, each of the violation of the Medical Service Act due to the establishment of ○○○ and △△△△△△ branch around February 15, 2016, and the violation of the Medical Service Act due to the establishment of ○○○ and △△ branch around December 20, 2015 (a) (b) and (c) and (d) of the facts charged against Defendant 2, around August 2015, 2015, around October 16, 2015, and around February 2016, as to the facts charged against Defendant 4 (hereinafter referred to as “the facts charged against the above Defendants”).

2) The prosecutor prosecuted the charged facts by applying Article 87(1)2 and Article 33(2) of the Medical Service Act (hereinafter “the instant provision”). Since the instant provision is a provision punishing non-medical persons to establish a medical institution, the medical personnel’s participation in the establishment of a non-medical person’s medical institution should be recognized in order to punish the medical person pursuant to the above provision. Therefore, in order to apply the instant provision to the charged facts, the establishment of a non-medical person should be first required, and the following is examined.

A) It is natural to view that a non-medical person has established a medical institution and a non-medical person in a building not originally used for a medical institution. Furthermore, there may be controversy as to whether a non-medical person can be deemed an establishment of a medical institution even when a non-medical person takes over a medical institution. However, the Supreme Court held that even if a non-medical person takes over the medical institution and a medical person of a medical institution already established through Supreme Court Decision 2009Do2629 Decided October 27, 201, it can be deemed that the establishment of a non-medical person can be deemed as a new establishment and operation of a medical institution when it can be deemed that the former founder took over the medical institution and a medical person of a already established medical institution.

B) Article 33(2) of the Medical Service Act provides that “non-medical persons shall not establish a medical institution,” and there is no explicit provision regarding the operation of non-medical persons. However, in the event that non-medical persons changed the name of the founder in the course of operating a medical institution after establishing the medical institution, and where it is interpreted that the “operation” is included in the “establishment” under Article 33(2) of the Medical Service Act, it is subject to determination as to whether non-medical persons changed the name of the founder in the course of operating a medical institution as well as whether a non-medical person conspireds for the operation of a non-medical person and a non-medical person as well as whether it constitutes the establishment of a new medical institution. As such, first of all, whether the “establishment” is included in the

Unlike punishing the establishment and operation of a non-medical person under Articles 4(2), 33(8) and (10), and 64(2) of the Medical Service Act, the Medical Service Act clearly distinguishess the establishment and operation of a medical person under Article 109(2) and Article 34(4) of the Attorney-at-Law Act, the Medical Service Act provides that only the establishment and operation of a non-medical person shall be punished, but does not provide any particular penal provision for the operation of a non-medical person. If a medical person lends his/her license in relation to the operation of a non-medical person, it is possible to cancel his/her license for a medical person pursuant to Article 65(1)4 of the Medical Service Act, and if a medical person provides medical services under employment of a non-medical person without a license, it is possible to impose criminal punishment for a medical person under Article 90 of the Medical Service Act. Therefore, it is not possible to interpret that a new concept of "establishment and operation of a medical institution" should be included in the establishment and operation of a new penal provision.

According to the records of this case, Defendant 1, on June 23, 2015, opened the third floor of the building located in Gangnam-gu Seoul ( Address 1 omitted), with the founder as Defendant 3, opened the first ○○○○ and △△△△△△△△△△△, the date and time indicated in the facts charged while operating the building, respectively, changed the name of the founder on August 28, 2015, October 16, 2015, and February 15, 2016. On September 4, 2015, the founder of the building located in Jung-gu, Seoul ( Address 2 omitted) as Defendant 3, operated the first ○○○○ and △△△△△△△△△△△△△△, etc., which was the date and time indicated in the facts charged, and it is difficult for the founder of the new medical institution to find the change of the name of the first △△△△△△△△△△△, etc., to the extent that it did not change the name before and after the change.

3) Therefore, the issue of the facts charged is that there is no proof of crime or it is not guilty. Of the judgment below, the part against Defendant 1, Defendant 2, and Defendant 4 is erroneous in the misapprehension of the Medical Service Act or in the misapprehension of legal principles as to the crime of aiding and abetting in violation of the Medical Service Act, which affected the conclusion

4) However, despite the above reasons for reversal of official authority, Defendant 3’s assertion of misunderstanding of facts and of unreasonable sentencing are still subject to the judgment of this court, and this is to be examined below.

B. Judgment on Defendant 3

1) Judgment on the assertion of mistake of facts

As long as ○○○○ and △△ established in violation of Article 33(2) of the Medical Service Act, Defendant 1 claimed expenses for benefits as if the ○○○○ and △△△ were a medical care institution lawfully established under the Medical Service Act while operating ○○○ and △△△△△, and received medical care benefit costs from the National Health Insurance Corporation constitutes fraud, which constitutes deception of the National Health Insurance Corporation (see, e.g., Supreme Court Decision 2016Do6910, Jul. 22, 2016). Therefore, Defendant 3’s allegation of mistake of facts is without merit.

2) Determination on the assertion of unreasonable sentencing

In full view of the factors indicated in the record of the instant case, the lower court’s sentencing against Defendant 3 appears to have been appropriately determined by fully considering all the circumstances, including the various sentencing grounds asserted by Defendant 3, and no special circumstance exists to the extent that the lower court’s sentencing is changed. Accordingly, the allegation of unfair sentencing by Defendant 3 is without merit.

3. Conclusion

Therefore, the part of the judgment of the court below on Defendant 1, Defendant 2, and Defendant 4 is reversed, and the part on Defendant 1, Defendant 2, and Defendant 4 among the judgment of the court below under Article 364(2) of the Criminal Procedure Act is reversed without examining the above Defendants’ assertion of unfair sentencing. The part on Defendant 1, Defendant 2, and Defendant 4 among the judgment of the court below is again decided after pleading. Since Defendant 3’s appeal is without merit, it is dismissed under Article 364(4) of the Criminal Procedure Act. It is so decided

The facts constituting the crime acknowledged by this court are as follows: (a) and (c) and (d) of the facts constituting the crime of the judgment below, and (2) of the judgment below, "the defendant deleteds the above defendant 1's act of violation of the Medical Service Act by aiding and abetting the above defendant 1's act of violation of Article 369 of the Criminal Procedure Act by aiding and abetting the defendant 1 to establish dental clinics in the name of the above defendant 3, as described in Article 1-A-1 of the judgment of the court below; and (b) around June 5, 2015, the defendant collected brokerage fees from the defendant 1, who is not a dentist, from the Gangnam-gu Seoul ( Address 1 omitted); and (c) the third floor ○○○○ and the △△△△△△ branch office, and introducing the above defendant 1, a dentist, as mentioned above, to the above defendant 1 as an employment doctor."

1. Each oral statement of Defendant 1 and Defendant 2 at each trial;

1. Each of the original judgments made by the witness Nonindicted 2, Defendant 4, Nonindicted 3, Nonindicted 4, and Nonindicted 5

1. Records of seizure and the list of seizure;

1. Investigation report (radiation image list), investigation report (investigation into the details of medical care benefits at the ○○ and △ Point), investigation report (the date and time, etc. related to public health crimes of Defendant 1), investigation report (the investigation into the bank account);

1. Submission of data upon a request for cooperation in investigation;

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

A. Defendant 1: Articles 87(1)2 and 33(2) of the Medical Service Act, Article 30 of the Criminal Act (the violation of the Medical Service Act, the choice of imprisonment), Article 5 Subparag. 2 of the Act on Special Measures for the Control of Public Health Crimes, Article 27(1) of the Medical Service Act, Article 30 of the Criminal Act (the point of non-licensed medical practice, the choice of limited imprisonment), Article 347(1) of the Criminal Act, Article 30 of the Criminal Act (the point of fraud, the choice of imprisonment)

(b) Defendant 2: Articles 87(1)2 and 33(2) of the Medical Service Act, and Article 32(1) of the Criminal Act

1. Aid and mitigation;

Defendant 2: Articles 32(2) and 55(1)3 of the Criminal Act

1. Aggravation for concurrent crimes;

Defendant 1: former part of Article 37, Article 38(1)2 and 3, and Article 50 of the Criminal Act

1. Detention in a workhouse;

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

1. Suspension of execution;

Defendant 2: Article 62(1) of the Criminal Act

1. Order of provisional payment;

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

A. Defendant 1

It is recognized that Defendant 1 is divided into a mistake, the medical practice by a doctor was conducted, and there is no evidence that there was an excessive claim for medical care benefit costs. However, Defendant 1, even if not a medical personnel, obtained a medical care benefit while establishing and operating a medical institution, obtained a license by himself/herself, or made a non-medical person conduct a non-licensed medical practice for the purpose of profit-making. Such a crime is highly dangerous as well as dangerous risks that may cause harm to national health, endanger the financial foundation of the national health insurance system, and is highly harmful to the overall order of medical order. Although Defendant 1 had been already punished twice for the same crime, he/she again went to the crime of this case even though he/she had been already punished for the same kind of crime, the age, character and conduct, environment, motive, means and consequence of each of the crimes of this case, and the circumstances after the crime, etc., shall be determined by taking into account all the sentencing conditions shown in the arguments of this case as ordered.

B. Defendant 2

Defendant 2’s mistake is divided. However, in that Defendant 2 introduced Defendant 3 to Defendant 1 so that Defendant 1 may go to the instant crime, the nature and nature of the crime is not good, and in addition, Defendant 2’s age, character and conduct, environment, motive, means and consequence of each of the instant crimes, and the circumstances after the commission of the crime, etc., the punishment shall be determined as ordered in consideration of all the sentencing conditions indicated in the instant argument, including the age, character and conduct, the environment, the motive, means and consequence of each of the instant crimes.

1. Summary of this part of the facts charged

Defendant 1 is a dental sanitarian, Defendant 4 is a dentist.

A. Defendant 1

Although Defendant 1 is not a dentist, he employed a dentist to establish and operate the so-called so-called office hospital (a medical person, such as office director, etc., opened and operated in the name of an employment doctor).

1) Establishment and operation of ○○○○ and △△△△△△ Points

A) On August 28, 2015, Defendant 1, in collusion with Defendant 4 of the dentist, provided equipment necessary for heating treatment, corrective treatment, and sprink treatment on the third floor of Gangnam-gu Seoul ( Address 1 omitted), and changed the name of the founder of the relevant dental clinic to Defendant 4 at the Seoul Gangseo-gu Public Health Center. From around that time to October 15, 2015, Defendant 1 took charge of the operation of the above dental clinic’s facilities, employees, and fund management, etc., and Defendant 4 established a dental clinic, which is not a dentist, by performing dental treatment against the patient who was receiving a monthly salary from Defendant 1 and found at the same time.

B) On October 16, 2015, Defendant 1 conspired with Defendant 5 of the first instance trial co-defendants of the dental clinic, with the aforementioned equipment installed at the ○○○○○ dental clinic located in the said new dental clinic, changed the name of the founder of the said dental clinic to Defendant 5 of the first instance trial. From around that time to February 14, 2016, Defendant 1 took charge of the operation of the said dental clinic’s facilities, employees, and fund management, etc., and Defendant 5 of the first instance trial co-defendants of the said medical clinic established a dental clinic, which is not a dentist, by providing dental treatment to the patients who were receiving monthly salary from Defendant 1 and found at the same time.

C) On February 15, 2016, Defendant 1 conspired with Defendant 6, a dentist, with the aforementioned equipment installed at the ○○○○ dental clinic located in the said new dental clinic. The name of the founder of the said dental clinic was changed to six co-defendants of the first instance trial at the Seoul Gangseo-gu public health clinic. From around that time to March 14, 2017, Defendant 1 took charge of the management of the facilities, employees, and funds of the said dental clinic. Defendant 6, the co-defendants of the first instance court, who received monthly salary from Defendant 1 and found out at the same time, established a dental clinic, which is a medical institution.

2) Opening and operation of ○○○ and △△ Points

Defendant 1 conspired with Non-Party 1 (the Non-Party): around December 20, 2015, Defendant 1: (a) replaced the name of the founder of the above dental clinic to Non-Party 1, a dentist; and (b) around around that time, from around December 12, 2017, Defendant 1 and the above Non-Party 1 were in charge of the management of facilities, employees, funds, etc. of the above ○○○○ dental clinic clinic clinic; and (c) opened a dental clinic as a method of dental treatment for patients, who had been provided with operating expenses from Defendant 1, with the aforementioned Non-Party 1, by which the above Non-Party 1 provided dental treatment for dental treatment; and (d) Defendant 1, who was not a dentist, established the dental clinic, a medical institution.

B. Defendant 2

Defendant 2: (a) around August 2015, at the Gangnam-gu Seoul ( Address 1 omitted)’s ○○○○○○ and △△△△△△△△ Hospital, Defendant 4, a dentist, who received brokerage fees for the establishment of dental clinics under the name of a dentist, was introduced as a new employment doctor; (b) around October 2015, Defendant 2 introduced Defendant 5, a dentist, as a new employment doctor, as a new employment doctor; and (c) introduced Defendant 6, a co-defendant of the first instance trial by the same method, as described in the foregoing Defendant 4, etc., and aided Defendant 1 to establish dental clinics in the name of the above Defendant 4, etc., as described in the foregoing paragraph (a).

C. Defendant 4

Defendant 4 conspired with the above Defendant 1, on August 28, 2015, equipped with the aforementioned equipment at the ○○○○ dental clinic located in the said new dental clinic, and changed the name of the founder of the said dental clinic to Defendant 4 at the Seoul Gangseo-gu Public Health Center. From around that time to October 15, 2015, Defendant 1 took charge of the operation of the above dental clinic’s facilities, employees, and fund management, etc., and Defendant 4, who was receiving monthly salary from the above Defendant 1 and sought medical treatment from the said patients, had Defendant 1, who was not a dentist, establish a dental clinic, a medical institution.

2. Determination

This part of the facts charged constitutes a case where there is no proof of a crime or no crime as stated in the above 2-A-2-A-2, and thus, a judgment of innocence is rendered pursuant to Article 325 of the Criminal Procedure Act, and pursuant to Article 58(2) of the Criminal Act, a summary of the judgment of innocence against Defendant 1, 2, and Defendant 4 is publicly announced. It is so decided as per Disposition.

Judges O Jae Jae-sung (Presiding Judge)