2017 High Court 503 Violation of the Medical Service Act

A

He/she shall file a prosecution on his/her own, or hold a public trial on his/her own;

Law Firm Onnuri, Attorney Kim Hong-tae

Attorney Lee Jae-sung

November 30, 2017

The accused shall notify publicly the summary of the judgment of innocence.

1. Summary of the facts charged

The defendant is a doctor to establish a Council member of the Department C in Jeonju-si, Jeonju-si B.

No medical person may engage in medical service without establishing a medical institution under this Act, and any special case.

(1) Except as provided, medical services shall be provided within the medical institution.

Nevertheless, from around July 5, 2014 to October 31 of the same year, the Defendant provided medical services by visiting 58 patients on a regular basis from each week's demand day and Saturday to each day from the "Fanium", a medical institution established by doctors E located on the nine floors of Seocho-gu Seoul Metropolitan Government D building, Seocho-gu, Seoul, to each day.

2. Determination

A. Article 33(1) of the Medical Service Act provides that "a medical person shall not engage in medical service unless he/she establishes a medical term under this Act, and shall provide medical service within such medical institution except in any of the following cases." Article 90 of the Medical Service Act provides that "a person who violates Article 33(1) shall be punished by a fine not exceeding five million won." Therefore, in order to fall under Article 90 or 33(1) of the Medical Service Act, a medical person shall provide medical service at a place other than his/her medical institution.

B. Meanwhile, Article 27(1) of the Medical Service Act provides that "no person, other than a medical person, shall perform any medical practice, and no medical person shall perform any medical practice other than those licensed," and Article 3(1) of the Medical Service Act provides that "a medical institution" means a place where a medical person conducts medical or midwifery business (hereinafter "medical service") for the public or many specific people."

The Medical Service Act does not have a general definition of medical practice. The Supreme Court held that the act of preventing or treating a disease caused by medical treatment, diagnosis, prescription, medication, or surgical treatment based on the experience and function based on medical expertise, and other acts that may cause harm to public health and sanitation if not performed by medical personnel (see, e.g., Supreme Court Decision 2006Do9083, May 27, 2010).

In full view of the above provisions of the Medical Service Act, interpretation of medical practice, etc., a medical person may conduct medical practice within the scope of license. However, in principle, a medical institution is established to conduct medical practice only within the relevant medical institution. Therefore, medical practice and medical practice under the Medical Service Act may not be deemed as identical to medical practice under the latter part of Article 33(1) of the Medical Service Act. As such, Article 17 of the Medical Service Act provides that a medical person who engages in medical practice at a medical institution is presumed to be the same as that of medical practice under Article 33(1) of the Medical Service Act. If a medical person who conducts medical practice at a medical institution is deemed to be the same as that of medical practice under Article 33(1) of the Medical Service Act, it is unreasonable that a medical

C. According to the accusation (Evidence No. 2) and investigation report (Evidence No. 17) submitted by the prosecutor, the head of Seocho-gu Seoul Seocho-gu Public Health Center filed a complaint on the ground that the person who established a medical institution did medical practice at another medical institution and violated Article 33(1) of the Medical Service Act by providing medical practice at the other medical institution. The Minister of Health and Welfare sent a reply to the purport that the person who established a medical institution cannot be an exception to the application of Article 33(1) of the Medical Service Act because the person did not provide medical service at the same time as the medical practice provided by Article 33(1) of the Medical Service Act. However, the Medical Service Act does not consider that the person who provided the medical service differs from the medical service and the medical practice. "The head of a medical institution may provide medical treatment to a medical person who does not belong to the medical institution if necessary for the medical treatment of the patient."

D. Therefore, in the instant case, solely on the ground that the Defendant performed medical practice at the Fanium, a medical institution established by E, a medical institution established by himself/herself (hereinafter “instant hospital”), the Defendant cannot be deemed to have violated Article 33(1) of the Medical Service Act. Only if the Defendant is recognized to have engaged in medical practice at the instant hospital, the said provision may be deemed to have been violated.

E. We examine whether the Defendant engaged in medical service at the instant hospital

As seen earlier, the Medical Service Act separates the medical practice and the medical practice; the industry has the prior meaning of continuing to engage in the medical practice for a certain period according to its aptitude and ability to maintain livelihood as the end of the occupation; providing medical practice under employment by a medical institution established by another person cannot be deemed as running the medical practice; and the head of a medical institution can provide medical treatment to a medical person who is not affiliated with the medical institution if necessary for the medical treatment of the patient; in order to deem that a medical person is engaged in the medical practice, it is insufficient to deem that the medical practice continues and repeated; and that the performance through the medical practice belongs to the medical person.

The following circumstances acknowledged as evidence by the court legitimately adopted and examined by the court: ① A was engaged in a medical institution established by the defendant and opened the instant hospital; ② the Defendant was given medical treatment at the instant hospital twice a week in the demand day and Saturdays; ② E was grounded on the demand day and Saturday of the Defendant’s visit; and the Defendant was in the course of the sama operation while visiting the sama operation mainly conducted by E in the instant hospital.

In full view of the fact that the Defendant continued to engage in medical practice in the instant hospital on a certain date and repeatedly, it is difficult to deem that he/she engaged in medical practice even if he/she engaged in a part of the ice surgery, taking into account the fact that he/she performed medical practice, which is cut off in the inside-gu, a part of the ice surgery, and that the Defendant was found to have been proven to the extent that he/she excluded a reasonable doubt, even if he/she gather evidence submitted by the prosecutor.

3. Conclusion

Therefore, the facts charged in this case constitute a case where there is no proof of crime, and thus, a judgment of innocence is rendered pursuant to the latter part of Article 325 of the Criminal Procedure Act, and a summary of the judgment of innocence is publicly announced pursuant to

Judges Noh Jeong-ho