Whether a doctor’s act of hearing the patient’s attitude by telephone or image without face-to-face with the patient and issuing a prescription, etc. based on the patient’s own judgment constitutes a case where a person, other than “a doctor who conducted a diagnosis by himself” under Article 18(1) of the former Medical Service Act or “a doctor who conducted a direct diagnosis” under Article 17(1) of the former Medical Service Act as amended on April 11, 2007, issues a prescription, etc. (negative)

Article 18(1) of the former Medical Service Act (wholly amended by Act No. 8366 of Apr. 11, 2007) provides that no diagnosis, autopsy, certificate, or prescription (hereinafter “medical prescription, etc.”) shall be prepared and issued to a patient. Article 17(1) of the former Medical Service Act (wholly amended by Act No. 8366 of Apr. 11, 2007) provides that “A patient may not prepare and deliver a prescription, etc., unless he/she “a person directly engaged in medical service” or “a person directly engaged in medical examination.” The foregoing provision is merely a provision prohibiting issuing a prescription without a medical examination or by itself, and it does not prohibit any face-to-face medical examination or issuing a prescription without a sufficient medical examination. Therefore, it cannot be deemed that a person directly engaged in a medical examination or issuing a prescription without a medical examination under the principle of no punishment without a law.”

Article 12(1) of the Constitution of the Republic of Korea; Article 1(1) of the Criminal Act; Article 18(1) of the former Medical Service Act (wholly amended by Act No. 8366 of Apr. 11, 2007; see current Article 17(1)); Article 68 (see current Article 89); Article 1, 17(1), (2), (3), (4), 33, 34, and 89 of the former Medical Service Act (wholly amended by Act No. 9386 of Jan. 30, 2009);

Defendant

Defendant

Law Firm Chungcheong, Attorneys Kim Jin-hwan et al.

Seoul Eastern District Court Decision 2009No757, 2009 early 1413 decided January 7, 2010

The conviction part of the judgment of the court below against the defendant is reversed, and that part of the case is remanded to the Seoul Eastern District Court Panel Division.

The grounds of appeal are examined.

1. A penal provision shall be strictly interpreted and applied in accordance with the language and text, and shall not be extensively or analogically interpreted to the extent unfavorable to the defendant. However, it does not violate the principle of no punishment without the law to systematically interpret a penal provision that clearly states the logical meaning of the language and text in consideration of the legislative intent and purpose within the scope of the possible meaning of

2. Article 18(1) of the Medical Service Act, which was wholly amended by Act No. 8366 of Apr. 11, 2007, provides that no diagnosis, autopsy, certificate, or prescription (hereinafter “medical prescription, etc.”) shall be prepared and issued to the patient (hereinafter “before the amendment”), and Article 17(1) of the Medical Service Act (wholly amended by Act No. 8366 of Apr. 11, 2007) provides that “A doctor who engages in medical service and directly conducted a medical examination,” or “a doctor who directly conducted a medical examination,” shall not prepare and issue a prescription, etc. to the patient (hereinafter “after the amendment”). In addition, the amendment shall be referred to as “instant provision”).

In light of the language and text of the aforementioned provision before the amendment, it is clear that only “the doctor who conducted a medical examination” can issue a prescription, etc., even if the doctor himself/herself, should not issue a medical record or prescription for the patient in the same case as he/she listens to the contents of the medical examination. It is not clear that the provision restricting the subject of issuance, such as a prescription, etc., does not stipulate the limitation or scope of the method of medical examination. There are various methods such as diagnosis, diagnosis, and that the method of diagnosis is limited only to a case where the doctor conducted a face-to-face medical examination. This does not mean that the interpretation of a penal provision goes beyond the inherent limitation that “the possible meaning of the words,” and thus, it goes against the principle of no punishment without law. Therefore, if the doctor does not directly face the patient, but does not intend to issue a prescription for the patient by telephone or image, etc., and thus, it does not require a clear interpretation of the provision of criminal punishment, such as the provision of a prescription for the patient’s own examination and treatment.

3. The meaning of “direct examination” under the provision following the amendment ought to be deemed as identical to “the doctor who conducted a diagnosis by the self-examination” under the preceding provision before the amendment. The reasons are as follows.

The literal meaning of “directness” as used in the above provision refers to the relationship directly connected without a third party or intermediary. As such, it is difficult to readily conclude by interpretation of the language alone whether the “direct diagnosis” includes the intention of examination by telephone, etc. Therefore, within the possible meaning of the text, systematic and logical interpretation that clearly expresses the meaning of the text according to the systematic relationship that takes into account the legislative intent, purpose, etc. of the provision.

However, the proviso of Article 17 (2) of the above amendment provides that “If a doctor who has directly examined a patient is unable to issue a medical certificate, a written autopsy or a certificate due to unavoidable reasons, another doctor who works for the same medical institution may deliver the medical certificate, written autopsy or certificate, etc., according to the patient’s medical records, etc.” Thus, in the interpretation of the proviso, the above “direct examination” can be deemed to mean the diagnosis of “self-determination.” In addition, Article 17 (2) of the above amendment provides that a doctor, etc. shall not issue a certificate of birth, death, or stillbirth, unless he/she is engaged in the medical service and directly helps any patient, etc., and Article 17 (3) of the above amendment provides that a doctor, etc. is requested to issue a medical certificate, written autopsy, written autopsy, or written certificate for the person who has conducted the diagnosis or examination. Article 17 (4) of the same Act provides that a doctor, etc. shall not refuse to issue a certificate of birth, death, or stillbirth for his/her own meaning in the same meaning as “direct”.

On the other hand, the reason for the amendment stated in Article 8366 of the above Act is only "to write down the text of the law in Korean language with an easily difficult term, and to adjust complicated sentences and to ensure easy and simpleness by arranging the system."

In addition, Article 34(3) of the Medical Service Act uses the term "direct medical examination", while Article 34(3) of the same Act uses the term "direct face-to-face medical examination", distinguishing between "direct medical examination" and "direct face-to-face medical examination" within the Medical Service Act. Since Articles 33 and 34 of the Medical Service Act provide separate provisions regarding the scope of remote medical treatment permissible, it can be deemed that the act of telephone medical examination corresponds to the system of the Medical Service Act.

In addition, the purpose of the Medical Service Act is to protect and improve the health of the people by providing for matters necessary for the national medical fees so that the people can benefit from high-quality medical care (Article 1), and there is no reason to prohibit the operation of the system in the direction of promoting the convenience of the people within the extent that does not go against it, and there is a means to prevent abuse of non-faced medical care by allowing non-faced medical treatment only within the limited extent through the operation of the national health insurance system, or by adjusting the insurance fees, and it is also necessary to consider that many countries around the world are changing to the direction of expanding the scope of telemedicine.

4. As above, the provision of this case before and after the amendment is only a provision prohibiting the issuance of a prescription without a medical examination by itself, not a provision prohibiting the general public of issuing a prescription without a face-to-face medical examination or without a sufficient medical examination. Therefore, the principle of no crime of no punishment without the law, in particular, the fact that a telephone medical examination was conducted in accordance with the principle of no punishment without the law of no punishment without the law, cannot be viewed as “self-examination” or “direct medical examination.”

Meanwhile, the Defendant’s act of issuing the Defendant’s prescription indicated in the facts charged exists both before and after April 28, 2007 when the amended provision came into effect. As such, whether each of the acts constitutes a violation of the instant provision ought to be separately examined before and after the amendment.

Nevertheless, the court below affirmed the judgment of the court of first instance which convicted the Defendant of the violation of the provision of this case by failing to directly examine the patients who visited a hospital more than once before and receive medical treatment, and by preparing a prescription in the name of the patient via telephone, etc., without distinguishing the provision of this case before and after the above amendment, and by failing to distinguish the provision of this case before and after the above amendment, the medical examination by telephone or other similar communications media is not included in the "direct medical examination" of the provision after the amendment. Thus, the court below erred by misapprehending the legal principles as to the principle of no punishment without law, thereby affecting the conclusion of the judgment.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part of the judgment of the court below which found the Defendant guilty is reversed and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided by the assent of all participating Justices

Justices Kim Chang-suk (Presiding Justice)