2015 High Court Order 995 Violation of Medical Service Act

1. A herb doctor;

Residential 00 :

00. Reference domicile

2. A assistant nurse B;

Residential 00 :

00. Reference domicile

Kim Gi-su (prosecutions), Man-Gyeong, and Man-dong (Trial)

Law Firm 00

Attorney 000

April 1, 2016

Defendant A shall be punished by a fine of two million won, and Defendant B shall be punished by a fine of five hundred thousand won.

If the Defendants did not pay each of the above fines, the Defendants shall be confined in the Labor House for the period calculated by converting each of the KRW 100,000 into one day.

To order the Defendants to pay an amount equivalent to the above fines.

The costs of lawsuit shall be jointly and severally borne by the Defendants.

Criminal facts

Defendant A is a herb doctor who operates 00 '00 Council members' from 00:0 :0 :00 :0 :0 :00 ; and Defendant B and C are employees of the above Council members.

1. The Defendants’ co-principal

No person, other than a medical person, shall perform a medical practice, but Defendant A shall do so.

11. Around 26, around 200, when treating D, who was a patient who was within the above medical clinic, performed a satisfying treatment, and instructed Defendant B, who is not qualified as an assistant nurse, to satisfy, and Defendant B performed an unlicensed medical practice from that time to March 2010.

As a result, the Defendants conspired to conduct medical practice without license.

2. Defendant A

No person, other than a medical person, shall perform a medical practice, but Defendant A shall do so.

11. Around 26, in the course of the treatment of the above D around 200, the treatment was conducted to the return, and thereafter, the treatment was conducted to the non-qualified C, to the maximum extent possible, to be placed, and C was to conduct an unauthorized practice from that time until March 2010.

Accordingly, the defendant conspiredd with C to conduct unlicensed medical practice.

Summary of Evidence

【Paragraph 1 of the Judgment】

1. Statement made by witnesses E in the second protocol of the trial;

1. The fact-finding inquiry (a reply acquired as an assistant nurse)

[Article 2]

1. Defendant A’s legal statement

1. Each statement of witness E and F in the second protocol of the trial;

1. The fact-finding inquiry (a reply acquired as an assistant nurse)

Application of Statutes

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

(a) Defendant A: Articles 87(1)2 and 27(1) of the Medical Service Act, and Article 30 of the Criminal Act (the point of medical practice without a license and the selection of fines);

(b) Defendant B: Article 87(1)2 and Article 27(1) of the Act, Article 30 of the Criminal Act (the point of law of unlicensed medical practice, the choice of fines)

1. Aggravation for concurrent crimes;

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

1. Detention in a workhouse;

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

1. Order of provisional payment;

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

1. Bearing litigation costs;

1. Summary of the assertion

Defendant A and his defense counsel asserts that the crime No. 2 of this decision is as follows.

① At the time, C was undergoing practical training at the Han-won operated by the Defendant in order to take the qualifying examination for assistant nurses, and thus, the Defendant A’s order to cause subsidences to C does not constitute an element of non-licensed medical practice as an assistant to nursing or treatment in the course of practice for assistant nurses permissible under the Medical Service Act, or does not constitute a justifiable act under Article 20 of the Criminal Act. ② Defendant A did not have the perception that the act in its judgment constitutes a crime under the Medical Service Act.

2. Determination

A. 1) The exceptional provisions of the Medical Service Act concerning non-licensed medical practice should be strictly interpreted in light of the legislative purpose of the Medical Service Act. In order to apply for the qualifying examination for assistant nurses, it cannot be viewed as a student of a school specializing in medical, dental, oriental medicine, or nursing, as stipulated in the proviso of Article 27(1)3 of the Medical Service Act, which is an exception to the non-licensed medical practice regulations. (See Supreme Court Decision 2005Do5652, Dec. 9, 2005) and other exceptional provisions concerning the non-licensed medical practice corresponding thereto under the Medical Service Act are not available. Therefore, even if C is in a position of an assistant nurse being provided with practice training at the assistant nurse’s operator to apply for the qualification examination for assistant nurses, it is not allowed to place the person who is a medical practice, as stated in its reasoning, in order to put him/her into the position of being provided with such training.

2) In addition, even if a physician verbally instructed an assistant nurse, etc. to mean the act of assisting the assistant nurse in the medical treatment performed by a physician as the principal agent, if the assistant nurse actually performed the medical treatment, it cannot be deemed as an act of assisting the assistant nurse (see Supreme Court Decision 2009Do1337, Sept. 24, 2009). In light of the fact that a person undergoing practical training at a medical institution is required more strict guidance and supervision in the course of the practical training for applying for the qualifying examination for assistant nurse. However, according to evidence duly adopted and examined by the court, C was directly affected by the defendant’s invasion, or was placed directly under the oral instruction from the defendant A to the close end of the procedure, and the defendant did not appear in the course of the procedure and did not appear in the part of the assistant nurse’s instruction and supervision as part of the training for assistant nurse, and the allegation that the assistant nurse did not appear in its reasoning as part of the education for assistant nurse.

B. As to the assertion that there was no awareness that he was a crime under the Medical Service Act

However, even if Defendant A believed that his act does not constitute a crime under the Medical Service Act, in the instant case where there is no circumstance to view that the above Defendant had been making a serious effort to avoid the illegal act due to his intellectual ability because he had been able to consider or inquire about the possibility of his illegal act (see, e.g., Supreme Court Decision 2008Do590, Mar. 25, 2010), there is no justifiable reason for the Defendant to believe that the above act was not a crime under the Medical Service Act. The assertion on this part of Defendant A and the defense counsel is without merit.

Judges Kim Jong-hoon