2014Do6426 Fraudulent

A

Prosecutor

Attorney S

Busan District Court Decision 2013No3578 Decided May 2, 2014

April 26, 2017

The dismissed part of the judgment below shall be reversed, and that part of the case shall be remanded to Busan District Court.

The grounds of appeal are examined.

1. Whether the facts charged can be specified clearly by specifying the date, time, place, and method of the crime

a record (Article 254(4) of the Criminal Procedure Act). This specifies the subject matter to be tried by the court and the accused.

The purpose of this study is to facilitate the exercise of the right of defense only within the scope of the defense.

Ga. The facts charged are to the extent that the identity of the facts charged can be distinguished by integrating the above elements.

c. Therefore, the date, time, place, method, etc. of a crime are specified in the indictment.

A public prosecution is not brought against the intent of the law which provides for the specification of the facts charged, even if not indicated;

If it is inevitable to indicate the generality in light of the nature of the crime instituted, the contents of the prosecution are not specified.

not illegal. In particular, in the case of a single comprehensive crime, it does not constitute part of the crime.

the time and termination of the entire offence, the method of the offence, even if the individual offence is not specifically specified;

If the victim or the other party, the frequency of the crime or the aggregate of the amount of damage, etc. are specified, this crime is unique.

It should be determined (see, e.g., Supreme Court en banc Decision 2002Do807, Jun. 20, 2002).

2. The summary of the fraud among the facts charged in the instant case is as follows: “The Defendant does not have a herb doctor’s license.”

Medical care for non-licenseed treatment, such as beer, bed, sulfur, oriental medicine preparation, etc., in the name of the G Institute established and operated.

After performing acts, medical expenses from the National Health Insurance Corporation shall be paid for unlicensed medical acts.

Notwithstanding the fact that the defendant could not receive a medical doctor's license, I, etc. has a medical doctor's license.

as if the patient was a disguised person and at the same time, the patient's medical expenses for unrefising the frequency of medical treatment.

On June 12, 2008, the Defendant considered the victim to the National Health Insurance Corporation on June 12, 2008.

On May 208, 2008, medical expenses for treatment without a license and medical treatment as mentioned above are claimed.

The victim who believed the truth by filing a claim for medical expenses excessively appropriated in the frequency of charge manipulation, etc.

On July 2, 2008, 3,594,990 won was paid under the name of the medical expenses to be borne by the Corporation. In addition, the Defendant was paid.

Do from around that time to July 18, 2013, as shown in the list of crimes in attached Form 1 of the first instance judgment, shall be avoided.

Degnating the perpetrator and then providing a total of 198,066,680 won over 51 times in total from the victim

It is the fact that ‘the person received'.

3. As to the above, the lower court: Defendant’s claim for medical expenses against the National Health Insurance Corporation and its substitute

The examination of the National Health Insurance Corporation shall be conducted by a series of medical treatments performed for each individual patient.

If the defendant claims excessive medical expenses in the same manner as the facts charged, and the medical expenses are excessive.

Whether fraud was obtained or not shall be based on each medical treatment claimed by the defendant.

In the indictment of this case, the date on which the defendant claims medical expenses every month, the total number of months of medical treatment, and the medical personnel

The medical treatment which is the subject of the claim for the medical expenses is specified only in the total monthly amount of the fee.

for lack of fault, the court below's judgment that the defendant was employed by the defendant during the medical expenses claimed by the defendant

Defendant who asserts that the medical treatment properly performed is included therein;

section 1 of this section shall be false or section 1, and any part of the charge shall be determined.

Since it cannot be determined whether it was received and it is also the same as the court, this part of the facts charged is unique.

As it is difficult to regard the institution of public prosecution as prescribed by Article 327 subparagraph 2 of the Criminal Procedure Act.

It determined that the procedure for filing a public prosecution constitutes "when it is null and void because of its violation of the provisions of law."

Pursuant to the Act, only violation of the Act on Special Measures for the Control of Public Health Crimes among the facts charged in the instant case shall be convicted.

Recognizing the above fraud, the prosecution was dismissed.

4. However, it is difficult to accept the above determination by the lower court for the following reasons.

A. According to the reasoning of the judgment and the record, the following circumstances are revealed.

1) The annexed list of crimes in the judgment of the court of first instance, which is part of the facts charged in the instant case, is the defendant every year.

The date of claim for the medical expenses to be borne by the Corporation, the claims (number of statements, the amount of claims), and

The details of the partnership (the number of the statements, the amount of the trial decision), the date of payment, the amount paid, and the date of the medical treatment;

The above list of crimes is the National Health Insurance Corporation, which requested the investigation of the defendant.

Medical expenses claimed and received by the defendant during the corresponding period specified in the facts charged by the head of Busan Regional Headquarters

the same content as the submission of the statement, the defendant's claim during the pertinent period.

It seems that all the details received are inclusive.

2) On the first trial date of the court of first instance, the prosecutor shipping ‘the details of payment of individual medical expenses' as reference materials.

A. The details that the medical expenses were claimed and paid to the National Health Insurance Corporation in the name of Ginwon.

As a result, the Busan Regional Headquarters of the National Health Insurance Corporation was submitted to the investigation agency.

Resident registration number, date of commencement of treatment, date of examination and treatment, details of request by each person (the date of request, the date of request, the principal soldier, the total medical expenses;

The Corporation's charge, the principal's charge, the details of the payment (payment date, general medical expenses for the trial decision, the cost of the trial decision, the cost of the trial decision

The details of each medical expenses are included.

3) The defendant is employed by the defendant among the amount obtained by deceit listed in the above crime sight chart at the court below.

The above "individual" assertion that the qualified herb doctor's part of the medical treatment was included;

The daily part of the medical expenses he/she provided and employed for each individual medical expenses entered in the payment of the medical expenses.

After indicating the part of the doctor's medical treatment, the doctor's act of non-licensed medical treatment is based on this.

The number of cases recognized as such and the amount of medical expenses shall be adjusted by the corresponding month and submitted to the court of original judgment.

was made.

B. Based on the above circumstances, examining the facts charged in the instant case in light of the legal principles as seen earlier.

The prosecutor has been established by the G Institute by a person who is unable to properly establish a medical institution.

on the premise that the act of deception is the content of the specific act of deception, ① the act of deception without a license.

as if the medical practice was conducted by an unqualified medical person, and ② the frequency of medical treatment;

(1) The period during which a public prosecution has been instituted shall be specified as the action claiming the medical expenses even if there was no actual medical treatment;

The public prosecution was instituted by stating the total amount of the medical expenses requested and paid to him/her in the amount of fraud.

Ultimately, the facts charged in the instant case are examined as follows: Unlicensed Medical Practice

Although the related parts and the frequency of medical treatment are mixed with the parts in which the individual claims are collected, anywhere the individual claims are included.

(1) Whether the details of the claim against the victim do not constitute a legitimate medical expenses regardless of whether the claim is received;

The purport of deceiving the person as if he had been duly entitled to medical benefits.

The above deception can be seen as a substitute to the National Health Insurance Corporation, the same victim.

51 times in total, fraud of property by deceiving as if there was a normal medical treatment.

Since the singleness and continuity of the defendant's crime are sufficiently recognized and the legal benefits of damage are the same.

The whole crime constitutes a single comprehensive crime. Therefore, a single comprehensive crime in the facts charged in the instant case should be committed.

The whole, even if the form of each action was not individually identified,

The time and termination period of crimes, methods of crimes, victims, frequency of crimes, total amount of damages, etc. are specified.

Criminal facts are sufficiently specified, and the subject of the trial is unclear or the accused is not specified.

In addition, it cannot be deemed that difficulties in defense have occurred.

Therefore, the court below's indictment is unlawful on the grounds that the facts charged in this case are unspecified.

It is not readily concluded, but the prosecutor's specific attitude of deception is unique to the above ① and ② acts.

Then, it is clear whether the indictment was made or not, if so, a non-licensed license.

by clarifying the facts of the part concerning which the defendant is not a medical practice and making a judgment of not guilty or not guilty

I would be exempted.

C. Nevertheless, the lower court cannot be deemed to have specified the instant facts charged regarding fraud.

For this reason, ex officio dismissed a part of the public prosecution. In doing so, it is about the specification of the facts charged.

misunderstanding of legal principles or failure to exhaust all necessary deliberations, which affected the conclusion of the judgment.

The ground of appeal assigning this error is with merit.

5. The dismissed part of the judgment below is reversed, and this part of the case is remanded for further proceedings consistent with this Opinion.

The case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

section 3.

The presiding judge shall keep the record of the Justice

Justices Park Jae-hee in charge

Justices Park Young-young

Justices Kim Jae-in