Defendant 1 and two others

Defendant 1, Defendant 2, and Prosecutor (Defendant 2, Defendant 3)

Yellow studios (prosecutions) and panscendums (public trials)

Law Firm Yuil et al.

Incheon District Court Decision 2016Gohap136 Decided August 25, 2017

Of the judgment of the court below, the part on Defendant 2 and Defendant 3 (Counter-board: Defendant 2) shall be reversed.

Defendant 2 shall be punished by imprisonment with prison labor for one year and by imprisonment for ten months.

However, for two years from the date this judgment became final and conclusive, the execution of each of the above punishments against Defendant 2 and Defendant 3 shall be suspended.

To order Defendant 3 to provide community service for 120 hours.

Defendant 1’s appeal is dismissed.

1. Summary of grounds for appeal;

A. Defendant 1’s assertion

(1) misunderstanding of facts or misapprehension of legal principles

The Defendant lent expenses incurred in establishing a hospital to Nonindicted 1, Nonindicted 2, and Joint Defendant 2, and did not operate ○○ Hospital (hereinafter “instant hospital”) in the form of an office-general hospital, and there is no fact that the Defendant acquired the medical care benefit cost by fraud from the National Health Insurance Corporation. Nevertheless, the lower court found the Defendant guilty of charges by misunderstanding the facts or misapprehending the legal doctrine by recognizing the admissibility of the police’s statement made by Nonindicted 3, who is not admissible as a re-specialized statement

(2) Unreasonable sentencing

The punishment sentenced by the court below (two years of imprisonment) is excessively unreasonable compared to the extent of the responsibility of the defendant.

B. Defendant 2’s assertion

(1) misunderstanding of facts

The instant hospital was duly established and operated by the ○○○ Medical Consumer Cooperatives (hereinafter “○○○ Medical Consumer Cooperatives”). Even if Co-Defendant 1 established the instant hospital in violation of the Medical Service Act, the Defendant did not participate in the establishment of the instant hospital and did not have any intention in violation of the Medical Service Act. Furthermore, prior to October 2015, the Defendant was merely in charge of managing the instant hospital’s facilities, and did not participate in the operation of the hospital. Nevertheless, the lower court found the Defendant and Co-Defendant 1 guilty of committing a criminal act and committed an unlawful act that affected the conclusion of the judgment by misunderstanding the fact that the Defendant and Co-Defendant 1 conspired to commit a crime, thereby adversely affecting the conclusion of the judgment.

(2) Unreasonable sentencing

The punishment sentenced by the court below (one year and six months of imprisonment) is excessively unreasonable compared to the extent of the responsibility of the defendant.

C. Prosecutor’s assertion

(1) Mistake of facts (as to the defendant 3)

Although the Defendant participated in the crime from the beginning of the opening of the instant hospital, the lower court found the Defendant not guilty by misunderstanding the facts, and subsequently acquitted the Defendant. Even if the degree of the Defendant’s participation does not reach a co-principal, an aiding and abetting crime is established as long as it is easy to commit the crime by

(2) Unreasonable sentencing (defendant 2)

The above-mentioned sentence imposed by the court below against Defendant 2 is unreasonable compared to the degree of responsibility.

2. Determination

A. Judgment on the mistake of facts or misapprehension of legal principles by Defendant 1

(1) Relevant legal principles

The purpose of the Medical Service Act is to strictly limit the qualification for establishing a medical institution to medical personnel with medical expertise, corporations with public character, institutions, etc., and to prevent any other person from establishing a medical institution is to protect and improve national health by ensuring the appropriateness of medical care. Therefore, the act of an ordinary citizen who is not qualified for medical personnel by investing necessary funds in the facility and reporting the establishment of a medical institution in the name of the qualified medical personnel is deemed to be a lawful establishment of a medical institution only formally, and in substance, it is reasonable to deem that non-medical personnel established under the Medical Service Act violates the Medical Service Act. Moreover, the foregoing legal doctrine likewise applies to cases where a medical institution is reported in the name of a consumer cooperative established under the Consumer Cooperatives Act, which explicitly permits medical business (see, e.g., Supreme Court Decision 2012Do14360, Aug. 20, 2014).

Meanwhile, the establishment of a medical institution prohibited by Article 33(2) of the Medical Service Act means that a non-medical person handles the facilities and human resources of the medical institution, reports on the establishment of such medical institution, the implementation of medical business, the raising of necessary funds, the reversion of the operational performance, etc. from the leading point of view (see Supreme Court Decision 2009Do2629, Oct. 27, 201).

(2) The entity establishing and operating the instant hospital

Comprehensively taking account of the evidence duly adopted and examined by the court below and the trial court, the following facts and circumstances may be acknowledged (the same applies to the cases where the parts of the testimony made by each investigation agency of Nonparty 3 and the testimony made by each investigation agency of the court below are excluded from admissibility as they fall under the hearsay statement, and the same does not apply to each of the statements made by Nonindicted 4 and Defendant 2 as well as evidence 1, 2, and 3 (including various numbers) of the witness of the court below.)

Defendant 1 opened, on behalf of Defendant 1, a passbook in the first instance trial for the establishment of ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○

(C) Non-Indicted 2 and Non-Indicted 5 of the first instance trial co-defendant 5 mainly recruited the members of the ○○○ Life Cooperative, and Non-Indicted 2 and Non-Indicted 5 received expenses from Defendant 1. After the establishment of the ○○ Life Cooperative, the Co-Defendant 5 of the first instance trial was in charge of managing the members of the association and was paid by Defendant 1.

The Co-Defendant 2 of the first instance court, who is the chief director of the ○○○○ Livelihood Consultative Council, was only the beginning of 30s at the time of the establishment of the ○○○○○ Living Cooperative, and from around 2015, Gwangju was not involved in the operation of the instant hospital. The Co-Defendant 2 of the first instance court stated in the investigative agency that “the conditions of the building lease are not well known, and Nonindicted 5 was gathered in the process of opening the instant hospital,” and stated that “the instant hospital was opened after the opening of the instant hospital or that “the Defendant 1 requested to deduct the chief director.”

In substance, Defendant 1 was the owner of the building used by the instant hospital, and Defendant 1 prepared each lease contract in Gwangju, with respect to the remainder of the building except for △△△△△△, which was named Defendant 1. From October 1, 2014 to December 1, 2014, Defendant 1 only received KRW 30 million (30 million) investment in the instant hospital’s ○○○ Life Consultation from the instant hospital’s opening of the hospital, and only received the lease deposit for the remainder from the ○○○ Community Cooperative.

Defendant 1 entered into a contract with the construction business operator for the hospital interior construction, and was fully or partially liable for construction costs. Defendant 1 paid all or some of the expenses for the doctor and staff of the hospital of this case. Defendant 1 paid the operating expenses of the hospital of this case at any time, while Defendant 1 took out funds from time to time under the name of the loan repayment or building rent out of the revenues of the hospital of this case. In this regard, there was no decision-making procedure or accounting process related to the loan in the ○○ Cooperatives.

㉳ 피고인 1은 이 사건 병원의 환자 수, 일일 수입, 지출 내역 등을 매일 보고받았는데, 이 사건 병원의 운영수익이 나지 않자 2015. 3.경 공동피고인 3에게 이 사건 병원을 인수할 사람을 물색하도록 지시하기도 하였고, 2015. 8.경에는 ○○○생협의 해산절차를 밟도록 법무사에 의뢰하면서 그 비용을 부담하기도 하였다.

In light of the circumstances leading up to the establishment of the ○○○ Life Consultation, the process leading up to the establishment of the instant hospital’s facility funds and operating funds, and the ownership of operating profits, etc., it is reasonable to view that Defendant 1 is not an ○○ Life Cooperation, but an individual who establishes and operates the instant hospital as Defendant 1.

(3) Appropriateness of the judgment of the court below

Therefore, the court below is just in finding Defendant 1 guilty of all charges of violation of the Medical Service Act, National Health Insurance Act, and Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) by considering that Defendant 1 established and operated the instant hospital, and there is no error of misconception of facts

B. Judgment on Defendant 2’s assertion of mistake of fact

According to the evidence duly admitted and examined by the court below, it is recognized that Defendant 2 took overall charge of the administrative affairs of the instant hospital in the position of the head of the headquarters or the head of the administrative office. However, it is difficult to view that Defendant 2 conspiredd to establish and operate the instant hospital and to receive the benefit of the instant hospital, or did not enter into an agreement with Defendant 2 to share part of the funds necessary for the establishment of the instant hospital, or to share the profits of the instant hospital with Co-Defendant 1. ③ Defendant 2 appears to have carried out the administrative affairs of the instant hospital in accordance with Co-Defendant 1’s instruction and delegation, and was paid by Co-Defendant 1. Comprehensively taking account of the following facts, it is difficult to view that Defendant 2 and Co-Defendant 1 conspired to commit the crime of opening and operating the instant hospital and receiving the benefit of the medical care benefit of the instant hospital, or there is no other evidence to acknowledge it differently.

Thus, even though it can be seen that Co-Defendant 2 participated in the crime of Co-Defendant 1, he cannot be punished as co-defendant 1's co-principal. However, the court below found Defendant 2 guilty of all the charges against Defendant 2, which affected the conclusion of the judgment by misunderstanding the facts charged. Thus, Defendant 2's assertion pointing this out is justified (However, in a case where the facts charged are found to be less minor than the facts charged within the scope recognized as identical to the facts charged, if the court does not give substantial disadvantage to Defendant's defense, it can be recognized as aiding and abetting the facts charged as co-principal ex officio without changing the indictment (see Supreme Court Decision 2002Do995, Jun. 24, 2004). Defendant 2's defense counsel stated in the statement of grounds for appeal that Defendant 2's criminal liability is merely a crime of aiding and abetting a criminal defendant 2, and even during the actual trial, Defendant 2's defense counsel did not change the indictment ex officio so long as it stated the same purport.

C. Judgment on the prosecutor's assertion of mistake

(1) Facts charged against Defendant 3 and the judgment of the court below

The summary of this part of the facts charged is as follows: “Defendant 3, while taking charge of the business of the hospital as the head of the ○○○ Livelihood Consultative Office, in collusion with Co-Defendant 1, etc., and operated the instant hospital from October 1, 2014 to November 20, 2015, and received insurance benefits by receiving KRW 793,350,520 in total from the victim of the National Health Insurance Corporation from the victim from December 2, 2014 to January 20, and receiving insurance benefits by unlawful means,” and in light of the fact that Defendant 3 received a certain amount of benefits every month, it appears that Defendant 3 was not well aware of the process of establishing the ○○○ Youth Consultative Office and the process of performing the hospital work, it appears that Co-Defendant 2 would have received instructions or approval from Co-Defendant 2, and there is insufficient evidence to acknowledge that Defendant 3 participated in the crime of functional control as a co-principal with the intention of co-processing.

(2) Judgment of the court below

Examining the evidence of this case closely in light of the records, we affirm the judgment of the court below which acquitted Defendant 3 on the ground that it is difficult to view that Defendant 3 participated in the establishment and operation of the hospital of this case and the crime of receiving medical care benefit costs, and there is no error of law by mistake of facts as alleged by the prosecutor.

However, the prosecutor added the ancillary charges against Defendant 3 in violation of the Medical Service Act, the National Health Insurance Act, and the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) to the ancillary charges, and the evidence duly adopted and examined in the original judgment and the trial as follows. Thus, the prosecutor's assertion of mistake of facts is justified to the extent of this scope.

D. Determination on Defendant 1’s assertion of unreasonable sentencing

While considering the fact that Defendant 1 led Defendant 1 to commit a crime in violation of the Medical Service Act, the National Health Insurance Corporation did not cause damage to the victim and did not recover from damage, the court below mitigated the statutory punishment by taking into account the favorable circumstances, such as the fact that there was no record of crime, and that the medical treatment at the hospital seems to have been performed normally, and determined the punishment.

The lower court’s determination on the sentencing of Defendant 1 is reasonable within the scope of reasonable discretion by taking into account all the conditions of sentencing specified in the instant pleadings, including Defendant 1’s age, character and conduct, environment, motive and background of the crime, means and consequence of the crime, and the circumstances after the crime was committed. Since there is no obvious change in the sentencing conditions that could correct the lower court’s judgment in the trial, it cannot be deemed that the sentence imposed by the lower court is too unreasonable. Defendant 1’s assertion on the unfair sentencing is rejected.

3. Conclusion

Therefore, since the appeal by Defendant 2 and the prosecutor against Defendant 3 are partly reasonable, the part against Defendant 2 and Defendant 3 among the judgment below is reversed pursuant to Article 364(6) of the Criminal Procedure Act without examining the judgment on the allegation of unreasonable sentencing as to Defendant 2, and the part against Defendant 2 and Defendant 3 in the judgment below is again ruled through pleading as follows. Since Defendant 1’s appeal is without merit, it is dismissed pursuant to Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition

Defendant 1 purchased a building of the ○○○○○-si, Seoul, but the rent was not well-known, and the cost of establishing the ○○○-si, the hospital’s construction cost, and the payment for executives and employees of the hospital is to deliver the building to the place of operation of the hospital. Defendant 2 of the first instance court participated in the establishment of the association under the name of the president of the ○○○-si, and Defendant 5 of the first instance court decided to open the ○○-si, a director by means of soliciting union members and managing cooperative contributions. Defendant 5 of the first instance court established the ○○-si, around July 3, 2014; around October 1, 2014; Defendant 6, Nonindicted 7, and Nonindicted 8, etc.; Defendant 1 provided the ○○-si, which had the 200-si, with nurses, medical technicians, etc.; and Defendant 2 provided the 201-day Medical Service Act with the said medical institution as if the 201-day medical institution were lawfully established.

The Defendants, despite being aware that the instant hospital is a medical institution established and operated by non-medical persons, she helps the head of the headquarters or the head of the administrative office, and Defendant 3 serve as the head of the administrative office, assist the instant hospital in preparing for the opening of the hospital, and handle the duties of employing and managing medical professionals and staff, and executing funds, thereby aiding and abetting Defendant 1, etc. to commit the crime.

The summary of the evidence of the above crime is the same as the statement in the summary of the court below's evidence, and thus, it is cited as it is in accordance with Article 369 of the Criminal Procedure Act (the defendant's defense counsel did not know that the defendant was established and operated by non-medical personnel. However, according to evidence, the defendants overall engaged in the business of paying wages, operating funds, managing employees' situation as the chief of the headquarters, the chief of the administrative office, the head of the administrative office, or the head of the administrative office, and the fact that the defendant 3 reported the number of patients, daily revenues, and expenditure details to co-defendant 1 every day. Thus, the defendants are deemed to have been sufficiently aware that the opening and operating authority of the hospital of this case was co-defendant 1, not a

1. Article applicable to criminal facts;

[Defendants] Articles 87(1)2 and 33(2) of the former Medical Service Act (amended by Act No. 14438, Dec. 20, 2016); Article 32(1) of the Criminal Act (amended by Act No. 14438, Dec. 2016); Article 115(2)5 of the former National Health Insurance Act (amended by Act No. 14084, Mar. 22, 2016); Article 32(1)2 of the Criminal Act; Article 32(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes; Article 347(1) of the Criminal Act; Article 32(1) of the Criminal Act (amended by Act No. 1408, Mar. 22, 2016; aiding and abetting the establishment of illegal medical care benefit costs)

1. Commercial competition;

[Defendants] Articles 40 and 50 of the Criminal Act / [the punishment prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)]

1. Selection of punishment;

[Defendants] Selection of Imprisonment for the crime of aiding and abetting the Medical Service Act

1. Statutory mitigation;

[Defendants] Articles 32(2) and 55(1)3(3) of the Criminal Act

1. Aggravation for concurrent crimes;

[Defendants] The former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [the punishment shall be aggravated within the scope of adding up the long-term punishment of two crimes prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) with heavy penalty]

1. Discretionary mitigation;

[Defendants] Articles 53 and 55 (1) 3 of the Criminal Code

1. Suspension of execution;

[Defendants] Article 62 (1) of the Criminal Code

1. Social service order;

[Defendant 3] Article 62-2 (1) of the Criminal Act, Article 59 of the Act on Probation, etc.

A suspended sentence of imprisonment shall be imposed in consideration of the fact that the Defendants participated in the crime by aiding and abetting the criminal, but with regard to Defendant 3 who has the record of the same kind of crime, community service for a certain period of time shall be added

The summary of this part of the facts charged is that "the defendant, while taking charge of the business of the hospital with the head of the headquarters, the head of the administrative office, or the head of the administrative office, in collusion with co-defendant 1, etc., operates the hospital of this case from October 1, 2014 to November 20, 2015, and received insurance benefits by receiving the total of KRW 793,350,520 from the victim of the National Health Insurance Corporation from December 2, 2014 to January 20, and received insurance benefits in an unlawful manner at the same time by receiving the cost of health care benefit from the victim from the victim from the National Health Insurance Corporation." Thus, the defendant should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act because he/she falls under the case where there is no proof of criminal facts as seen in subparagraph 2-B and (c). However, it is not guilty in the disposition that found otherwise guilty of the crime of aiding and abetting, the crime of violating the National Health Insurance Act, and the Act on Specific Punishment.

[Attachment]

Judges Yoon Jin- (Presiding Judge) Lee Jin-young