Defendant 1 and one other

Both parties

St. B. B. L. L.S.

Attorney higher-ranking

Seoul Central District Court Decision 2010Gohap3125 Decided October 4, 2010

All appeals by the Defendants and the Prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendants

As to the violation of the Pharmaceutical Affairs Act, the person who acquired the medicine in the judgment of the court below is an employee who was issued a prescription in his own name, and the Defendants were merely an employee who acquired the medicine in his own name, and the Defendants did not constitute a sale under Article 44(1) of the Pharmaceutical Affairs Act, since they were kept for the free distribution of the medicine in the judgment of the court below. In addition, the Defendants’ acquisition of medicine for the employees of the company in time of emergency constitutes a justifiable act that does not violate the social rules. Nevertheless, the court below found the Defendants guilty of this part of the charges. The court below erred by misapprehending the facts or misapprehending the legal principles, thereby affecting the conclusion of the judgment, and even if the court below found the Defendant guilty of domestic affairs, the punishment (the fine of KRW 3,00,000, KRW 2,000 and KRW 2,00,00

(b) Prosecutors;

As to the violation of the Medical Service Act, according to the evidence submitted by the prosecutor, the court below acquitted the Defendants on this part of the facts charged, although the Defendants conspired with Nonindicted 3, 5, 6, 7, and 8 (hereinafter “Proceedings Nonindicted 3, etc.”) and issued a prescription to 494 employees of Nonindicted Co. 1 without directly examining them as indicated in the facts charged, and could sufficiently recognize the violation of the Medical Service Act by issuing a prescription to 494 employees of Nonindicted Co. 1.

2. Judgment on the violation of the Pharmaceutical Affairs Act

A. Judgment on misconception of facts or misapprehension of legal principles

In addition, the court below's rejection of the defendants' assertion on the grounds as stated in its holding, and even if the defendants acquired the drugs with the intention to deliver them to employees free of charge, it constitutes a case where the drugs are acquired for the purpose of selling them to many people. The court below's decision that the above act does not constitute a justifiable act is justified. The court below's decision that the above act does not constitute a justifiable act is justified. The court below's decision did not err by misapprehending the facts or by misapprehending the legal principles as pointed out by the defendants, which affected the conclusion of the judgment. Thus, the above argument by

B. Determination on the assertion of unfair sentencing

In light of the background leading to the instant crime, and the process and scale of the instant crime, the nature and circumstances of the crime are not somewhat weak, and considering the Defendants’ age, character, conduct and environment, motive, means and consequence of the instant crime, etc., the lower court’s punishment is too unreasonable, and thus, the Defendants’ above assertion is not reasonable.

3. Judgment on the violation of the Medical Service Act

A. Judgment on the primary facts charged in violation of the Medical Service Act

1) Summary of the primary facts charged

The Defendants, around June 12, 2007, at Nonindicted 9 members of the Mapo-gu Seoul Metropolitan Council (hereinafter omitted), sent a list of 100 employees of Nonindicted Company 1 to Nonindicted 8 via Nonindicted 4, who are employees in charge of the business of Nonindicted Company 1, via Nonindicted 4, who are employees in charge of Nonindicted Company 1. Nonindicted 8, without directly diagnosing the employees indicated on the list, drawn up a prescription of 100 to prescribe saflus and sabscquerelgs to the employees, and issued it to Nonindicted 4; Nonindicted 4; Defendant 2; Defendant 1 delivered to Nonindicted 1; Defendant 3; and Defendant 1 issued a prescription without directly diagnosing Nonindicted 1’s employees 494 by the same method; and around that time, in collusion with Nonindicted 1 Company 494.

2) The judgment of the court below

In relation to the interpretation of Article 17(1) main text of the Medical Service Act (hereinafter “instant provision”), the lower court construed that the provision of this case only where the medical certificate, etc. is delivered to the patient without a direct medical doctor, and the medical certificate, etc. is subject to the regulation of the instant provision, and that only when the medical certificate, etc. is given to the patient, it constitutes the violation of the instant provision. However, if the delivery of the medical certificate, etc. is given to the patient on behalf of the nominal owner (issuance by proxy) and the delivered person, if the delivery of the medical certificate is possible to be deemed the private person or the agent of the delivered person on behalf of the nominal owner, and if there is a contact between the nominal owner and the delivered person, it can be deemed that the delivery of the medical prescription is given to the patient, and if there is no contact between the nominal owner and the delivered person, the prescription may only be given to the nominal owner.

On the premise of the foregoing logic, first of all, in relation to the prescription issued in the name of Nonindicted 4 and 11 (hereinafter “Nonindicted 4, etc.”) with which the actual prescription was issued in this case, the act of not directly diagnosing the doctor and the act of giving and receiving the patient’s prescription is related to the opposite criminal intent, and the penal provisions on the accomplice cannot be applied to the opposite criminal intent. As such, Nonindicted 4, etc., who received the actual prescription, cannot be the joint principal offender of the act of issuing the prescription given by Nonindicted 3, etc., and thus, the Defendants processed to Nonindicted 4, etc., without the penal provision,

Next, in relation to the medical prescription under the name of employees other than Nonindicted 4, etc., in this case, the patient was the nominal owner of the medical prescription as indicated in the judgment and expected to have been administered, and the prescription was not issued to the employees as indicated in the judgment, and thus, the act of Nonindicted 3, etc. by the doctor was not acceptable. In this case, even if the prescription was issued to the employees in the judgment, such interpretation is deemed to have been actually the same as that of the employees in the judgment of Nonindicted 4, etc., as it is evaluated to have been received at all by the employees who were unaware of the fact that the prescription was given to Nonindicted 4, etc., and as such, between Nonindicted 4, etc. and Nonindicted 3, etc. 4, etc. were deemed to have been in the position or position of the employees in the judgment, the Defendants were eventually processed by the employees in the judgment that did not have any penal provision.

For the foregoing reasons, the lower court found the Defendants not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, on the ground that this part of the facts charged against the Defendants was not proven without any reasonable doubt.

3) Determination of the immediate deliberation

A) The instant provision provides that a patient (including a prescription prepared by a doctor or dentist in the form of an electronic document with a digital signature under the Digital Signature Act (hereinafter referred to as “electronic prescription”); hereinafter the same shall apply) who is not a dentist, dentist, or oriental medical doctor, or doctor or dentist, shall not prepare a diagnosis, autopsy, or prescription (limited to an electronic prescription) and deliver or dispatch (limited to an examination document) to a patient (referring to his/her spouse, lineal ascendant or descendant, or lineal ascendant of his/her spouse where a patient dies) or a district public prosecutor of the district public prosecutor’s office (limited to an electronic prescription) who conducts a autopsy pursuant to Article 22(1) of the Criminal Procedure Act: Provided, That where a patient who has been under medical treatment dies within 48 hours from the final medical examination and treatment, a diagnosis or certificate may be issued even if a patient or oriental medical doctor who has conducted a diagnosis or examination dies, and that a doctor, dentist, or oriental medical doctor who directly conducted a diagnosis, examination, or prescription may issue the diagnosis or prescription to another medical institution for the same reason.

In full view of the legislative purport of the above provision and the forms of the penal provision of this case, when interpreting the provision of this case and the penal provision of this case, a doctor shall be punished by imprisonment with labor for not more than one year or by a fine not exceeding five million won pursuant to the penal provision, if a doctor delivers a diagnosis certificate, etc. under the name of another person other than his/her own name to a person who takes the diagnosis (issuance of another person’s name), if a doctor delivers a diagnosis certificate, etc. under the name of another person who takes the diagnosis (issuance of another person’s name), and if a doctor delivers a diagnosis certificate, etc. under the name of another person who does not take a diagnosis to a third person (issuance of a certificate by proxy), all of the provisions of this case are violated, and as such, it shall be deemed to have resulted in the completion of the diagnosis by issuing the certificate.

B) As stated in the facts charged as to the violation of the Medical Service Act, a doctor Nonindicted 3’s issuance of a prescription in the entire name of the employees of Nonindicted Co. 1 to Nonindicted Co. 4, etc. constitutes a case where a doctor delivers a medical certificate in the name of another person who did not undergo a medical examination to a third party. The doctor’s violation of the Medical Service Act by Nonindicted Co. 3, etc. is deemed to have been completed by issuing a prescription to Nonindicted

In addition, the provision of this case constitutes an act of delivery, which constitutes an act of vicarious cooperation, and the provision of the general provisions of the Criminal Act concerning accomplices cannot be applied to an act of vicarious crime requiring the existence of two or more acts of mutual cooperation (see, e.g., Supreme Court Decision 2007Do6712, Oct. 25, 2007). In this case, there is no penal provision regarding the act of giving and receiving prescriptions by Nonindicted 4, etc., and Nonindicted 4, etc., who is a provoking criminal, cannot be a joint principal offender of the act of issuing prescriptions by Nonindicted 3, etc., and eventually, the Defendants who were processed to such Nonindicted 4, etc., are not punished, and the evidence submitted by the Prosecutor alone is insufficient to acknowledge this part of the primary facts charged, and there is no evidence to acknowledge this part of the primary facts charged.

Therefore, this part of the facts charged against the Defendants constitutes a case where there is no proof of a crime, and thus, the judgment of the court below should be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act. The court below's decision that the Defendants not guilty of the facts charged in this part of the primary facts charged is just and acceptable despite some inappropriate statements, and the judgment of the court below did not err in the misapprehension of facts or in the misapprehension of legal principles as pointed out by the prosecutor,

B. Judgment on the ancillary facts charged in violation of the Medical Service Act

1) For the first time in the trial, the prosecutor applied for changes in the indictment to add "a teacher in violation of the Medical Service Act" to the applicable provisions of the Act, "Article 31 (1) of the Criminal Act" to the facts charged in violation of the Medical Service Act, and this court permitted this, and therefore, we examine the ancillary facts.

2) Summary of the conjunctive charge

From June 2006, the Defendants instructed the head office ○○○○ located in Switzerland to store drugs that can be paid to all employees against infectious diseases to the non-indicted 1 corporation, a Korean branch office. The Defendants organized a crisis response team and resolved to store typullue 75 xurglass (incinium), a prescription, which was issued in the name of the former employees, and to pay the said drugs to all employees and their family members according to the needs of the latter after mass purchase. While seeking the scheme, the Defendants adopted a prescription, which was issued in the name of the former employees, even if each employee did not directly undergo a medical examination, and then decided to pay the said drugs to all employees and their family members according to the need of the latter.

그리하여 피고인들은 2007. 6.경 공소외 1 주식회사 사무실에서 피고인 1은 피고인 2에게 위와 같은 방법으로 처방전을 확보하도록 지시하고, 피고인 2는 그 부하직원인 공소외 4 등에게 같은 내용으로 지시하여 공소외 4 등을 통하여 그 무렵 서울 관악구 대학동 (이하 2 생략) 소재 공소외 12 의원에서 의사 공소외 3에게, 서울 관악구 신림동 (이하 3 생략) 소재 공소외 5내과의원에서 의사 공소외 5에게, 서울 용산구 산천동 6가 소재 공소외 13 의원에서 의사 공소외 6에게, 서울 용산구 용산동 2가 (이하 4 생략) 소재 공소외 14 내과에서 의사 공소외 7에게, 위 공소외 9 의원에서 의사 공소외 8에게, ‘ 공소외 1 주식회사의 직원 명단을 드릴 테니 각 직원 명의로 진료 없이 처방전을 발급하여 달라’라고 부탁하고, 이에 그 부탁을 받은 의사 공소외 3 등으로 하여금 환자를 진찰하지 않고 위 회사 직원들 명의로 처방전을 발급해 줄 것을 마음먹게 하고, 위 공소외 8로 하여금 2007. 6. 12.경 위 공소외 9 의원에서 위 회사 직원 100명의 명단에 기재된 자들을 직접 진찰하지 않고 동인들에 대하여 타미플루 및 파킨트렐캅셀을 처방하는 내용의 처방전 100장을 작성하여 위 공소외 4에게 교부하게 하고, 공소외 4로부터 피고인들에게 순차적으로 교부되게 한 것을 비롯하여 의사 공소외 3 등으로 하여금 같은 방법으로 그 무렵 위 회사 직원 494명에 대하여 직접 진찰하지 않고 처방전을 발급하여 공소외 4 등에게 교부하게 하고, 그들에게서 피고인들에게 교부되게 함으로써 의료법위반 행위를 교사하였다.

3) Determination

However, according to the evidence duly adopted and examined by the court below, although it is recognized that the medical doctor non-indicted 3 et al. issued a prescription without directly examining 494 employees, the Defendants cannot be punished for the same reason as the judgment in the facts charged in the above main facts charged, since the Defendants' act of aiding and abetting the doctor non-indicted 3 et al. to violate the Medical Service Act through Non-indicted 4 et al., and the Defendants' act of aiding and abetting the doctor non-indicted 4 et al. for the same reason as the judgment in the above main facts charged cannot be the act of aiding and abetting the doctor non-indicted 3 et al., and the evidence submitted by the prosecutor alone is insufficient to acknowledge the above ancillary

Therefore, since the above conjunctive facts charged constitute a case where there is no proof of a crime, it should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, even if the court below acquitted the defendant as to the primary facts of violation of the Medical Service Act, and the prosecutor appealed against this, and added the ancillary facts of the crime of this case to the principal offender within the scope of the identity of the facts charged, it is identical with the conclusion of the court below, and thus, the order does not sentence not to prosecute the conjunctive facts of this case (Supreme Court Decision 84Do3068 delivered on February 8, 19

4. Conclusion

Therefore, the appeal by the defendants and the prosecutor is without merit, and all of them are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Lee Jae-won (Presiding Judge) Suspension of Kim Jong-ju