[1] Whether a medical person is liable as a co-principal in a case where a person, other than a medical person or a medical corporation, conspired and processed to establish a medical institution (affirmative)

[2] The meaning of "business" protected by the crime of interference with business

[3] Where a person, other than a medical person or a medical corporation, establishes and operates a medical institution, whether the operation of the medical institution constitutes "business" protected by the crime of interference with business (negative)

[1] If a medical person conspired to establish a medical institution by a person other than a medical person or a medical corporation and processes it, it constitutes a co-principal for a violation of Article 66 subparag. 3 and Article 30(2) of the Medical Service Act.

[2] The term "business" subject to protection under the Criminal Act for the crime of interference with business should be an occupation or a continuous business, which is worth protecting under the Criminal Act from an unlawful infringement of others' business. Therefore, if a certain business or activity itself has anti-sociality to the extent that it is considerably unreasonable in social life due to its serious degree of illegality, it cannot be deemed that it constitutes "business subject to protection under the crime of interference with business."

[3] The act of opening and operating a medical institution by a person, other than a medical person or a medical corporation, is so anti-social that the degree of illegality is so severe that it can not be easily accepted in social life, and thus does not constitute "business subject to protection of interference with business".

[1] Article 30 of the Criminal Act; Articles 30(2) and 66 subparag. 3 of the Medical Service Act / [2] Article 314 of the Criminal Act / [3] Article 314 of the Criminal Act; Articles 30(2) and 66 subparag. 3 of the Medical Service Act

[1] Supreme Court Decision 85Do448 delivered on February 11, 1986 (Gong1986, 479) / [2] Supreme Court Decision 67Do1086 delivered on October 31, 1967 (No. 15-3, 34) Supreme Court Decision 77Do2502 delivered on October 11, 197 (Gong1977, 10365), Supreme Court Decision 87Do3674 delivered on March 14, 1989 (Gong1989, 637)

Defendant

Prosecutor and Defendant

Attorney Kim Jong-hun

Seoul District Court Decision 2000No9360 delivered on April 10, 2001

Each appeal shall be dismissed.

1. Judgment on the Defendant’s ground of appeal

The judgment of the court below that found the defendant guilty of the charge of violating the Medical Service Act is justified in comparison with the evidence in the records, and there is no violation of the rules of evidence.

In addition, if a medical person conspired to establish a medical institution by a non-medical person or a non-medical corporation and processes it, it constitutes a co-principal of a violation of Article 66 subparag. 3 and Article 30(2) of the Medical Service Act (see Supreme Court Decision 85Do448, Feb. 11, 1986).

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles under Article 66 subparagraph 3 and Article 30 (2) of the Medical Service Act.

The precedents of the defendant's internal decision are different, and it is not appropriate to invoke the case in this case.

Defendant’s argument in the grounds of appeal is rejected.

2. Judgment on the Prosecutor’s ground of appeal

The term "business" subject to protection under the Criminal Act for the crime of interference with business should be an occupation or a business which continues to be engaged in, and which is worth protecting under the Criminal Act from the illegal infringement of others. Therefore, if a certain business or activity itself has anti-sociality to the extent that it is considerably unacceptable due to the degree of illegality, it cannot be deemed that it constitutes "business subject to protection under the crime of interference with business."

However, Article 30(2) of the Medical Service Act prohibits the establishment of a medical institution by any person, other than a medical person or a medical corporation, in order to prevent any serious hazard to national health and hygiene, which may result in the establishment and operation of a medical institution by any person other than a medical person or a medical corporation. Article 66(3) of the same Act provides that any person who violates this shall be punished by imprisonment for not more than five years or by a fine not exceeding 20 million won. Thus, the establishment of a medical institution by any person other than a medical person or a medical corporation is prohibited under the Medical Service Act and constitutes a criminal act that is subject to criminal punishment as prohibited under the Medical Service Act, and the establishment and operation of a medical institution by

Therefore, the act of opening and operating a medical institution by a person, other than a medical person or a medical corporation, has the degree of illegality so that it can not be easily accepted in social life, so it does not constitute "business subject to protection of interference with business".

In the same purport, the court below is just in holding that the non-indicted's duty of operating the non-indicted's member does not constitute a business subject to protection of the crime of interference with business, and there is no violation of law by misunderstanding the legal principles on interference with business.

The Prosecutor’s argument in the grounds of appeal is rejected.

3. Conclusion

Therefore, each appeal by the prosecutor and the defendant is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Shin-chul (Presiding Justice)