[1] Whether the act of medical advertisement constitutes a patient's "induction" prohibited under Article 27 (3) of the former Medical Service Act (negative in principle), and whether the act of medical advertisement constitutes a patient's "induction or good offices" or a "induction" or "induction" when it was performed by a medical personnel's employee or a third

[2] In a case where Defendant A, an Ansan doctor, conspired with Defendant B’s representative director, sent an advertisement content of this event, such as internal surgery expenses, to a specific Internet camera members by e-mail, and was prosecuted for violation of the former Medical Service Act, the case holding that the lower court erred by misapprehending the legal doctrine, even though the Defendants’ medical advertising act does not constitute “inducing” of the patients, and even if the advertising act was conducted through Defendant B, etc., it cannot be deemed that the act constitutes “inducing and mediating” or “inducing” of the patients

[1] Articles 27(3), 56, and 88 of the former Medical Service Act (amended by Act No. 9386 of Jan. 30, 2009) / [2] Article 30 of the Criminal Act; Articles 27(3), 88, and 91(1) (see current Article 91) of the former Medical Service Act (amended by Act No. 9386 of Jan. 30, 2009)

[1] Supreme Court Decision 2010Do1763 Decided September 13, 2012 (Gong2012Ha, 1696)

Defendant 1 and two others

Defendants

Law Firm Barun, Attorneys Jeong Jin-jin et al.

Seoul Central District Court Decision 2009No3855 Decided May 13, 2010

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. Considering the legislative intent of Article 27(3) of the former Medical Service Act (amended by Act No. 9386, Jan. 30, 2009; hereinafter the same), related legal interests and the content, history, and purport of Article 56 of the former Medical Service Act, etc. of the medical advertisement-related provision, it is reasonable to deem that the medical advertisement does not constitute “induction of a patient” as provided by Article 27(3) of the former Medical Service Act, unless there are special circumstances, such as where it can be evaluated as equivalent to the type of an act prohibited under the main sentence of Article 27(3) of the former Medical Service Act, or where it substantially undermines the order of the medical market (see Supreme Court Decision 2010Do1763, Sep. 13, 2012).

2. The summary of the facts charged of this case is as follows: Defendant 2 and Defendant 1, the representative director of the ○○○○○○○○ Division, conspired to do so on December 1, 2007 to February 28, 2008, to have approximately 30,000 members of the Internet evaded site through 3-4 operators of the following (DAUM) e-mail surgery from 30,000 members of the Kafe-mail 30,000 members affiliated with the Kafe-mail, and to have 30,000 members of 50,000 won support from 50,000 won support from 30,000 won support from 10,000 won support from 30,000 won support from 10,000 won support from 20,000 won support from 30,000 won support from 30,000 won support from 30,000 won support from e-mail surgery.

3. We examine the reasoning and records of the lower judgment in light of the aforementioned legal doctrine.

Defendant 2’s act of sending e-mail through Defendant 3 Company constitutes a medical advertisement against many and unspecified persons. However, with respect to the contents of “cash 500,000 won,” among the above e-mail advertisements, the act of offering money and valuables, etc. should not be construed as an act of offering the above e-mail in light of the following: (a) around that time, it is generally known that the e-mail operating expense is higher than the above amount of money; (b) and (c) the above contents are generally interpreted as granting a discount on operating expenses; and (d) in fact, those who reported the above advertisement in this case and participated in this event understood the above contents as the concept of discount on operating expenses.

In addition, in the above e-mail advertisement, the term “scopic correction” includes not only visual correction, but also the acts such as diagnosis, examination, treatment, etc. before and after the operation (see Supreme Court Decision 2008Du19345, Oct. 11, 2012). However, it is reasonable to view the content of the above e-mail as an act of exempting or discounting personal expenses under the National Health Insurance Act or the Medical Care Assistance Act when it is not for the purpose of improving the required function of body as a recopic method to replace an eye, contact lenses, etc. as an object of non-benefit under Article 9(1) [Attachment Table 2] 2(f) of the Regulations on Medical Care Benefit Standard under the delegation by the National Health Insurance Act and the Medical Care Assistance Act (see Supreme Court Decision 2008Du19345, Oct. 11, 2012).

Ultimately, the medical advertisement through each of the above e-mail can not be evaluated as equivalent to the individual prohibited type of act under the main sentence of Article 27(3) of the former Medical Service Act, or as being considerably detrimental to the order of the medical market, it shall not be deemed that it does not constitute “induction” of a patient under Article 27(3) of the former Medical Service Act. This is difficult even if the medical advertisement was conducted through Defendant 3, etc. upon Defendant 2’s request.

Nevertheless, solely on the grounds stated in its holding, the court below erred by misapprehending the legal principles on soliciting patients prohibited under the former Medical Service Act, etc., thereby adversely affecting the conclusion of the judgment, by misunderstanding the interpretation of penal provisions.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)