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The defendant's appeal is dismissed.
Reasons
1. Summary of grounds for appeal;
A. Although the Defendant, who established the Korea Institute of misunderstanding of facts as to the fraud, was not a medical personnel, and the establishment of the above Institute is not lawful, the claim for medical care benefit costs of this case is about the actual medical practice of the Korean medicine doctor employed at the Korea Institute, and thus, it cannot be deemed that the National Health Insurance
B. The sentence imposed by the lower court (ten months of imprisonment and two years of suspended execution, and one hundred and sixty hours of community service order) is too unreasonable.
2. Determination
A. The deception as a requirement for the assertion of mistake of facts refers to all affirmative or passive acts that have to comply with each other in property transactional relations, and therefore, it is sufficient to say that it does not necessarily require false indication as to the important part of a juristic act, and that it is the basis for judgment for an actor to make a disposition of property which the other party wishes by omitting the other party into mistake. Therefore, in cases where it is recognized that the other party to the transaction would not have been engaged in the transaction if it was notified of certain circumstances, a person who receives the property is obligated to notify the other party of such circumstances in advance of such circumstances in accordance with the principle of good faith.
Nevertheless, it constitutes a crime of fraud by deceiving the other party by implied disregarding the fact that such notice has not been given.
(See Supreme Court Decision 2005Do5774 delivered on October 28, 2005). According to the evidence duly adopted and examined by the court below, even though it is evident that the defendant is not eligible to establish a medical institution under the Medical Service Act, the defendant may employ a doctor in violation of this provision, and allow him/her to perform medical practice. Meanwhile, according to the relevant provisions of the National Health Insurance Act, the defendant is residing in Korea.