[1] Where the Enforcement Decree of the Act provides for matters on criminal punishment and expands the subject of punishment beyond the scope of explicit delegation of the Act, whether it is invalid beyond the limit of delegated legislation (affirmative)

[2] Whether Article 18(1) of the Enforcement Decree of the Medical Service Act is invalid beyond the limit of delegated legislation (affirmative)

[1] [Majority Opinion] The enforcement decree of a law cannot modify or supplement the contents of rights and obligations of an individual provided by a law without delegation of the law as its mother juristic person or provide new contents that are not provided by a law. In particular, the enforcement decree of a law provides for matters on criminal punishment and expands the scope of punishment beyond the explicit scope of delegation of the law is contrary to the principle of no punishment without law and thus, it is null and void as it goes beyond

[Concurring Opinion by Justice Lee Sang-hoon and Justice Kim Yong-deok] The Enforcement Decree of the Act is a principle that the content of rights and obligations of an individual may not be modified or supplemented, or a new content that does not provide for the mother law may not be determined unless delegated by the mother law. In particular, in order to supplement the content of the Act on Criminal Punishment and to form the basis for criminal punishment by combining the Act with the law, it is required that the relevant

However, even if the Enforcement Decree of the Act did not directly receive delegation from the mother law, it should be interpreted by examining the purport and specific functions of the provision, and accordingly, the possibility of violation or application of the parent law should be observed. For example, in cases where the parent law comprehensively provides for certain acts in the parent law, and where the Enforcement Decree provides the contents related to the act without delegation from the mother law, when interpreting and applying the provision of the mother law, the pertinent provision of the Enforcement Decree is not directly delegated from the mother law, and thus, punishment under the parent law is not applied because the provision of the former Enforcement Decree is not delegated from the mother law, and the corresponding provision of the Enforcement Decree cannot be applied based on punishment combined with the parent law. However, in relation to the parent law's law's law's law's law's law's law's law's law's law's law's law's law's law's law's law's law's law's law's law's law's law's law's law's law's law's law's law's law's

[2] [Majority Opinion] Article 41 of the Medical Service Act (amended by Act No. 14438, Dec. 20, 2016; hereinafter the same) provides that “All kinds of hospitals shall have medical personnel on duty necessary for the treatment, etc. of emergency patients and inpatients.” Meanwhile, Articles 90 through 41 of the same Act provide for penal provisions for those who violate Article 41. As such, Article 41 of the Medical Service Act provides that all kinds of hospitals shall have medical personnel on duty necessary for the treatment, etc. of emergency patients and inpatients, and does not impose any restriction on the number of medical personnel on duty to be employed at all kinds of hospitals, nor delegate this to subordinate statutes.

Nevertheless, Article 18(1) of the Enforcement Decree of the Medical Service Act (hereinafter “Enforcement Decree”) provides that “The number of medical persons on duty who shall have various hospitals pursuant to Article 41 of the Act shall be one in the case of a doctor, dentist or oriental medical doctor, and two in the case of a nurse for up to 200 inpatients, and one in the case of a doctor, dentist or oriental medical doctor, and two in the case of a nurse for every 200 inpatients exceeding 20 inpatients, one in the case of a doctor, dentist or oriental medical doctor, and two in the case of a nurse shall be added.” Although Article 41 of the Medical Service Act provides that “the number and qualification of a patient shall be assigned to a medical person on duty necessary for medical treatment, etc.,” Article 41 of the Enforcement Decree of the Medical Service Act provides that the number of medical personnel on duty and the qualification thereof shall be subject to punishment under Article 90 of the Medical Service Act, thereby establishing or expanding the subject of criminal punishment. Therefore, the Enforcement Decree provisions are

[Concurring Opinion by Justice Lee Sang-hoon and Justice Kim Yong-deok] Even though Article 41 of the Medical Service Act does not directly delegate the contents of “medical personnel on duty necessary for the treatment, etc. of hospitalized patients and emergency patients” to the Enforcement Decree, it is permissible to set the qualifications and number of medical personnel on duty or standards for the type of work suitable for various hospitals for the implementation of the relevant system, and the provisions of Article 18(2) of the Enforcement Decree of the Medical Service Act or Article 18(2) of the Enforcement Decree of the Medical Service Act prescribe the qualifications and number of medical personnel on duty for all kinds of hospitals, and in particular, allow mental hospitals, rehabilitation hospitals, tuberculosis hospitals, etc. to be placed according to the relevant hospital’s own standards. However, in light of the absence of specific delegation of the Enforcement Decree provisions, it is difficult to deem that “the qualifications and number of medical personnel on duty” for various kinds of hospitals prescribed in the Enforcement Decree of the Medical Service Act directly modify or supplement the contents of the duty of posting medical personnel on duty of medical institutions or hospitals, and thus, it has the meaning of guidelines or working rules necessary for enforcement.

Meanwhile, Article 90 of the Medical Service Act provides that a person who violates Article 41 shall be punished by a fine not exceeding three million won. Since the subject of punishment under Article 90 of the Medical Service Act is an act of violating Article 41, the subject of punishment is subject to punishment if there is no medical personnel on duty necessary for the treatment, etc. of an emergency patient and an in-patient at various hospitals. However, even if the provisions of the Enforcement Decree provide for the enforcement of Article 41 of the Medical Service Act without specific delegation from the Medical Service Act, insofar as the provisions of the Enforcement Decree provide for the enforcement of Article 41 of the Medical Service Act, it can not be a direct basis for the application of Article 90 as to “medical person on duty necessary for medical treatment, etc.” subject to punishment. Thus, the provisions of the Enforcement Decree cannot be deemed as a basis for punishment in combination with Article 41, and ultimately, it should be determined whether a person on duty is “medical person on duty necessary for medical treatment, etc.” under the interpretation of Article 41.

[1] Articles 12(1) and 75 of the Constitution of the Republic of Korea, Article 1(1) of the Criminal Act / [2] Articles 12(1) and 75 of the Constitution of the Republic of Korea, Article 1(1) of the Criminal Act, Articles 1, 2, 3(2)3, 3-2, 3-4, 3-5, 4(1), 41 (see current Article 41(1)), and 90 of the former Medical Service Act, Article 18 of the Enforcement Decree of the Medical Service Act, Articles 3, 6(1), and 11 of the Emergency Medical Service Act

[1] Supreme Court en banc Decision 98Do1759 Decided October 15, 1998 (Gong1998Ha, 2643), Supreme Court en banc Decision 98Do2816 Decided February 11, 1999 (Gong199Sang, 514), Supreme Court Decision 2012Du19526 Decided August 20, 2014 (Gong2014Ha, 1872)

Defendant

Prosecutor

Attorney Kim Jong-ju

Daegu District Court Decision 2014No4356 decided September 25, 2015

The appeal is dismissed.

The grounds of appeal are examined.

1. The enforcement decree of the law cannot modify or supplement the contents of rights and obligations of an individual provided by the law without delegation of the law as the mother law or provide new contents not provided by the law. In particular, the enforcement decree of the law provides for criminal punishment and expands the scope of punishment beyond the explicit scope of delegation of the law is contrary to the principle of no punishment without law. Thus, such enforcement decree is null and void because it exceeds the limit of delegated legislation (see Supreme Court en banc Decision 98Do1759 delivered on October 15, 1998, Supreme Court en banc Decision 98Do2816 delivered on February 11, 199).

Article 41 of the Medical Service Act (amended by Act No. 14438, Dec. 20, 2016; hereinafter the same) provides that “All kinds of hospitals shall have medical personnel on duty necessary for the treatment, etc. of emergency patients and inpatients.” Meanwhile, Article 90 of the same Act provides that a penal provision for those who violate Article 41 shall be imposed. As such, Article 41 of the same Act provides that all kinds of hospitals shall have medical personnel on duty necessary for the treatment, etc. of emergency patients and inpatients, and does not impose any restriction on the number of medical personnel on duty and the qualifications of medical personnel on all kinds of hospitals, and does not delegate them to subordinate statutes.

Nevertheless, Article 18(1) of the Enforcement Decree of the Medical Service Act provides that “The number of medical personnel on duty to be placed in various hospitals pursuant to Article 41 of the Act shall be one in the case of a doctor, dentist, or oriental medical doctor, and two in the case of a nurse for up to 200 inpatients, and one in the case of a doctor, dentist, or oriental medical doctor, and two in the case of a nurse for every 200 inpatients.” While Article 41 of the Medical Service Act provides that “the number of medical personnel on duty to be placed in all kinds of hospitals shall be limited to one in the case of a doctor, dentist, or oriental medical doctor, and two in the case of a nurse shall be limited to one in the case of a doctor, dentist, or oriental medical doctor,” Article 41 of the Enforcement Decree of the Medical Service Act provides that “the number of medical personnel on duty and qualifications of a patient shall be subject to punishment pursuant to Article 90 of the Medical Service Act.” Therefore, the Enforcement Decree of the instant case shall be null and void as it goes beyond the limit

For reasons indicated in its holding, the lower court reversed the judgment of the first instance that found the Defendant guilty of the instant facts charged and acquitted, on the grounds that punishing the act of failing to comply with the number of medical personnel on duty as prescribed in the Enforcement Decree of the Medical Service Act without delegation of the Medical Service Act pursuant to Article 90 of the Medical Service

The above judgment of the court below is just on the basis of the legal principles as seen earlier, and there is no error of law by misapprehending the legal principles on the principle of no punishment without law.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices, except a separate opinion by Justice Lee Sang-hoon and Justice Kim Yong-deok.

2. The separate opinion by Justice Lee Sang-hoon and Justice Kim Yong-deok is as follows.

A. In principle, the Enforcement Decree of the Act cannot modify or supplement the contents of an individual’s rights and obligations or set a new content that does not provide for the mother’s law, unless delegated by the mother’s law. In particular, in order to supplement the content of the Act on Criminal Punishment and to form a basis for criminal punishment in combination with the Act, it is required to specify the scope and obtain delegation from the law in accordance with the principle

However, even if the content of the enforcement decree of the parent law is not merely a clear and systematic examination of the legislative intent of the parent law and the relevant provisions in an organic and systematic manner, it cannot be deemed that it goes beyond the scope of the parent law if it is intended to embody them based on the purport of the provisions of the parent law, and thus, it cannot be deemed that it does not go beyond the scope of the parent law (see, e.g., Supreme Court Decision 2012Du19526, Aug. 20, 2014). In addition, even if the enforcement decree provides for the rights and obligations of an individual, it cannot be said that the enforcement decree is a basis for criminal punishment or tax imposition, and in other cases, whether it goes beyond the scope of delegation under the parent law or the principle of no taxation without law, or that it is prohibited or strictly restricted from interpreting the provisions of the parent law in accordance with the principle of no taxation without law or the principle of no taxation without law, while, in cases of other provisions of the parent law, the scope of delegation can not change within the scope of the parent law.

In addition, the enforcement decree can provide for matters necessary for the enforcement of the parent law as well as matters specified and delegated by the parent law (Article 75 of the Constitution of the Republic of Korea). Thus, if the enforcement decree does not directly modify or supplement the contents of rights and obligations of individuals, it shall not be subject to restrictions as seen earlier, and it shall be allowed to set the provisions as guidelines or rules necessary for the enforcement of the parent law, or to enforce the parent law.

Therefore, even if the Enforcement Decree of the Act did not directly delegate the same to the mother law, it should be interpreted by examining the purport and specific functions of the provision, and accordingly, the possibility of violation or application of the parent law should be ensured. For example, in cases where the parent law comprehensively provides for certain acts in the parent law, and where the Enforcement Decree provides for the contents related to the act without delegation of the mother law, the pertinent provisions in the Enforcement Decree shall not be directly delegated by the mother law when interpreting and applying the penal provision of the mother law, and thus, punishment under the parent law may be governed by the provisions in the parent law because it is not a violation of the provisions in the parent law itself and the pertinent provisions in the Enforcement Decree shall not be applied based on punishment combined with the parent law. However, in relation to the rules of conduct under the parent law, it may be a provision supplementing the contents within the scope of interpretation, and at least may function as guidelines or rules necessary for its enforcement or enforcement, it shall be deemed that it can be valid and applied within such scope, and it shall not be concluded as invalid or null.

B. (1) Article 41 of the Medical Service Act provides, “All kinds of hospitals shall have medical personnel on duty necessary for the treatment, etc. of emergency patients and inpatients.” However, there is no specific provision regarding the qualification of “medical personnel on duty necessary for the treatment, etc.,” and the method of performing their duties delegated to them by Presidential Decree, etc. However, Article 18(1) of the Enforcement Decree of the Medical Service Act provides, “The number of medical personnel on duty to be assigned to all kinds of hospitals pursuant to Article 41 of the Act shall be one in the case of medical doctors, dentists, or oriental medical doctors, and two in the case of nurses for every 200 patients exceeding 20 patients, one in the case of medical doctors, dentists, or oriental medical doctors, and two in the case of nurses shall be added,” and Article 18(2) of the Enforcement Decree of the Medical Service Act provides that “the number of medical personnel on duty to be assigned to the hospital itself shall not interfere with the standards of the hospital itself.”

(2) The Medical Service Act was enacted for the purpose of protecting and improving health of the people by providing for matters necessary for national medical treatment so that all the people can benefit from high-quality medical treatment (Article 1 of the Medical Service Act); medical personnel refer to medical doctors, dentists, oriental medical doctors, midwifes and nurses licensed by the Minister of Health and Welfare; and Article 2 of the Medical Service Act has the mission to contribute to improving national health and ensuring healthy living for the people by performing duties determined according to the pertinent classification (hereinafter “medical Service Act”). Medical institutions are engaged in the business of medical and midwifery (hereinafter “medical services”); among them, hospitals, dental hospitals, oriental medical hospitals, convalescent hospitals (including mental medical institutions under Article 3 subparag. 3 of the Mental Health Act), general hospitals, and general hospitals (including general hospitals, general hospitals, general hospitals, and general hospitals, which are equipped with the requirements of Article 3-2). From among hospitals, hospitals or general hospitals, hospitals or general hospitals, which are equipped with high level of difficulty in providing medical treatment primarily to inpatients, and are designated as hospitals or general hospitals (only Article 3(2) and general hospitals).

In addition, medical personnel and the head of a medical institution shall endeavor to provide patients with the best medical services by enhancing the quality of medical treatment, preventing hospital infections and developing medical technology (Article 4(1) of the Medical Service Act). Moreover, all citizens are entitled to receive emergency medical services without discrimination on the grounds of gender, age, people, religion, social status, economic circumstances, etc. pursuant to the Emergency Medical Service Act (hereinafter “Emergency Medical Service Act”). Emergency medical personnel working at an emergency medical institution, etc. designated pursuant to the Emergency Medical Service Act shall be faithfully engaged in emergency medical services so that emergency patients can always receive medical treatment (Article 6(1) of the Emergency Medical Service Act), and where a medical personnel judges that an appropriate emergency medical service cannot be provided to an emergency patient with the capacity of the relevant medical institution, he/she shall immediately transfer the patient to another medical institution capable of providing appropriate emergency medical services, and the head of a medical institution shall provide medical institutions and human resources necessary for the safe transfer of emergency patients (Article 11 of the Emergency Medical Service Act).

In light of the above provisions, allowing all kinds of hospitals equipped with not less than 30 beds to have medical personnel on duty necessary for the treatment, etc. of hospitalized patients and emergency patients to perform the duties of medical personnel or medical institutions which are required to provide the best medical services necessary for patients and emergency patients pursuant to the Medical Service Act and the Emergency Medical Service Act. The term “medical personnel on duty, etc. required for medical treatment, etc.” can be interpreted as having appropriate qualifications considering the type of the relevant hospital and the number of inpatientss in accordance with such legislative intent. Considering these circumstances, setting the standards for the qualifications and the number of medical personnel on duty suitable for all kinds of hospitals is desirable to implement the medical personnel on duty.

(3) Therefore, even if Article 41 of the Medical Service Act does not directly delegate the contents of “inpatients and medical personnel on duty necessary for the treatment, etc. of patients on duty” to the Enforcement Decree, it is permissible to set the criteria for the qualification of medical personnel on duty and the number of medical personnel on various kinds of hospitals for the implementation of the pertinent system, and to set the criteria for the qualification and the number of medical personnel on duty or the form of work suitable for all kinds of hospitals under the Enforcement Decree of the instant case or Article 41 (2) of the Enforcement Decree of the instant case, and in particular, to allow mental hospitals, rehabilitation hospitals, tuberculosis hospitals, etc. to place them in accordance

In light of the absence of specific delegation of the enforcement decree of this case, even if it is difficult to directly assume the duty of medical institutions or hospitals to directly change or supplement the content of the duty of posting medical persons on duty at each of the various hospitals prescribed in the enforcement decree of this case, the “qualification and number of medical persons on duty” in the provisions of the Enforcement Decree of this case is deemed to have meaning as guidelines or rules necessary for the enforcement or enforcement of the medical personnel system on duty.

According to Article 59(1) of the Medical Service Act, the Minister of Health and Welfare, etc. may give necessary guidance and order to a medical institution or medical person when it is necessary for policies on health and medical services or when it is likely to cause serious harm to national health, and the subject of such guidance and order may include matters concerning the system of medical personnel on duty. The provisions of the Enforcement Decree of the instant case can be a basis for the guidance and order concerning the system of medical personnel on duty. In addition, the Minister of Health and Welfare, etc. may suspend the medical business of a medical institution or medical person who violated the instant order within one year or order the revocation of such establishment permission or the closure of a medical institution (Article 64(1) of the Medical Service Act). The Minister of Health and Welfare, etc. may order the guidance, order, or the suspension of business based on such order, revocation of permission, or closure of a medical institution, etc. based thereon, whether the guidance and order satisfies the requirements of Article 59(1) of the Medical Service Act, and whether the order is unlawful solely on the ground that the guidance and order were unlawful.

(4) Meanwhile, Article 90 of the Medical Service Act provides that a person who violates Article 41 shall be punished by a fine not exceeding three million won. Since the subject of punishment under Article 90 of the Medical Service Act is an act of violating Article 41, the subject of punishment is a person who has no medical personnel on duty necessary for the treatment, etc. of an emergency patient and an in-patient at various hospitals.

However, even if the enforcement decree of this case provides for the enforcement of Article 41 of the Medical Service Act without specific delegation from the Medical Service Act, in light of the aforementioned legal principles, the application of Article 90 cannot be a direct basis provision to determine whether the provision of this case constitutes a case where “medical personnel on duty necessary for medical treatment, etc.” subject to punishment. Thus, it cannot be deemed that the enforcement decree of this case constitutes a basis provision for punishment in combination with Article 41. Ultimately, it should be determined within the scope of “medical personnel on duty necessary for medical treatment, etc.” by the interpretation of Article 41, and can be punished by applying Article 90 to the act that is determined as a violation.

In addition, according to Article 2(2) of the Enforcement Decree of the instant case, the term “psychopathy hospital, rehabilitation hospital, tuberculosis hospital, etc.” means that the pertinent hospital can be placed in accordance with its own standards so as not to interfere with the treatment of inpatients. However, since the distinction between a convalescent hospital and the said hospital under the Medical Service Act is unclear, it is not clear whether the instant Enforcement Decree provision, which generally provides for a hospital, is excluded from Article 41(2) of the Enforcement Decree of the instant case and is applicable to a convalescent hospital, and thus, even in this regard, it is difficult to regard the instant Enforcement Decree provision as a basis

C. The lower court, on the grounds the same as indicated in its reasoning, determined that punishing the Defendant’s act of failing to comply with the instant provisions of the Enforcement Decree may not be punished pursuant to Article 90 of the Medical Service Act solely on the ground that a convalescent hospital operated by the Defendant did not meet the number of medical personnel on duty under Article 41 of the Enforcement Decree of the instant Act, on the grounds that the Defendant did not meet the number

The judgment of the court below can be seen as being in accordance with the above legal principles, and contrary to the allegations in the grounds of appeal, there are no errors in the misapprehension of legal principles as to

D. As above, I agree with the majority opinion regarding the conclusion of the instant case, but with different reasons, I express my separate opinion.

Justices Yang Sung-tae (Presiding Justice)