Defendant 1 and one other

Defendants

Delay Kim

Law Firm Chungcheong, et al.

Seoul Eastern District Court Decision 2008 High Court Decision 1375 Decided May 26, 2009

The judgment of the court below is reversed.

Defendant 1 shall be punished by a fine of KRW 2,000,000.

When Defendant 1 fails to pay the above fine, the above Defendant shall be confined in a workhouse for the period calculated by converting 50,000 won into one day.

To order the provisional payment of an amount equivalent to the above fine against Defendant 1.

Of the facts charged in the instant case, Defendant 1’s violation of the Pharmaceutical Affairs Act and Defendant 2 are acquitted, respectively.

Defendant 1’s application for adjudication on the unconstitutionality of a law, the part on Article 94(1)2, Article 24(2)2, and Article 24(2)3 of the Pharmaceutical Affairs Act, shall be dismissed.

The part concerning the main sentence of Article 89 and Article 17(1) of the Medical Service Act among Defendant 1’s motion for adjudication on constitutionality of law is dismissed.

1. Summary of grounds for appeal;

A. Defendant 1 (Misunderstanding or misunderstanding of legal principles)

(1) Violation of the Pharmaceutical Affairs Act

(A) The prosecutor indicted Defendant 1 on the initial charge that he had "act of collusion under Article 22 (2) 3 of the former Pharmaceutical Affairs Act (amended by Act No. 8365 of Apr. 11, 2007; hereinafter "the former Pharmaceutical Affairs Act") and Article 24 (2) 3 of the former Pharmaceutical Affairs Act". The prosecutor committed the collusion under Article 22 (2) 2 of the former Pharmaceutical Affairs Act and Article 24 (2) 2 of the former Pharmaceutical Affairs Act on Apr. 27, 2009. The prosecutor applied for the alteration of the indictment and the amendment of the applicable provisions of the former Pharmaceutical Affairs Act in addition to the indictment. The court below applied for the alteration of the indictment. The collusion under Article 22 (2) 3 of the former Pharmaceutical Affairs Act and Article 24 (2) 3 of the former Pharmaceutical Affairs Act and the alteration of the indictment under Article 22 (2) 2 and Article 24 (2) 2 of the former Pharmaceutical Affairs Act is not recognized to be identical to the charges.

(B) “The cost of medical prescription worth KRW 14,115,00 and the cost of receiving KRW 14,115,00 for the patient’s business convenience and labor” cannot be deemed as remuneration for medical prescription. In order for Defendant 1 to have paid “price” as a result of mutual collusion, it is reasonable to regard at least the cost of prescription itself as remuneration for the arrangement of a prescription. However, Defendant 1 only issued a lawful prescription and received the said medical fee, but did not receive the above cost.

(C) “The convenience and labor in the receipt of services” cannot be seen as a consideration for the arrangement of prescriptions. Co-defendant 2’s delivery of prescription costs to Defendant 1 is merely for the benefit of the patients, at the request of the patients to reduce the number and the number of patients to be paid in installments to the hospital and pharmacy, and is not for Defendant 1’s convenience.

(D) Article 24(2)2 and 3 of the Pharmaceutical Affairs Act is a provision punishing “act of collusion between a doctor and a pharmacist,” and such provision constitutes a crime prone to a crime. As punishment to be applied to each of the persons involved inside a crime is separately stipulated in separate regulations, and individual provisions priority over the special provisions of the general provisions, the provisions on co-offenders in the general provisions of the Criminal Act premised on voluntary co-offenders cannot be applied.

(2) Violation of the Medical Service Act

The “direct medical examination” under Article 17(1) of the Medical Service Act should be interpreted to include “the case where a doctor does not face with a patient at the time of medical treatment, but a doctor provides medical treatment by telephone or other communications media, etc.” The defendant 1, at the time of issuing a prescription, provided face-to-face medical treatment for the patient at least once in the early medical year, and then issued a prescription after ascertaining the patient’s condition of clothes and health conditions through telephone, and then, issued the prescription after ascertaining the patient’s condition of clothes and health. Thus, the above act does not constitute a violation of Article 17(1) of the Medical Service Act.

B. Defendant 2 (Definite or misunderstanding of legal principles)

(1) The patient is obligated to pay the expenses for the medical prescription issued by the above defendant 1. Since the patient received a prescription by telephone, and then remitted the expenses for the issuance of a prescription to the defendant 2, the defendant 2 only delivered it to the above defendant 1 for the patient's request and for his convenience. Therefore, even if the defendant 2 delivered the above expenses for the issuance of the prescription to the above defendant 1, the "expenses for the issuance of the prescription or the delivery thereof" itself does not constitute provision of money, benefits, and labor under Article 24 (2) 2 of the Pharmaceutical Affairs Act.

(2) Defendant 2 did not have conspired or conspired with the superior defendant 1.

2. Determination

A. Determination as to the assertion that Defendant 1’s amendment to indictment is unlawful

(1) The prosecutor may add, delete, or modify the facts charged or the applicable provisions of Acts stated in the indictment with the permission of the court within the extent not impairing the identity of the facts charged. The identity of the facts charged is maintained if the social facts, which form the basis of the facts charged, are the same in the basic point of view. In determining the identity of these basic facts, the defendant's act and the social facts should be based in mind of the function of the identity of the facts, and normative elements should also be taken into account (see Supreme Court Decision 2003Do8153, Jul. 22, 2004).

(2) The summary of the facts charged prior to the amendment of the instant case is as follows: “The Defendant, a pharmacy founder of the instant medical institution, provided the business convenience and labor to collect KRW 14,115,00 in return for the prescription arrangement, instead of paying KRW 14,15,00 in return for the prescription arrangement, and Defendant 1, the founder of the instant medical institution, committed a collaborative act of ordering or inducing the preparation of drugs at Defendant 2’s pharmacy by receiving KRW 14,115,00 in return for the prescription arrangement; and the summary of the facts charged changed from April 29, 2009 is as follows: “The Defendant conspired in collusion with Defendant 2, a medical institution founder, delivered KRW 14,115,00 in return for the prescription arrangement, and KRW 14,15,00 in return for the prescription arrangement for the receipt of KRW 14,15,00 in return for the modification of the portion that Defendant 2 had already delivered to Defendant 1 the prescription amount to Defendant 14,15,000.”

(3) Therefore, since the facts charged as modified by the above indictment are identical in the basic point of view with the facts charged prior to the modification, the modification of the above indictment is lawful. Defendant 1’s allegation in the grounds of appeal is without merit.

B. Determination of misconception of facts or misapprehension of legal principles as to the defendants' violation of the Pharmaceutical Affairs Act

(1) Summary of the facts charged and the judgment of the court below

The summary of this part of the facts charged is as follows: “A pharmacy founder shall not engage in collusion with the founder of a medical institution providing money, goods, benefits, labor, entertainment and other economic benefits in return for the solicitation of prescription. Nevertheless, the Defendants conspired with Nonindicted 1 (a disposition of suspending indictment on the same day), an employee of the “○○ pharmacy” operated by Defendant 2, and Defendant 1 issued a prescription to the “○○ pharmacy” on January 4, 2006 through Nonindicted 3, etc., the nurse, and Defendant 2, under the above prescription, prepared and sold a “moring” drug, such as the “morling,” and sold to the said patient. Nonindicted 3, etc., confirmed the fact that the prescription cost was paid by the patient, and received KRW 13,00,00 from the patient, and found Defendant 1 guilty of the act of offering the aforementioned medical institution’s medical prescription to Defendant 1 in return for the aforementioned act of receiving KRW 100 and KRW 170,000 from July 26, 2007.

(2) Judgment of the court below

(A) Each protocol of interrogation prepared by a judicial police officer against Defendant 2 denies the contents of each protocol at the court of the original trial (the second court date) by the defense counsel of the Defendants, so they cannot be used as evidence because they are inadmissible as evidence, and the Defendants are unable to use it as evidence at the investigative agency, the court of original trial, and the court of original instance.

(B) The following facts can be acknowledged in full view of the evidence revealed in the records of the instant case.

1) Defendant 1, around November 11, 2002, is a pharmacist who opened the ○ pharmacy at the 3rd floor of Dongdaemun-gu Seoul (hereinafter address omitted) in Dongdaemun-gu (hereinafter the address omitted), and Defendant 2 is a pharmacist who opened the ○ pharmacy at the 3rd floor of the same (building name omitted) building around November 22, 2002.

2) While residing in the field of Seoul, Non-Indicted 2 visited the father and the father of the △△△△△ branch, and received medical treatment on the part of Defendant 1. After that, Non-Indicted 2 demanded Defendant 1 to issue a prescription without direct medical treatment upon request of Defendant 1 because it is difficult to directly visit the hospital any longer due to the directors of the Dongbcheon-si. Defendant 1 issued a prescription without direct medical treatment. On January 4, 2008, Non-Indicted 2 received a prescription from the father and the father of the husband at the request of the father of the husband, and received a prescription from the father and the father of the △△ branch (No. 1 of the list of crimes in the attached Form 1 of the judgment of the original instance, and the evidence record No. 1876 of the evidence record) (hereinafter referred to as the “non-Indicted 2”).

3) Nonindicted 4 heard the novel that “it may take medicine without having to a hospital,” and asked Nonindicted 4 that “it is possible to take medicine even without having to have to have to do so at a hospital,” with the phone call from the △△ Party (the telephone number omitted). Accordingly, Nonindicted 4 asked Nonindicted 4 to “it is necessary to issue a prescription and send it to any pharmacy by sending it to a pharmacy.” Nonindicted 4 requested Nonindicted 4 to “the prescription to be sent to the ○○ pharmacy at which he had to the hospital,” and received the delivery of a prescription and preparation expenses by sending it to the bank account notified by the ○○ Contracting State, and then received a prescription prescribed in one and half times of the prescription and preparation expenses, as indicated in the table of crimes attached to the lower judgment (14, 51, 69, 125, 237, 311, 338, 457, 457, 1625, 1665, 167.

4) Nonindicted 5 visited △△△△ Group and received a prescription for delivery and delivery to Defendant 1, but asked questions as to whether only a nurse working at the hospital counter can receive a prescription. Accordingly, Nonindicted 5 visited △△△ Group and received a prescription for delivery at the reception counter without a doctor’s doctor’s care. Nonindicted 5 received a prescription for delivery to ○○○ Branch and ○○ Branch. Nonindicted 5 directly visited ○○ Branch and ○○ Branch, 5, 6, 15, 6, 3, 4, 15, 6, 15, 6, 15, 4, 15, 6, 15, 4, 5, 15, 15, 6, 15, 4, 5, 15, 15, 18, 4, 5, 5, 5, and 5, 5, and 5, 19, 5, 18, 5, and 4, 5, and 5.

5) Nonindicted 6 received medical prescriptions from a doctor on multiple-tamp and non-indicted 6 at △△ Hospital and issued a prescription one time with respect to multiple-tamper and non-indicted 6. Non-indicted 6 also visited a hospital at least 2-3 times, did not receive direct medical treatment from a doctor at the time, and only received a prescription from a hospital staff at the hospital counter, and submitted a prescription to the ○○ Contracting State for the preparation of medicine. Nonindicted 6, while he received medicine from the ○○ Contracting State, requested the issuance of a prescription by phone call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call call out.

6) Non-Indicted 7 demanded Defendant 1 to send a prescription to the ○○ Contracting State where Non-Indicted 7 was under preparation of a drug by telephone without direct treatment while working as an instructor of a private teaching institute. Defendant 1 sent a prescription to the previous ○○ Contracting State without direct treatment. Accordingly, Defendant 7 was asked about the medical condition of the drug taken through a nurse, etc., and followed the procedure to confirm whether there is no side effect. Non-Indicted 7 was under preparation after paying the prescription fee and preparation fee into the account of the ○○ Contracting State. Non-Indicted 7 was under preparation of a drug after paying the prescription fee and preparation fee in the account of the ○○ Contracting State. Non-Indicted 7 received the aforementioned method of the judgment of the court below without direct treatment over five times as indicated in the table of crimes (1), 62, 173, 443, 343, and 343, and received the record of statement through the ○○ Contracting State (Evidence evidence 18, 188).

7) Nonindicted 8, who resides in Chungcheongnam-do, visited 6 Nonindicted 1 and 6 Defendant 1 to Non-Indicted 6, received non-Indicted 1 and Non-Indicted 6’s medical treatment. Defendant 1 explained that she can take place only one month. Non-Indicted 8’s phone number after taking out all prescribed one-month drugs at the hospital’s representative, and Non-Indicted 6’s prescription was called “the known” and Non-Indicted 6’s prescription was called “non-Indicted 6’s pharmacy” and Non-Indicted 6’s prescription was called “non-Indicted 6’s pharmacy,” “Non-Indicted 4 and Non-Indicted 6, Non-Indicted 6, Non-Indicted 7, Non-Indicted 65, Non-Indicted 6, Non-Indicted 7, Non-Indicted 4, Non-Indicted 6’s telephone, and sent the same amount of prescription to Non-Indicted 6’s account, Non-Indicted 7, 75, and 75,000.

8) Nonindicted 11 visited Nonindicted 4’s introduction to Nonindicted 4, and received non-indicted 1’s medical treatment as a rain and a set of 11. After that, Nonindicted 11 again received medical treatment from 100 and Defendant 1, “it is possible to send medicine without entering a hospital.” Defendant 1 may send medicine to ○○ Contracting State if necessary,” and “Nonindicted 11 sent medicine to ○○○○○○○○○○.” Nonindicted 11 called Nonindicted 3’s name and date of birth to ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ KRW 65 times, Nonindicted 16’s medical prescription, and then sent it to ○○○○○○○○○○○.

9) Nonindicted 12 visited the child-friendly father of △△△△ and was in a prescription issued by Nonindicted 13 for medical treatment with respect to the rain and dyeries. After that, Nonindicted 12 was the date of the company, and the time was no longer for Nonindicted 12 to directly visit the above hospital, Nonindicted 12 wanted to receive the call from the child-friendly father of △△△△△△△△△△△△△△△ and the side of the △△△△△ branch, asked the drug preparation at one pharmacy. Nonindicted 12 asked the drug preparation at one pharmacy; Nonindicted 12 was in preparation at the ○○ pharmacy; Nonindicted 12 sent the prescription to the ○○○○○ pharmacy; Nonindicted 12 was informed of the telephone number and preparation expenses; Nonindicted 12 deposited the above money; Nonindicted 12 was delivered to Nonindicted 12, 300,000 won; and 134,000 won of the record of the trial; and 14,000 won of the above evidence.

10) Around April 2005, Non-Indicted 14 received 4-5 medical treatment, such as receiving medical treatment by visiting △△△ Division and △△△△. After that, Non-Indicted 14 received 4-5 medical treatment by visiting her workplace (private teaching institute). Then, after considering the fact that he/she may receive baton from her hospital because she became an instructor of a private teaching institute, he/she would have no time to directly visit her hospital, and asked her hospital as to whether he/she is entitled to prepare baton without direct visit by her phone. At the hospital’s address, Non-Indicted 14, as well as the response that it is possible, called “as he/she receives baton at ○○ pharmacy,” Non-Indicted 14 said that “Non-Indicted 14 received 80-day medical treatment by phone call from ○○ pharmacy, 80-day medical treatment, 18-day medical treatment, and 8-day medical treatment, etc.

11) Defendant 2’s ○○ Contracting State received a prescription from Defendant 1’s △△ Division and delivered a prescription slip sent by the patients. From January 4, 2006, Defendant 2 kept and managed a separate account book in order to prevent disputes with the father and wife of the △△△△ Hospital with respect to the payment of the prescription charge. The account book is ordinarily recorded in the case of issuing a prescription without direct treatment by day. After receiving the prescription charge and the preparation charge in a lump sum, Defendant 2 received confirmation from the father and the father of the △△△△△ Hospital to verify whether the above payment was made or not. Furthermore, a pharmacy operated from 8:0 hours to 9:0 hours from 19:0,000 to 24 hours from 10:0,000 to 24 hours from 10:00 to 200,000 to 24 hours from 10:00 to 200,000 to 20,000 to 20.

(C) Determination

According to the above facts, the patients of this case were those who had been under preparation of a prescription with the above ○○○○ pharmacy located in the same building after receiving the prescription from the above ○○○○○ pharmacy, and had been under preparation of a prescription with the above ○○○○○○ pharmacy, and requested the hospital to issue a prescription to the above ○○○ pharmacy which has been prepared by telephone. The acts of delivery of the prescription to the above ○○○○○○○ pharmacy, including the issuance of a prescription to the above ○○○○○ pharmacy, may not be readily concluded that the acts of delivery of the prescription to the above ○○○○○○ pharmacy, including the issuance of a prescription to the above ○○○○○ pharmacy, constitute “an act of delivery of the prescription to the above ○○○○○ pharmacy,” and the acts of delivery of the prescription to the above ○○○ pharmacy, including the medical doctor and the drug pharmacist, and there may be no evidence to conclude that the above acts of delivery of the prescription to the above ○○○ pharmacy and the patient.”

Therefore, the above part of the facts charged constitutes a case where there is no proof of crime, and thus, the court below rendered a verdict of innocence pursuant to the latter part of Article 325 of the Criminal Procedure Act, but the court below rendered a judgment of conviction.

C. Determination of misconception of facts or misapprehension of legal principles as to Defendant 1’s violation of the Medical Service Act

Article 17(1) of the Medical Service Act provides that “A medical doctor, other than a doctor who directly conducts a medical service and directly conducts a medical examination or conducts a postmortem examination, shall not prepare a prescription and deliver it to the patient.” As to whether the “direct medical examination” of a woman is included in the medical examination by telephone or by other communications media.

(1) The term "medical examination" means the examination of the patient's attitude and the identification of the patient's beds and the patient's name by hearing and observing the patient's attitude. There are various methods of the examination, such as the examination of the diagnosis, the diagnosis, the examination of the patient's name, the promotion of the diagnosis, and the examination by using various scientific methods (see Supreme Court Decisions 93Do153, Aug. 27, 1993; 2005Do4102, Aug. 19, 2005; 2005Do4102, etc.). A medical person is responsible for promoting the improvement of public health and contributing to securing the healthy life of the people by performing his/her duties (Article 2(2) of the Medical Service Act), and upon receiving a request from the patient to perform medical acts, he/she is obliged to perform medical acts, i.e., the duty to perform medical acts and make efforts to ensure that the patient can perform his/her best treatment in accordance with the good faith principle.

(2) However, by telephone, only “the medical examination” among the diagnosis methods to determine the patient’s beds and the name of the patient is possible, and other diagnosis methods are not available, and thus, “the doctor’s duty of care to make best treatment in accordance with the principle of trust and good faith” is highly likely to be neglected.

In addition, the concerns of misuse and abuse of drugs are also increasing because the other party who received the phone is not a doctor or the other party to the phone is not a patient himself/herself, or it is impossible to confirm whether the other party to the phone is a patient. In reality, in this case, the patient was given a prescription through the staff of the △△ Party, not a doctor, and the patient was given a prescription through the staff of the staff of the △△ Party, who was not a doctor, and if

In addition, Article 34 of the Medical Service Act allows remote medical treatment in exceptional cases where patients who have difficulty in "direct medical examination" under Article 17 of the Medical Service Act are equipped with equipment to guarantee a level similar to direct medical examination.

(3) In light of the provisions of the Medical Service Act and the significance of a medical examination, the mission of a medical person, and the contents of a medical care duty, it is reasonable to deem that the “direct medical examination” under Article 17(1) of the Medical Service Act cannot include a medical examination by only “tele or any similar telecommunications medium.” Defendant 1’s ground of appeal is without merit.

3. Conclusion

Therefore, there is no ground to believe that there is a mistake of facts as to Defendant 1’s violation of the Medical Service Act among the judgment of the court below, and the above part should be reversed on the grounds of the defendants’ assertion of mistake of facts as to the violation of the Pharmaceutical Affairs Act. The court below found Defendant 1 guilty of all the charges of this case including the charges of violating the Pharmaceutical Affairs Act with respect to Defendant 1, and sentenced Defendant 1 to a single punishment on the grounds that each of the above crimes is in a substantive concurrent relationship under the former part of Article 37 of the Criminal Act, so the judgment of the court below is no longer maintained on all of the defendants. Accordingly, the judgment of the court below is reversed in accordance with

Except for deletion of paragraph (1) of the crime of the original judgment, the facts constituting the crime recognized by this court are as stated in the corresponding column of the original judgment, and the summary of the evidence is the same as stated in the corresponding column of the original judgment. Therefore, it is cited as it is in accordance with Article 369

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 89 and 17(1) of the Medical Service Act [Article 68 and 18(1) of the former Medical Service Act (amended by Act No. 8366 of Apr. 11, 2007) concerning a part of the facts charged] (Selection of fine)

1. Aggravation of concurrent crimes;

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (Aggravation of concurrent crimes with punishment prescribed in the Medical Service Act of May 18, 2007, with the largest penalty)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Of the facts charged in the instant case, the summary of the Defendants’ violation of the Pharmaceutical Affairs Act is the same as that of the above 2-B. (1). As seen in the above 2-B. (2), the Defendants acquitted under the latter part of Article 325 of the Criminal Procedure Act on the ground that there is no proof of crime.

1. The legal provisions which are the object of adjudication on constitutionality;

A. Articles 94(1)2 and 24(2)2 and 3 of the Pharmaceutical Affairs Act (amended by Act No. 8558 of July 27, 2007)

▷ 제94조 (벌칙)

(1) Any of the following persons shall be punished by imprisonment for not more than three years or by a fine not exceeding ten million won:

2. A person who commits a collusion, in violation of Article 24 (2);

▷ 제24조 (의무 및 준수 사항)

(2) Any pharmacy founder (including persons working for the relevant pharmacy; hereafter the same shall apply in this Article) and any medical institution founder (including persons working for the relevant medical institution; hereafter the same shall apply in this Article) shall be prohibited from engaging in any of the following collusion:

2. The act, performed by any pharmacy founder, of offering money, goods, conveniences, labor, entertainment and other economic interest in return for medical prescriptions arranged by a specific medical institution in favor of him/her;

3. The act, performed by a medical institution founder, of ordering or inducing any person who has a prescription to get a preparation of drugs at a specific pharmacy (excluding the act of giving comprehensive guidance on the names, locations, etc. of pharmacies in the relevant area at the request of

B. Article 89 and the main sentence of Article 17(1) of the Medical Service Act (amended by Act No. 8559 of July 27, 2007)

▷ 제89조 (벌칙)

Any person who violates Articles 15 (1), 17 (1) and (2) (excluding the latter part of the proviso to paragraph (1) and the proviso to paragraph (2)), 56 (1) through (4), and 57 (1) shall be punished by imprisonment for not more than one year or by a fine not exceeding five million won.

▷ 제17조 (진단서 등)

(1) No medical doctor, dentist, or herb doctor, other than a medical doctor, dentist, or herb doctor, who directly engages in medical service and directly conducted a medical examination or conducted a postmortem examination (hereafter in this paragraph, including a doctor engaged in the postmortem examination only, who is in charge of the postmortem examination), shall prepare a medical certificate, written autopsy examination, certificate of prescription, or prescription (including a prescription prepared by a doctor or dentist in an electronic document form with a digital signature under the Digital Signature Act (hereinafter referred to as "electronic prescription"), and deliver it to a patient (referring to his/her spouse, lineal ascendant or descendant, or lineal ascendant of his/her spouse), or a public prosecutor of a district public prosecutor's office (limited to an electronic prescription) conducting a postmortem examination pursuant to Article 222 (1) of the Criminal Procedure Act.

2. Defendant 1’s assertion

A. unconstitutionality of Article 24(2)2 and 3 of the Pharmaceutical Affairs Act

(1) Violation of Article 11(1) of the Constitution (Principle of Equality)

① Article 24(2)2 of the Pharmaceutical Affairs Act provides that “the act of a pharmacist provides money, goods, etc. to a doctor in return for medical prescriptions” as the constituent elements of the act of actually paying money, goods, etc. in return for medical prescriptions. However, Article 24(2)3 of the Pharmaceutical Affairs Act provides that “ regardless of the payment of the price for medical prescriptions, the act of introducing a specific pharmacy to a patient in return for medical prescriptions shall be punished as provided in Article 24(2)2 of the Pharmaceutical Affairs Act.” Article 24(2)2 of the same Act provides that “The act of a pharmacist in return for medical prescriptions to a doctor in return for medical prescriptions shall not be punished as provided in Article 24(2)2 of the same Act. However, the act of a pharmacist in receipt of money, goods, etc. from a pharmacist in return for medical prescriptions shall be punished as provided in Article 24(2)2 of the same Act.” Article 24(2)3 of the same Act provides that a pharmacist in return for medical prescriptions shall receive money, goods, etc.

(2) Violation of Article 12(1) of the Constitution (Violation of the Criminal Procedure Act)

Article 24(2)2 and 3 of the Pharmaceutical Affairs Act provides for punishing the same factual basis as a crime between a doctor and a pharmacist. Although Article 24(2)2 of the same Act provides that a pharmacist shall provide a doctor with money, goods, etc. in return for the issuance of a prescription, Article 24(2)3 of the same Act provides that a pharmacist shall provide a doctor with money, goods, etc. in return for the issuance of a prescription. However, Article 24(2)3 of the same Act provides that a doctor shall issue a prescription without receiving any consideration for the issuance of a prescription, and provides the patient with an instruction and inducement of the preparation of drugs at a specific pharmacy without receiving any consideration for the issuance of a prescription, and ultimately, Article 24(2)2 and 3 of the Pharmaceutical Affairs Act is unclear whether a doctor specifically punishs any act. In addition, Article 24(2)3 proviso of the same Act excludes a person subject to punishment by comprehensively taking into account the name, location, etc. of a pharmacy in the region at the request of a patient.

(3) Violation of Article 15 of the Constitution (Freedom of Employment Selection)

As seen earlier, Article 24(2)3 of the Pharmaceutical Affairs Act prohibits a doctor from taking advantage of the fact that there is no illegal rebates regarding the issuance of prescriptions between a doctor and a pharmacist, and, in any case, a doctor is punished by ordering or inducing a preparation of medicine at a specific pharmacy while issuing a prescription to a patient. As such, the doctor’s freedom to exercise his/her occupation was excessively restricted and lost the suitability of the means. In particular, the occurrence of a pharmacy at a certain place that is not located at a certain distance when the hospital opens a new hospital is naturally natural, and the act of introducing a pharmacy on the same floor and a pharmacy to a patient who provided medical treatment in the same building as the hospital and the same floor as the pharmacy, and the act of introducing a pharmacy on the same floor with a prescription to a patient who provided medical treatment, thereby restricting the freedom to exercise his/her occupation is in violation of the minimum degree of damage and the balance of legal interests.

(4) Violation of Article 37(2) of the Constitution (Principle of Excessive Prohibition)

Article 24(2)3 of the Pharmaceutical Affairs Act is based on the legislative purpose of preventing the abolition of “illegal rebates between a doctor and a pharmacist in relation to the issuance of prescription” after running a pharmaceutical pharmaceutical pharmaceutical business. However, the punishment of the act of introducing a pharmacy in the same building without any money or valuables is excessive punishment by imprisonment for not more than three years or a fine not exceeding 10 million won in consideration of the criminal policy aspects to achieve the general preventive purpose. While a pharmacist is subject to punishment for illegal rebates, it is against the suitability of means, the minimum damage, and the balance of legal interests.

B. unconstitutionality of Article 17 (1) of the Medical Service Act

Article 17(1) of the Medical Service Act is likely to be interpreted as ① “A doctor shall not prepare and deliver a medical certificate if he/she does not directly examine a patient” or ② “a doctor shall deliver it directly to him/her, other than an agent who has diagnosed a medical certificate, death certificate, or other certificates with a medical examination.” Furthermore, the concept of “direct medical examination” should be limited to ① “a patient without face-to-face medical examination” and ② “a case where a doctor provides medical treatment through telephone or other communications media, etc.” should be interpreted as including “a case where a doctor provides medical treatment without face-to-face medical examination, but without face-to-face medical examination,” and thus, it violates the principle of clarity and Article 12(1) of the Constitution.

3. Judgment on the premise of judgment

Defendant 1 was indicted pursuant to Articles 94(1)2 and 24(2)3 of the Pharmaceutical Affairs Act, and Articles 89 and 17(1) of the Medical Service Act, on the ground that Defendant 1 and Defendant 2 conspired with Defendant 1 to issue a prescription to the patient by ordering or inducing the preparation of a prescription at the ○○ pharmacy operated by Defendant 2, and that he issued a prescription without direct examination, and on the ground that he was indicted pursuant to Articles 94(1)2 and 24(2)3 of the Pharmaceutical Affairs Act, and Articles 89 and 17(1) of the Medical Service Act. In addition, on the ground that the indictment on the part of the above violation of the Pharmaceutical Affairs Act was revised in collusion with Defendant 2, on the ground that Defendant 2 committed an act of collusion with Defendant 1 providing the cost of prescription, convenience in receiving duties, and labor in return for the solicitation of prescription, and on the ground that Article 24(2)3 of the Pharmaceutical Affairs Act was excluded from the trial by amendment, and thus, Article 24 subparag. 2 of the above Pharmaceutical Affairs Act does not have any presumption of the premise.

Therefore, the request for adjudication on constitutionality of the above provisions of the Pharmaceutical Affairs Act is unlawful, since it is not a premise of the judgment.

4. Determination as to the unconstitutionality of Article 89 and Article 17(1) of the Medical Service Act

A. If the elements of a crime are abstract or ambiguous concept or its scope is too broad and comprehensive, and it is not clear whether a citizen who has ordinary ability to judge is prohibited by the law is in violation of the principle of no punishment without the law (see, e.g., Supreme Court Decision 97Do2231, Jun. 18, 1998). However, it is difficult to use a term of universal or general meaning in the punishment law to properly regulate various life-related relationships in which the elements of the punishment law are subdivided into daily and it is difficult for him/her to do so, and it is inevitable to use a term of universal or general meaning in the punishment law to a certain extent in order to properly regulate various life-related relations which are physically changing, and it is inevitable to determine whether a reasonable interpretation is possible in consideration of the relationship with the purpose of the law enacted and other provisions (see, e.g., Constitutional Court Order 9Hun-Ga94, Feb. 24, 200). Therefore, the legislative purpose of the punishment law or the overall content and structure of the punishment law, etc.

B. As examined in the judgment on the grounds of appeal by Defendant 1, in light of the provisions of the Medical Service Act, the meaning of a medical examination, the mission of a medical person, and the contents of a medical care duty, it is reasonable to interpret that the “direct medical examination” under Article 17(1) of the Medical Service Act cannot include a medical examination by only “tele or other communication media with a similar degree.” It is difficult to say that the provision is unclear that a citizen with ordinary judgment ability is prohibited by the law, or that it violates the principle of clarity because it is ambiguous to the extent that it is not foreseeable that a citizen with ordinary judgment ability is subject to punishment due to the diversification of the language or text.

5. Conclusion

Therefore, the part concerning the Pharmaceutical Affairs Act among the application for the examination of constitutionality of the case is dismissed as it is not a premise of the judgment. The applicant's application for the examination of constitutionality of the provision of this case is dismissed as it is without merit.

It is so decided as per Disposition for the above reasons.

Justices Choi Jong-su (Presiding Justice)