In a case where one of the items to be specified in the grounds for reversal is omitted while a conviction is declared, whether it constitutes grounds for reversal (affirmative)

Articles 323(1) and 383 subparag. 1 of the Criminal Procedure Act

Supreme Court Decision 2009Do3505 Decided June 25, 2009 (Gong2009Ha, 1265), Supreme Court Decision 2010Do9151 Decided October 14, 2010, Supreme Court Decision 2012Do4701 Decided June 28, 2012

Defendant

Defendant

Law Firm Barun Law LLC, Attorneys Park Il-hwan et al.

Busan District Court Decision 2013No1919 Decided October 18, 2013

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

The grounds of appeal are examined.

1. According to Article 323(1) of the Criminal Procedure Act, a judgment of conviction must clearly state the facts constituting a crime, the summary of evidence, and the application of the law. In a case where either of them is omitted in whole in the grounds of judgment while a judgment of conviction is rendered, it constitutes a violation of the law that affected the judgment under Article 383 subparag. 1 of the Criminal Procedure Act and constitutes grounds for reversal (see Supreme Court Decision 2009Do3505, Jun. 25, 2009, etc.).

2. According to the reasoning of the judgment below, the court below accepted the prosecutor's appeal and convicted the defendant with respect to the fraud caused by deception of medical care benefits related to food which the court of first instance acquitted (hereinafter "the facts charged in this part"), among the facts charged against the defendant, and sentenced the whole judgment of the court of first instance on the ground that the remaining crimes convicted in the court of first instance and the above crimes are concurrent crimes under the former part of Article 37 of the Criminal Act, and sentenced to a fine of KRW 20 million, and subsequently, accepted the part corresponding to the judgment of the court of first instance in accordance with Article 369 of the Criminal Procedure Act. However, the summary of the evidence of the judgment of the court of first instance cited by the court of first instance is only written evidence as to the fraud caused by deception of medical care benefits related to preparation expenses and the violation of the Medical Service Act, but does not contain any evidence as to this part of the facts charged.

Examining the above facts in light of the legal principles as seen earlier, the judgment of the court below which entirely omitted the summary of evidence concerning the facts charged in this part of the judgment is unlawful and thus cannot be exempted from reversal. Furthermore, the court below shall point out that the court below needs to examine with regard to the above facts as seen below after remand.

Of this part of the facts charged by deceitation of medical care benefits related to food, the act of defraudation of dietitians, cooking additional charges, selective group additional charges and additional charges is included in the facts charged. However, according to Articles 5(2) and 8(2) of the Regulations on the Standards for Medical Care Benefits in National Health Insurance delegated by Article 41(2) of the National Health Insurance Act, “the list of health insurance act benefits and the benefit relative value (Notice of the Ministry of Health and Welfare No. 2010-38 of the Ministry of Health and Welfare)” as publicly notified by Article 5(2) and Article 8(2) of the Regulations on the Standards for Medical Care Benefits in National Health Insurance, the amount of nutrition additional charges and cooking additional charges shall be calculated according to the number of full-time dietitians or cooks belonging to the relevant medical care institution, and the amount of selective group additional charges shall be calculated in cases where at least two meals have been provided for at least one in the case where a dietitian belonging to the relevant medical care institution is full-time employed by at least one patient, and it shall be calculated directly from the relevant medical care institution.

Therefore, the additional meal charges that require a medical care institution to directly operate a restaurant are limited to the additional charges directly operated by the medical care institution, and the remainder of dietitians' additional charges, cooking additional charges, and selective group additional charges are determined according to the existence and number of full-time dietitians under the jurisdiction of the medical care institution (However, in the case of selective group additional charges, it is also necessary to determine whether the selective group has been provided) and does not require the medical care institution to directly operate the restaurant.

However, in the reasoning of the judgment, the court below, on the grounds of the reasoning of the judgment, did not deem the method of operating the cafeteria at the ○○ Hospital as a direct operation, which is subject to the direct payment of the additional charges, and determined that the Defendant’s filing of a report as if he directly operated the cafeteria constitutes fraud, and did not decide on whether the direct operation of the medical care institution related to the receipt of the dietitian’s additional charges, cooking additional charges, and selective group additional charges, which are not the requirements for the delivery of meals, was legitimate, and what there was the Defendant’s deception

Therefore, after remanding, the lower court should determine whether there was deception by the Defendant regarding the food materials inspection, the preparation of meals, the preparation of cooking procedures, the management of cooking and cooking hygiene, and the management of the restaurant facilities, etc. by further examining whether the overall operation process of the cafeteria was directly operated by the ○○ Hospital by the ○○ Hospital (the “affiliated” refers not to the fact that a formal employment contract was concluded, but to be determined based on whether the ○○ Hospital was actually employed by the medical care institution and under the direction and supervision of the medical care institution). In addition, it seems that there is room for the lower court to have affected the judgment as to whether the ○ Hospital was directly operated by the ○○ Hospital through additional learning of the overall operation process of the cafeteria including the inspection of food materials, the preparation of meals, the management of cooking procedures, and the management of the cafeteria facilities.

3. Therefore, the judgment of the court below shall be reversed (the part of the judgment of the court below concerning fraud caused by the deception of medical care benefits related to food shall be reversed for the reasons mentioned above, and the above crime shall be reversed for the reasons that there are concurrent crimes between the remaining crimes and the former part of Article 37 of the Criminal Act, and the judgment of the court below shall be reversed in its entirety), and the case shall be remanded to the court below for a new trial and determination. It is so

Justices Kim Yong-deok (Presiding Justice)