2020Do12568 Violation of the Medical Service Act

A

Defendant

Attorney Cho Chang-chul

Law Firm LLC (LLC), Attorney Park Jong-soo, and Kim Jong-tae

Daegu District Court Decision 2019No3118 Decided August 21, 2020

January 14, 2021

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the misapprehension of legal principles as to the specification of facts charged and the assertion of violation of the rules of evidence

A. For the following reasons, the lower court upheld the first instance judgment that deemed that the instant facts charged (excluding the part of innocence; hereinafter the same shall apply) against the Defendant was sufficiently specified to the extent that it can be distinguished from other facts of crime.

(1) The facts charged in this case constitute a series of acts due to the realization of a single or continuous criminal intent and thus constitutes a single comprehensive crime.

(2) In the case of a single comprehensive crime, even if it is not specifically specified for each act forming part of the crime, the crime is specified if it is clearly stated in the time and termination period of the entire crime, method of the crime, the victim or the other party, the frequency of the crime, or the sum of the amount of damage.

(3) In light of the nature of the instant crime, which is a single comprehensive crime, an overall crime, it is inevitable to indicate the general crime. The prosecutor stated the name of each operation, the date and time of operation, the place, the patient, and the general method of crime as the facts charged to the extent sufficient to distinguish the facts from other facts.

B. Examining the records in accordance with the relevant legal principles and evidence duly admitted, the lower court’s aforementioned determination is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules

2. As to the misapprehension of legal principles concerning unlicensed medical practice and the assertion of violation of the rules of evidence

A. After recognizing facts as stated in its reasoning, the lower court upheld the first instance judgment convicting the Defendant of the instant facts charged on the following grounds.

(1) The act of inserting the ice lease pipe B for an operation, cement mixing for an operation, and injecting, etc., conducted by a medical practitioner constitutes a medical act that is likely to cause harm to public health and sanitation if performed by a medical practitioner, and it constitutes medical treatment for which only a medical doctor is allowed, not medical assistance that may be performed by a medical nurse under the medical doctor’s instruction.

(2) Even if the act of mixing cement for operation B is considered as a medical assistance act, it is difficult to view that the Defendant was given specific instructions and supervision over the cement mixing ratio and concentration for operation operation operation operation as an unlicensed medical practice.

B. Examining the records in accordance with the relevant legal principles and evidence duly admitted, the lower court’s aforementioned determination is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on “unlicensed medical practice” prohibited under Article 27(1) of the former Medical Service Act (amended by Act No. 16375, Apr. 23,

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min You-sook

Justices Kim Jae-hyung

Justices Lee Dong-won

Chief Justice Noh Tae-ok