Defendant 1 and one other

Defendants

Kim Tae-ho

Attorney Seo Young-young

Seoul Central District Court Decision 2006 High Court Decision 1834, 2006 High Court Decision 2783 decided January 6, 2009

The part of the judgment of the court below against the Defendants is reversed.

Defendant 1 shall be punished by a fine for negligence of KRW 3,00,000 and by a fine of KRW 1,000,000, respectively.

If the Defendants did not pay each of the above fines, the Defendants shall be confined in the Labor House for the period calculated by converting each of 50,000 won into one day.

To order the Defendants to pay an amount equivalent to the above fine.

Of the facts charged in the instant case, each of the Defendants’ violation of the Guarantee of Automobile Accident Compensation Act against the Defendants and each of the fraud against the Victim’s Labor Welfare Corporation against Defendant 1 is acquitted.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misapprehension of legal principles

(1) As to each of the Defendants’ frauds against each of the automobile damage insurance companies

(A) The part concerning deceitation of inspection fees on the face of the core test

Even though the Medical Technicians Act and the Enforcement Decree of the same Act stipulate that clinical psychologists, who are a kind of medical technician, may conduct a heart test under the direction of a medical doctor, the above provisions do not purport to exclude the physician from conducting a heart test itself as part of medical practice. Thus, if Defendant 1, who is a medical doctor, directed and supervised a nurse and conducts a heart test, he/she can file a claim for medical insurance medical fees, which is a legitimate prosecutor’s instruction, but the court below found the Defendants guilty of this part of the charges of fraud on the premise that only a clinical path can conduct a heart test under the direction of a medical doctor. Thus, the court below erred by misapprehending the legal principles on the legality of the prosecutor, or by misunderstanding the legal principles, which affected the conclusion of the judgment.

(B) The part concerning defraudation of the medical guidance fee

According to Article 23 (4) 4 of the Pharmaceutical Affairs Act, a doctor has the right to prepare medicines for an in-patient. Accordingly, where Defendant 1, who is a doctor, directly or under his direction and supervision, provided the guidance for taking medicines to the patient, he may claim the guidance for taking medicines as motor vehicle insurance medical fees. However, the court below found the defendant guilty of this part of the charges of fraud on the premise that only a pharmacist may receive the guidance for taking medicines. Thus, the court below erred by misapprehending the fact about the guidance for taking medicines or by misapprehending the legal principles, which affected the conclusion of the judgment.

(C) The part that there was no person who committed the act of defraudation or who was involved in the crime of accomplices.

As to the remainder of the claims for motor vehicle insurance medical fees, the nurse et al. actually provided treatment to the patient according to the medical doctor’s prescriptions or instructions, but the treatment act was not properly recorded in the evidential documents, such as medical instruction records, nursing records, radiological records, physical therapy records, etc., and thus, it cannot be viewed as false claims. Even if the medical claims were made by falsity, this is merely limited to Non-Party 1, the chief of ○○○○ Council’s office, as the defendants knew, and even though the defendants participated or conspired in advance, the court below found the defendants guilty of this part of the charges, which affected the conclusion of the judgment by misunderstanding the facts.

(2) As to the Defendants’ violation of the Guarantee of Automobile Accident Compensation Act

In a case where Defendant 1, a doctor, prepared a statement of claim for medical expenses and claimed for motor vehicle insurance medical fees according to the medical records prepared by Defendant 1, the court below found Defendant 1 guilty of this part of the charges, even though there was no entry that the prescription was enforced, such as the nursing record verifying that the prescription, etc. stated in the medical records, and thus, it cannot be deemed as a case where “the medical fees are claimed differently from the medical records entered in the medical records” as provided in Article 38(3) of the Guarantee of Automobile Accident Compensation Act. Thus, the court below erred by misapprehending the facts or by misapprehending the legal principles

(3) As to Defendant 1’s fraud against Korea Labor Welfare Corporation

Defendant 1 was found guilty of all of the charges of frauds against Defendant 1, even though Nonindicted 3, 4, and Nonindicted 5, who were the patients of the above hospital and the head of the original office, did not participate in the operation of the above hospital, on the ground that Defendant 1 did not participate in or conspired to commit each of the instant frauds against the Korea Workers' Compensation and Welfare Service, which was recruited by Nonindicted 2, the patient of the above hospital, and Nonindicted 3, 4, and the head of the original office, who was a patient of the above hospital, by Nonindicted 2 at the request of Nonindicted 2, and the head of the ○○○○○○. The judgment of the court below is erroneous in the misapprehension of facts and affecting the conclusion

B. The assertion of unfair sentencing

Each sentence of the court below against the Defendants (the fine of KRW 9,00,000, the fine of KRW 1,500,000, and the fine of KRW 2,000) is too unreasonable.

2. Judgment on misconception of facts or misapprehension of legal principles

A. As to the part concerning the deceptionation of examination fees on the face of the core test

(1) Summary of this part of the facts charged

The summary of this part of the facts charged is as follows: “The Defendant conspired with the intent of receiving insurance money by submitting a specification of claim for medical expenses by using the fact that it is difficult to verify the details of treatment when Defendant 1 claims medical expenses for patients being treated at the “○○○○○○○○○○○,” which Defendant 1 operated by the Defendant 1 due to traffic accident, to obtain the insurance money by means of submitting the specification of claim for medical expenses to the automobile damage insurance company, and although the clinical pathians can conduct a heart inspection under the intention or the doctor’s guidance, the above hospital’s nurse conducted a heart inspection on May 3, 2005 with Nonindicted 6, and then on May 12, 2005, the doctor directly conducted a heart inspection or received a doctor’s instructions from each of the above corporations by claiming for an excessive amount of 5,129 won from Hyundai Marine Fire Co., Ltd., Ltd. to 1500, 2005, 2015.”

(2) Judgment of the court below

In principle, medical practice can be performed only by a medical person. Under the law pertaining to medical technicians, etc., it is permitted for a person who has a license for a clinical path, radiation technician, physical therapy technician, occupational technician, dental technician, dental technician, dental technician, or dental technician to engage in medical treatment or medical examination under the direction of a dentist. However, the medical technicians, etc. Act has limited medical technicians system and allow them to engage in part of medical practice within the limited extent. As to the specific area where only a medical person can engage in medical practice, which is less likely to cause harm to human life, body, or public health, the pertinent medical practice should be deemed to have obtained knowledge and experience about the risks, etc. that may cause harm to human life, body, or public health caused by the relevant specific area of medical practice, and should be deemed to have a license granted to a person who is deemed to have the ability to respond to situations, and should be deemed to have limited to medical practice under the direction and supervision of a doctor directly under the direction of a doctor (see Supreme Court Decision 201Do2014, Aug. 23, 2002).

Therefore, in order to be found guilty of this part of the facts charged against the Defendants, it is insufficient to say that the ○○○ Medical Examination was not conducted by a clinical path under the instruction of a doctor, and it is also necessary to prove that the nurse without any specific direction and supervision of Defendant 1, who is a doctor, conducted the heart test without permission. However, according to the testimony of Nonindicted Party 1, etc. by the witness of the party, the prosecutor of the ○○ Medical Examination at the ○○ Medical Center, when Defendant 1, a doctor, issued specific instructions in the medical room, is carried out in the main facts attached to the medical room. In this case, Defendant 1 complies with this order, and it can be recognized that Defendant 1 specifically instructed and supervised the nurse’s inspection act by directly reading the inspection results printed from the device, etc., and this part of the facts charged is not guilty. Nevertheless, the judgment of the court below that found the Defendants guilty of this part of the facts charged, which affected the conclusion of the judgment of the court below.

B. As to the part concerning deceitation of medical guidance fees

(1) Summary of this part of the facts charged

The summary of this part of the facts charged is as follows: “The Defendant conspired with Nonindicted 7, who was treated at the above hospital on April 26, 2005 due to traffic accident, claiming for medical expenses for patients who were treated at the “○○○○○○○○,” which Defendant 1 operated by the Defendant, by using the fact that it is difficult to verify the details of treatment with respect to the medical expenses, and by submitting the particulars of treatment to the automobile damage insurance company with the statement of claim for medical expenses, and the above hospital did not have a pharmacist, and even though the above hospital did not claim for medical expenses, the above hospital’s medical expenses did not have a pharmacist, the above hospital’s pharmacist did not request for medical expenses. However, on the other hand, around April 26, 2005, stated the amount of 22,137 won in false claim for medical expenses from the victim Samsung Fire Fire Marine Insurance Co., Ltd., Ltd., and believed it to be true, the Defendant received the above amount from each of the above Defendant’s insurance companies with the victim Samsung Fire & Marine Insurance Co., etc., including Samsung 17.

(2) Judgment of the court below

However, Article 2 subparag. 12 of the Pharmaceutical Affairs Act provides that "the term "domination map" means providing information, such as the name, directions for use and dosage, efficacy and effect, storage methods, side effects, mutual effects, etc. of drugs; and ② assist buyers in choosing necessary drugs without making diagnostic judgment at the time of selling over-the-counter drugs." However, Article 24(4) of the Pharmaceutical Affairs Act provides that "the term "the pharmacist shall give necessary taking guidance to patients when he prepares drugs." Article 24(5) of the Pharmaceutical Affairs Act provides that "the Minister of Health, Welfare and Family Affairs may take necessary measures so that a pharmacist prepares proper number of prescriptions so that he/she can faithfully perform the guidance on taking drugs under paragraph (4) of the same Article." Article 30(1) of the Pharmaceutical Affairs Act provides that "the date, number of days, preparation of medicines, details of medication guidance, and other matters prescribed by Ordinance of the Ministry of Health, Welfare and Family Affairs are not permitted when he/she prepares drugs at a pharmacy."

However, unlike the general cases of medicine business, in the case of patients, it is exceptionally permitted for doctors to prepare medicines directly (Article 23 (4) 4 of the Pharmaceutical Affairs Act). In such a case, there is a realistic need for doctors to provide guidance on taking medicines to patients. ② In addition, under Article 5 of the "Standards for Motor Vehicle Insurance Medical Fees" which is publicly notified by the Minister of Construction and Transportation pursuant to Article 15 of the Guarantee of Automobile Accident Compensation Act, the scope of medical fees is determined by the "Health Insurance Medical Care Benefit and its relative relative Points", which is publicly notified by the Minister of Health and Welfare, except for several exceptions to the scope of the medical fees recognized. According to the guidelines for the calculation of the medical care benefit and its relative relative value of the above "Health Insurance Benefit and its relative value", in the case of outpatients of the hospital, the medical doctor prescribed by the doctor and the pharmacist of the relevant medical institution, while the pharmacist of the relevant medical institution did not limit the medical fees for preparing and taking medicines to patients, it should be deemed that the medical fees are prescribed by the doctor as well as the medical fees after taking and taking medicines.

Therefore, in order to be found guilty of this part of the facts charged against the Defendants, it is insufficient to say that the above ○○○○○ Medical Center did not have a pharmacist to give the above medical guidance, and it is also insufficient to prove that Defendant 1, a doctor of the above hospital, did not have any medical guidance at all, or claimed the medical guidance fee for the outpatients to the outpatients who are not the inpatientss, and there is no evidence to support this point. Therefore, even though the facts charged against the Defendants constitute a case where there is no proof of crime, the court below found the Defendants guilty. Thus, the above appeal by the Defendants on this point is with merit.

C. As to the part that there was no person who committed the act of defraudation or who did not participate in the crime by accomplices

Comprehensively taking account of the evidence duly adopted and examined by the court below, the above ○○○○○○○○ Medical Center was in office as a doctor, and the number of beds is not much than 26 small and medium-sized hospitals; Nonindicted 1, who was in charge of claiming for motor vehicle insurance medical fees of the above hospital, was aware of the fact that the patient was released at early time, or outing, going out without permission, and does not properly receive treatment such as injection, medication, and physical treatment, etc. due to the patient’s early discharge, outing, outing, and going out without permission; without checking the medical records, such as nursing records, physical treatment records, and radiation ledger, in order to receive insurance money, the above part of the claim for medical fees, which was calculated as stated in the medical records prepared by Defendant 1, who was a doctor, and written the statement of claim for medical fees, and the part of the claim for medical fees, which was submitted by the above Defendant 1, the president, and Defendant 2, the vice president, should not be considered as having been aware of the above circumstances and submitted to the above Defendant 1’s claim for medical fees.

D. As to the violation of the Guarantee of Automobile Accident Compensation Act

(1) Summary of this part of the facts charged

The summary of this part of the facts charged is as follows: “Although the medical institution filed a claim against the insurer for medical fee with the insurer in accordance with the medical records under the Medical Service Act, the Defendants conspired to file a claim for the motor vehicle insurance fee for Nonindicted 7 with the Samsung Fire Marine Insurance Co., Ltd. around April 26, 2005, and filed a false claim for the amount of KRW 31,526, including the medication fee of KRW 24,193, 7,333, different from the medical records under the medical records under the medical records under the Medical Service Act, and filed a false claim for the amount of KRW 31,526, different from the medical records under the attached Table 1, such as the above Samsung Fire Marine Insurance Co., Ltd. from May 12, 2005 to November 25, 2005.”

(2) Judgment of the court below

Article 11(3) of the former Guarantee of Automobile Accident Compensation Act (amended by Act No. 9065, Mar. 28, 2008) provides that “When a medical institution claims an insurer, etc. for motor vehicle insurance medical fees under the provisions of paragraph (2), it shall be claimed in accordance with the medical records provided for in Article 21 of the Medical Service Act.” Article 38(3) of the same Act provides that “A medical institution which, in violation of the provisions of Article 11(3), requests motor vehicle insurance fees different from those of the medical records or prepares false medical records for the purpose of claiming such fees shall be punished by a fine not exceeding 50,00 won.” Article 21(1) of the Medical Service Act provides that “A medical person shall keep the records of medical records, assistance in childbirth, nursing records, and other records concerning medical treatment (hereinafter “medical records, etc.”) and shall record in detail the matters concerning such medical acts and opinions that a doctor has entered in the register of medical examinations and treatment other than those of the patient, regardless of the name of the doctor’s or dentist’s.”

Therefore, even in the case of this case, if the defendants filed a claim different from the contents of the medical examination prepared by the defendant 1, who is a doctor in claiming for motor vehicle insurance medical fees, the defendants can be punished under the former part of Article 38 (3) of the former Guarantee of Automobile Accident Compensation Act. While examining the records of this case, there is no evidence that the defendants filed a claim for motor vehicle insurance medical fees different from the contents of the medical examination or conspired to make a false claim from the beginning, and there is no evidence that the defendant 1 prepared a false medical examination. Thus, this part of the facts charged against the defendants are not guilty. Nevertheless, the court below found the defendants guilty of this part of the facts charged. Thus, the court below erred by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment

E. As to Defendant 1’s fraud against Korea Workers’ Compensation & Welfare Corporation

(1) Summary of this part of the facts charged

The summary of this part of the facts charged is that Defendant 1 was issued to Nonindicted 2, 1, 5, and Nonindicted 2, 1, 2, 1, 3, 1, 5, 1, 3, and 4, 1, 5, 1, 4, 1, 5, 2, 1, 5, 2, 1, 3, 1, 4, 5, 1, 5, 1, 2, 5, 1, 4, 1, 5, 1, 5, 4, 1, 5, 1, 5, 1, 5, 4, 1, 0, 5, 1, 5, 4, 1, 5, 1, 0, 5, 1, 5, 4, 1, 5, 1, 0, 5, 1, 5, 1, 6, 3, 5, and 5, 3, 1,00, 5, 1,2, 5, 3,

(2) Judgment of the court below

Comprehensively taking account of the evidence duly adopted and examined by the lower court and the first instance court, ① Defendant 1 transferred the instant member to another hospital located in Ansan-si, ○○○○ (number 1 omitted), and agreed on the operation of the other hospital as one month with Nonindicted 2 while seeking a suitable transferee, and entered into a business agreement with the above hospital from April 20, 2005 to May 20, 205, with Nonindicted 1’s insurance benefit payment at the above hospital’s expense. ② Defendant 1, on May 1, 2005, came to take over KRW 00,00 in the name of the above hospital’s non-indicted 5, which was located in the name of the above non-indicted 20, which was located in the name of the above non-indicted 20, and then, Defendant 2, who was affiliated with the above medical care benefit account in the name of the non-indicted 3, who was located in the name of the above hospital and the non-indicted 3’s insurance benefit insurance premium insurance company’s name.

However, according to the above facts of recognition, Defendant 1 did not participate in the management of the above hospital, but did not leave the name of the above defendant in the name of the medical institution head of the industrial accident insurance for the convenience of Nonindicted 2 and did not leave the name of the above defendant in the name of the above medical institution head of the industrial accident insurance for the benefit of Nonindicted 3, 4, and 5, it seems highly probable that Defendant 1 participated in the above act of acquiring industrial accident insurance benefits in collusion with the above medical institution. Thus, it is difficult for the court below to find that the above defendant's above statement of opinion, which was offered to the crime of this case, was a false statement of opinion or a false statement of opinion, and thus, it is difficult to find that the court below erred in the misapprehension of the legal principles as to the defendant 1 as a whole, or in the misapprehension of the legal principles as to the defendant 1, since there was no evidence to prove that the above defendant's name, which was offered to the crime of this case, was a false statement of opinion or an industrial accident.

3. Conclusion

Therefore, the judgment of the court below against the defendants who acquitted them as above is bound to be reversed in its entirety, without examining the reasons for the appeal of unfair sentencing in accordance with Article 364(6) of the Criminal Procedure Act, the part of the judgment of the court below against the defendants should be reversed without examining the reasons for appeal of unfair sentencing in accordance with Article 364(6) of the Criminal Procedure Act, and the whole part of the judgment of the court below is reversed, and it is again decided as follows.

Defendant 1: (a) from May 1, 2005, the head of the hospital operating the “○○○○○○○○○” at a child of the U.S. in Gangnam-gu, Seoul; (b) Defendant 2 is the vice president of the above hospital; (c) Defendant 1, when claiming medical expenses for patients who received treatment from the above hospital due to traffic accidents, conspired to obtain insurance proceeds by submitting a false statement claiming medical expenses by submitting it to the motor vehicle damage insurance company, using the fact that it is difficult to confirm the existence of hospitalized treatment, the frequency of radiation photographing, and the frequency of physical treatment

On April 26, 2005, when claiming medical expenses for automobile insurance against Nonindicted 7, who received treatment at the above hospital due to traffic accident, the fact is stated more than 4 times than the recovery of the Eimule, Eimule, Eimule, and Eimule administration used for Nonindicted 7. The fact is stated as if he used 9,389 won in the form of treatment, and is falsely claimed 9,389 won in the form of treatment, and the above amount was remitted from the victim Samsung Marine Insurance Co., Ltd., which is believed to be true, and the above amount was transferred from the victim Samsung Marine Insurance Co., Ltd., Ltd. as stated in the attached Table 1 list of crimes No. 2 and No. 3, from May 12, 2005 to November 25, 2005. The above 10 companies, including Samsung Marine Insurance Co., Ltd., Ltd., claiming medical expenses for traffic accident patients, including Nonindicted 241 victims, such as the above Samsung Fire Insurance Co., Ltd.

1. Each legal statement of the witness of the court below, Nonindicted 1, 8, 9, 10, 11, and 12

1. Each police statement on Nonindicted 1, 7, 8, 9, 10, 11, 13, 14, and 15

1. The police seizure record and the list of seizure;

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

Articles 347(1) and 30(2) of each Criminal Code (to select a fine, inclusive, for each victim)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38(1)2, and Article 50 (Aggravated Punishment for Victims Samsung Fire and Marine Insurance Co., Ltd. with the largest penalty) of each Criminal Code

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

1. Of the facts charged in the instant case, the summary of each charge concerning the fraud by deceitation of each of the examination fees and each of the medical guidance fees against the Defendants is as stated in the above 2-A. (1) and 2-B. (1). For the same reason, each of the facts charged above constitutes a case where there is no proof of a crime, and thus, each of the facts charged should be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act. However, as long as each of the facts charged in the instant case is found guilty of a crime against the victimized companies in relation to each of these comprehensive crimes, the judgment of innocence shall not be rendered separately in the order.

2. Of the facts charged in the instant case, the summary of the facts charged as to the violation of the Guarantee of Automobile Accident Compensation Act against the Defendants is as shown in the above 2. D. (1). On the grounds as seen earlier, each of the facts charged constitutes a case where there is no proof of crime, and thus, the judgment of not guilty under the latter part of Article 325

3. Of the facts charged in the instant case, the summary of the facts charged as to Defendant 1’s fraud against the Korea Workers’ Compensation & Welfare Corporation is as described in the above 2. E. (1). For the same reason, each of the facts charged constitutes a case where there is no proof of crime, and thus, the above facts charged is acquitted pursuant to the latter part of Article 325

[The amount of fraud by insurance company and omission of crime list]

Judges Kim Jong-chul (Presiding Judge)