Defendant

Defendant

Exemplarys (prosecutions) and Efficials (public trials)

Law Firm Rate, Attorney Park Jong-soo

Seoul Western District Court Decision 2012Gohap745 Decided September 26, 2013

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of the facts charged

의료업에 종사하고 직접 진찰하거나 검안한 의사가 아니면 처방전을 작성하여 환자에게 교부하여서는 아니 된다. 그럼에도 피고인은 2011. 2. 8.경 피고인이 운영하는 서울 서대문구 (주소 생략) 2층에 있는 ‘○○○의원’에서 공소외 1(변경 전 성명 : △△△)을 직접 진찰하지 않고, 환자로 알게 된 공소외 2의 부탁을 받아 공소외 1에게 플루틴캡슐 등 전문의약품을 처방한 처방전을 작성하여 공소외 2에게 교부하였다.

2. Summary of grounds for appeal;

On February 8, 2011, the Defendant: (a) requested Nonindicted 2 to issue a prescription to Nonindicted 1; (b) made a telephone call with Nonindicted 2’s cell phone to verify various matters necessary for the issuance of a prescription; and (c) issued the prescription of this case; and (d) issued the prescription of this case; (b) the Defendant did not directly regulate only the subject of the diagnosis; and (c) did not regulate the method of the medical examination; and (d) the Defendant did not directly conduct such a medical examination; and (d) did not directly conduct such a medical examination, the lower court found the Defendant guilty,

3. Determination

A. Relevant legal principles

Article 17(1) of the Medical Service Act provides that “A doctor engaged in the business of medical treatment, who directly conducted a medical examination, or who prepared a prescription, etc. shall not be issued to the patient.” This is merely a provision prohibiting a doctor from issuing a prescription without a medical examination by himself/herself, not a general provision prohibiting the issuance of a prescription without a face-to-face medical examination or without a sufficient medical examination. Therefore, in light of the principle of no crime without the law, in particular, the mere fact that a telephone medical examination was conducted under the principle of no analogical interpretation, cannot be viewed as “the self-examination” or “direct medical examination” (see Supreme Court Decision 2010Do1388, Apr. 11, 2013).

B. Determination as to whether the Defendant did not directly request the phone medical examination of Nonindicted Party 1

Examining the following circumstances acknowledged by the lower court and the first instance court’s duly adopted and examined evidence, the Defendant did not examine Nonindicted 1. However, Nonindicted 2 visited Nonindicted 1’s hospital on February 8, 201, and asked Nonindicted 1 to prescribe and call Nonindicted 1’s medicine at the remote distance, Nonindicted 1’s name, resident registration number, existing disease, health conditions, and symptoms to the effect that Nonindicted 1’s age was recorded and issued, and Nonindicted 2 stated that Nonindicted 1’s prescription was not issued before Nonindicted 1’s phone call, and that Nonindicted 1’s phone call was not issued, and that Nonindicted 1’s phone call was not issued, and that Nonindicted 2 provided a prescription to the effect that Nonindicted 1 and Nonindicted 2’s phone call was not issued, and that Nonindicted 1 and Nonindicted 2’s phone call was not issued, and that Nonindicted 1 and Nonindicted 3’s phone call were not issued before Nonindicted 1’s phone call was issued.

C. Sub-committee

Therefore, even though the facts charged in this case should be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act because there is no proof of crime, the court below erred by misapprehending the legal principles or misunderstanding the facts.

4. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the facts charged of this case is as stated in Paragraph (1) of the judgment, and this constitutes a case where there is no proof of facts constituting a crime as stated in Paragraph (3) of the judgment, and thus, it is decided as per Disposition with the decision of not guilty under the latter part of Article 3

Judges Osung U.S. (Presiding Judge)