(영문) 서울행정법원 2017.5.25. 선고 2016구합81604 판결

B. On February 18, 2014, the Plaintiff conducted a medical examination of D, which applied to the instant member, and prescribed 'Roxex' and 'Malibea13, which is a taking medicine for the prevention of Ro virus germs. The instant member, a nurse of the instant member, injected 'Matax' and 'Malixa13' to D, and the term of validity (hereinafter referred to as 'the act of injecting the said Lox') was over, and the term of validity (hereinafter referred to as 'the act of injecting the said Lox') was over.

C. On October 19, 2016, the Defendant rendered a disposition of suspension of qualification for one month based on Article 66(1)1 of the Medical Service Act, Article 32(1)2 of the Enforcement Decree of the Medical Service Act, and Article 4 and [Attachment Table] of the Rules on Administrative Dispositions Concerning Medical Services (hereinafter “instant disposition”) on the ground that “the instant injection to the Plaintiff constitutes a non- moral medical treatment.”

[Reasons for Recognition] Unsatisfy, Entry of Gap evidence 1 (including provisional number), the purport of whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Article 66(1)1 of the Medical Service Act and Article 32(1)2 of the Enforcement Decree of the Medical Service Act should be interpreted as limited to intentional acts of an actor or acts perceived by an actor. However, since the Plaintiff did not know that the term of validity was limited to acts of an actor, the act of injection in this case cannot be deemed as “non- moral diagnosis and treatment” inasmuch as the Plaintiff did not neglect the management of an assistant nurse, but did not know that the term of validity was limited.

2) In full view of the fact that the instant injection occurred due to the loss of an assistant nurse, the Plaintiff recognized the loss of the assistant nurse and told that the Plaintiff would withdraw measures at any time in the event of the occurrence of the problem, and that there was no particular problem against D due to the instant injection, the instant disposition is too heavy.

B. Relevant statutes

It is as shown in the attached Form.

(i) the existence of the reasons for the measure

A) The meaning of the relevant provisions

Article 66 (1) 1 of the Medical Service Act stipulates that one of the grounds for suspension of license is "when a medical person severely damages his/her dignity", and Article 66 (2) stipulates that "the scope of the act under subparagraph 1 is delegated to Presidential Decree, and Article 32 (1) 2 of the Enforcement Decree of the Medical Service Act, which was enacted by delegation, stipulates "the act that a medical person severely damages his/her dignity" as one of "the act that a medical person severely damages his/her dignity".

In this context, the issue is what is the moral treatment of medical personnel. The 'moral treatment' refers to the act of seriously impairing the dignity of medical personnel, which is one of the acts of seriously impairing the dignity of medical personnel. Therefore, the 'an act of seriously impairing the dignity of medical personnel' refers to the act of infringing the dignity of medical personnel as an occupation who has no satisfying behavior for human body and life. Therefore, the 'an act of seriously impairing the dignity of medical personnel' refers to the act of seriously impairing the morality and professional ethics required for medical personnel dealing with life and body, and the 'an act of seriously impairing the public confidence of medical personnel.' Meanwhile, the prior meaning of 'anthodic treatment' refers to not only the act of seriously impairing the dignity of medical personnel, but also the act of neglecting the moral duty of medical personnel as well as the act of performing the duty that is expected to be in accordance with the social norms and norms of medical personnel.

B) In the instant case:

According to Article 18(1) of the Medical Service Act and Article 23(4)5 of the Pharmaceutical Affairs Act, a doctor may directly prepare medicines when he/she receives injection. However, confirming the validity of the medicines kept by a doctor at a medical institution under his/her control and prescribing and administering them to the patient is an act expected to be done by a medical person. The act of having the patient, who is responsible for the life and body of the patient, in turn, receive an excessive medicine without confirming the validity of the medicines, is obvious that the act of having the patient, who is responsible for the life and body of the patient, receive an excessive medicine

Thus, the act of injection of this case constitutes a non- moral medical act without relation to whether the plaintiff had intention to do so, and so long as medical treatment constitutes a non- moral medical act, it does not have to reach the result that affects the life and body of the patient. Thus, even though 'Rota', which attempted to be effective, did not actually cause harmful results to the patient, it cannot be said that the reason for the disposition of this case is affected.

Therefore, we cannot accept this part of the plaintiff's assertion.

2) Whether the discretion is deviates or abused or not

A) Relevant legal principles

Whether a punitive administrative disposition deviates from or abused the scope of discretion in light of social norms shall be determined by comparing and balancing the degree of infringement of public interest and the disadvantages suffered by an individual by objectively examining the content of the offense as the ground for the disposition, the public interest to be achieved by the relevant disposition, and all the circumstances in compliance with such disposition. In such cases, even if the criteria for the punitive administrative disposition are prescribed in the form of Ordinance of the Ministry, it is nothing more than that prescribed by the administrative agency’s internal business affairs rules, and thus, it is not effective to externally tring citizens or courts. The legality of the disposition should be determined not only by the above criteria for disposition but also by the provisions of the relevant Acts and subordinate statutes. Thus, the above criteria for disposition cannot be deemed legitimate merely because they meet the above criteria for disposition. However, unless the above criteria for disposition do not in itself conform with the Constitution or laws, or unless there are reasonable grounds to believe that the sanction administrative disposition in accordance with the above criteria for disposition is significantly unreasonable in light of the content and purport of the relevant Acts and subordinate statutes and regulations, it shall not be determined that the disposition deviates from the discretion or abused discretion (see Supreme Court Decision 207Du.

B) In the instant case:

In full view of the following circumstances revealed in light of the aforementioned facts and the overall purport of the oral argument as seen earlier, it cannot be said that the public interest, such as the protection of the patient’s life and health, establishment of medical order, and securing of a sense of ethics and responsibility of medical personnel, to achieve the instant disposition, is smaller than that of the Plaintiff’s disadvantage, and thus, the instant disposition cannot be deemed as a deviation or abuse of discretionary power.

Therefore, we cannot accept this part of the plaintiff's assertion.

① The instant disposition was conducted within the scope prescribed in Article 66(1)1 of the Medical Service Act, Article 32(1)2 of the Enforcement Decree of the Medical Service Act, and Article 4 and attached Table of the Rules on Administrative Dispositions Relating to Medical Service. It is difficult to find reasonable grounds to recognize that the instant disposition does not conform with the Constitution or Acts by itself, or that the instant disposition is considerably unreasonable in light of the content of the offense constituting the grounds for the relevant disposition, and the content and purport of the relevant statutes.

② Although the Plaintiff’s injection is only one time, in light of the importance of high level of expertise and social status of doctors dealing with the life and health of the patient or medical practice, in relation to medical treatment, the doctor requires a high level of duty of care in relation to medical treatment, and the use of an excessive medicine is likely to cause harm to the life and health of the patient and may cause harm to the health of the patient. Accordingly, it is necessary to strictly regulate non- moral medical treatment, such as the instant injection, in that it might cause harm to the health of the public.

③ Even though the Plaintiff was unaware of the circumstances in which the term of validity of the “Round” in relation to D was too excessive, it is difficult to view that the Defendant did not lower the level of sanctions by taking into account the aforementioned circumstances, inasmuch as the Plaintiff neglected to perform the duty of care required for the doctor.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.