Plaintiff (Attorney Lee Han-soo, Counsel for the plaintiff-appellant)

The Minister of Health and Welfare

November 26, 2010

Seoul Administrative Court Decision 2010Guhap12989 decided July 22, 2010

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. The plaintiff's purport of claim

The defendant's disposition of suspending the qualification of doctor on March 8, 2010 against the plaintiff shall be revoked on March 8, 2010.

2. The defendant's purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Details of the disposition;

A. The Plaintiff, as a doctor, served as a vice president from September 1, 2001 to ○○ Masan Foreign Service Corps.

B. From September 5, 2007 to September 10, 2007, the Plaintiff was working for a hospital without Nonparty 1 as the president of the ○○○ Unauthorized Division who was traveling abroad. On September 6, 2007, the Plaintiff provided four medical treatment for traffic accident patients, including Nonparty 2, 3, 4, and 5. However, each medical certificate for four persons, including Nonparty 2, 3, 4, and 5 (hereinafter “each of the instant medical certificates”) was issued by Nonparty 2, 3, 4, and 5, who is not the Plaintiff, as the title holder.

C. On March 8, 2010, the Defendant rendered a disposition suspending the Plaintiff’s medical license for one month from May 3, 2010 to June 17, 2010 by applying the provisions of Article 66(1) of the Medical Service Act and Article 4 [Attachment Table] of the Regulations on Administrative Measures Concerning Medical Services, on the ground that the Plaintiff prepared a false medical certificate in violation of Article 66(1)3 of the Medical Service Act (hereinafter “instant disposition”).

[Grounds for Recognition: Evidence No. 1, Evidence No. 1, Evidence No. 1 and No. 2, and the purport of the whole pleadings]

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Article 66(1)3 of the Medical Service Act provides that even if a medical doctor issues a medical certificate without directly performing a medical examination or directly performing a medical examination, it is based on the premise that a medical certificate stating false details is issued. Since each of the instant medical certificates was issued in accordance with the contents of the diagnosis, it is impermissible to apply to the instant case.

Doshe tried to directly examine patients, issue a medical certificate in accordance with the contents of the medical certificate, and printed out the medical certificate in the name of the president Nonparty 1 stored in the waterway computer and issued it to the Plaintiff. Thus, it is unreasonable to impose liability for the issuance of each of the medical certificates in this case on the Plaintiff.

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Determination

Considering the following points, Article 66(1)3 of the Medical Service Act applies only to cases where a physician issues a diagnosis without directly diagnosing a patient, or where a medical doctor directly examines a patient, and then issues a false diagnosis, and a doctor does not directly examine a patient, but does not apply to cases where a medical doctor issues a written diagnosis in the name of another doctor, other than himself/herself. The Plaintiff prepared and issued each of the instant medical examinations according to the details of the medical examination. As such, Article 66(1)3 of the Medical Service Act cannot be applied to the instant case. Accordingly, the instant disposition based on the premise that Article 66(1)3 of the Medical Service Act is applicable.

(1) Article 17(1) of the Medical Service Act provides that “A doctor, dentist, or oriental medical doctor, other than a doctor, dentist, or oriental medical doctor, who directly engaged in the business of medical treatment and directly conducted a medical examination or conducted a postmortem examination, shall not prepare and deliver a medical certificate, etc. to the patient.” As such, a doctor, dentist, or oriental medical doctor, who directly conducted a medical examination or conducted a postmortem examination, shall prepare and deliver a medical certificate, etc. to the patient according to the contents of the medical examination, deeming that there is no provision applicable to the case where a medical certificate is prepared and issued under the name of another doctor, other than the doctor himself/herself. There is no separate prohibition

Article 66(1)3 of the Medical Service Act provides that “When a medical doctor prepares and issues a false medical certificate, etc. under Article 17(1) and (2) or prepares a false medical record, etc. under Article 22(1).” This is similar to the crime of preparing a false medical certificate and its contents and form prescribed in Article 233 of the Criminal Act. Meanwhile, the crime of preparing a false medical certificate under the Criminal Act is established when a doctor enters the contents of the medical certificate contrary to the truth in the medical certificate with the subjective awareness that the content is false. Each of the instant medical certificates is not stated in the medical records contrary to the truth.

Article 66 (1) 3 of the Medical Service Act is applicable to cases where the Plaintiff prepared and issued each of the instant diagnosis under the subjective perception that the name of the president was stolen without the consent of Nonparty 1, and then the crime of forging private document is established under the Criminal Act due to fraudulent use of the name. In this case, there is no subjective perception that the Plaintiff stolen the name of the president Nonparty 1. In addition, if the Plaintiff prepared and issued each of the instant diagnosis under the name of the president Nonparty 1 while the president consented to the use of the name, it would be a matter whether the sanctions against the president Nonparty 1 pursuant to Article 66 (1) 3 of the Medical Service Act may be imposed against the president Nonparty 1 who consented to the use of the name. In this case, it does not seem that the president Nonparty 1 consented

[On the other hand, the plaintiff directly diagnosed the patient and issued the medical certificate of this case in the name of the non-party 1 of the president traveling abroad is as seen earlier. In full view of the overall purport of the pleadings, each of the instant medical certificates was prepared according to the plaintiff's medical certificate and there was no false statement in the statement. The fact that the plaintiff printed out the medical certificate in the name of the non-party 1 of the president stored in the actual computer and issued the medical certificate in the name of the director non-party 1 of the plaintiff. The medical certificate of this case was issued before and after the issuance of each of the instant medical certificates is acknowledged, and all of the medical certificates were issued in the name of the plaintiff. Since each of the instant medical certificates was issued before and after the issuance of each of the instant medical certificates, it is improper to impose liability on the plaintiff for the issuance of each of the instant medical certificates.

3. Conclusion

If so, the plaintiff's claim is reasonable, the disposition of this case shall be revoked. The judgment of the court of first instance is just, and the defendant's appeal is dismissed. It is so decided as per Disposition.

[Attachment Form 5]

Judges Kim Byung-chul (Presiding Judge)