(a) Whether a doctor is permitted under the Narcotics Act to administer narcotics to himself/herself for the purpose of treating a disease;

(b) A case which recognized that the use of narcotics for medical purposes is in need of general use for the treatment of a disease for which the defendant who is a medical doctor suffers, and that the use of narcotics for medical purposes is deemed reasonable in light of the quantity, frequency, period, etc. of administered narcotics;

A. According to Article 3, subparagraph 10 of the Narcotics Act, which is a definition provision for a narcotics handler, "a person who administers narcotics for the purpose of medical treatment for human beings", the subject matter of the medication is not limited to others. If there is a purpose of the treatment, there is no reasonable reason not to prohibit the administration of narcotics to himself/herself, so a doctor is allowed under the Narcotics Act to administer narcotics to himself/herself for the purpose of treatment of disease.

Article 3 subparag. 10, Article 5(1), Article 36 of the Narcotics Act, Article 20 of the Criminal Act

Defendant

Defendant

Busan District Court Decision 92Na305 delivered on September 1, 1992

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 500,000.

When the above fine is not paid, the defendant shall be confined in a workhouse for the period calculated by converting 10,000 won into one day.

The twenty-five days of detention days before the sentence of the lower judgment shall be included in the period of detention in the workhouse.

In order to order the provisional payment of an amount equivalent to the above fine.

Of the facts charged in this case, the violation of the Narcotics Act is acquitted.

1. Summary of grounds for appeal;

(a) First ground for appeal by the defendant;

The Defendant, as indicated in the facts charged in the instant case, administered a petidine and its first class blin or hin to his own body over 27 times. However, the Defendant, as a medical practitioner dealing with narcotics, administered the medication for the purpose of treatment to alleviate severe pains that are symptoms of extracting infection to himself, who is a chronic dypitis patient, and as such, administered the narcotics legitimately delivered by the narcotics manager in accordance with the procedures for the use of narcotics prescribed in the Narcotics Act, rather than administering the blishing drugs. Thus, the process of medication is legitimate.

Therefore, although the Defendant’s act of medication of the instant narcotics constitutes the use of the narcotics for the purpose of medical treatment by a doctor who is engaged in the medical treatment at a medical institution, it cannot be deemed that he used the narcotics not in accordance with the provisions of the Narcotics Act, the lower court found the Defendant guilty of violating the Narcotics Act among the facts charged in the instant case. In so doing, the lower court erred by misapprehending the legal doctrine on the

B. Second ground for appeal

In light of the circumstances leading up to the crime of this case, the status of the defendant's intention, and the situation where the license for intention will be revoked when the defendant is sentenced to imprisonment without prison labor or heavier punishment, etc., the original judgment against the defendant is too unreasonable.

2. Determination on the grounds for appeal

A. Determination on the first ground for appeal

(1) Relevant provisions of the Narcotics Act and issues of this case

A medical practitioner dealing with narcotics under the Narcotics Act means that “a person who is a medical doctor, dentist or veterinarian engaged in the medical service and who, for the purpose of medical treatment, administers or delivers narcotics for the purpose of medical treatment to a person or a person who issues a prescription stating the narcotics” (Article 3 subparag. 10 of the Narcotics Act), a person dealing with narcotics is restricted from handling narcotics in order to prevent acts (the possession, possession, control, import, manufacture, preparation, subdivide, subdivide, trade, assist in the trade of, give or receive, use for academic research, issuance of a prescription stating the narcotics, or preparation of the extra-narcotics drugs) provided for in the main sentence of Article 4 of the Narcotics Act for any purpose other than his/her duties (Article 5(1) of the same Act). Any person who violates the provisions of the Narcotics Act shall not be punished (Article 6 subparag. 10 of the same Act).

However, first of all, the issue is whether a doctor who is a narcotics handler is permitted under the Narcotics Act to administer narcotics to himself/herself for the treatment of his/her own disease, or whether it is permitted to administer narcotics only for the treatment of another person's disease. However, according to Article 3, subparagraph 10 of the Narcotics Act, which is the definition of a narcotics handler, it is not limited to the subjects of medication by stipulating "the person who administers narcotics for the purpose of medical treatment" as "the person who administers the narcotics for the purpose of medical treatment". If there is a purpose of medical treatment, it is hard to say that a doctor who is a narcotics handler is allowed to administer narcotics to his/her own person in that there is no reasonable reason to prohibit the administration of narcotics for him/her.

In the end, the issue of this case is what is the criteria for determining whether the medical personnel handling narcotics voluntarily administers narcotics for the purpose of treatment is permitted under the Narcotics Act, and what is the issue of whether the Defendant’s instant narcotics medication can be viewed as being administered for the purpose of treatment.

Therefore, this paper will first examine the circumstances and purpose of treatment of the Defendant, focusing on the facts charged in the instant case.

(2) Facts

Compared with the records, the following facts can be acknowledged if the evidence adopted by the court below, the testimony of the witness at the trial room, and the written appraisal of the preparation of expert witness's attitude:

From 1987, the Defendant, as a medical specialist outside the ordinary world, was suffering from diseases suspected as dump infection. From 1987, in order to alleviate severe pain symptoms caused by dump infection, the Defendant himself/herself has administered dumpidine by means of surgery, etc., and the Defendant was willing to take up the above dump infection by means of surgery, etc., and was hospitalized in the Japanese University from 19 April 25, 198 to 28 of the same month, but was determined to have an opportunity for treatment of the dump infection after being hospitalized in the Japanese University Hospital No. 19 to 19 pump infection. From 14 June 14, 1989, the Defendant was given an opportunity for treatment of the dump infection after being judged to have been issued at the Busan University Hospital No. 199 to 19 to 19 to 19 to 19 to 19 to 19 to 14 to 19 to 1 to 1 to 1 to 1 to 2 to 1 to me.

Since then, the defendant delayed fundamental diagnosis and treatment of dypitis. On March 22, 192, the defendant was administered in the same hospital, etc. (However, on the one hand, the defendant issued a prescription for hypidine or fypidine or fypls from the dypoid, a doctor working in the same hospital nine times during the period from that day to the 30th day of the same month, such as the statements in the table No. 19 to No. 27 of the table No. 1944, the defendant was finally diagnosed with chronic dypitis and dypheric hyposis, etc., and the defendant was detained on May 6, 192 after being charged with the instant case.

(3) Determination on the purpose of medical treatment

Whether or not the defendant used narcotics for the purpose of medical treatment should be determined based on whether or not there is a reasonableness in light of the medical science, such as the quantity of the administered narcotics, the frequency of the administered narcotics, the administration period, etc.

First of all, according to the appraisal report of the preparation of appraiser dispatch and the statement of the copy of the medical school which is bound in the trial records, one of the specific symptoms of crypitis and crypin species suffering by the defendant is serious pain that frequently repeats, and the primary medicine that is used to remove the pain is a crypine and the most effective medicine is recognized. In light of the above symptoms of crypitis and the treatment method of its pain, it is recognized that the defendant has a need to administer the above narcotics in medical science.

In addition, the defendant's act of administering narcotics over 27 times is divided into two forms where he administered the narcotics by issuing a prescription for narcotics and where he administered the narcotics by issuing a prescription for narcotics. First of all, there is no evidence to deem that the defendant administered the narcotics by addiction to narcotics, or used the narcotics in order to alleviate the symptoms of narcotics addiction. In addition, the defendant's act of using the narcotics for the purpose of treatment of the disease of this case is reasonable since the defendant's medical history and symptoms, crypitis and cryposis are given, the daily doctor issued a prescription for narcotics, and the daily doctor issued the prescription for narcotics to the nurse at the hospital where the prescription is open to the public, and the quantity of the administered narcotics does not go beyond the scope of treatment. Although the period of administering the narcotics is somewhat long time, the defendant seems to have been given the opportunity for accurate diagnosis and treatment, the defendant's act of using the narcotics of this case is also deemed to have been used for the purpose of treatment of the disease of this case.

B. Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the judgment below is again decided as follows, since the defendant's appeal without any further determination on the issue of unfair sentencing.

The criminal facts of violation of the Pharmaceutical Affairs Act and the summary of evidence of the defendant's violation of the Pharmaceutical Affairs Act recognized as a party member are as shown in each corresponding column of the judgment of the court below.

1. Article applicable to criminal facts;

inclusive, Articles 78, 74(1)1, and 21(1) of the former Pharmaceutical Affairs Act (amended by Act No. 4486 of Dec. 31, 191)

2. Concurrent crimes:

The latter part of Article 37 and Article 39(1) of the Criminal Act

3. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

4. Calculation of days of detention;

Article 57 of the Criminal Act

5. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Of the facts charged of this case, the summary of the violation of the Narcotics Act is as follows: "The defendant habitually changed the name of the hospital to the hospital located (trade name omitted) in the Nam-gu Busan Metropolitan Government Hospital (name omitted) (No. 4, 191) (the hospital name was changed to the hospital) on January 14, 191, the non-indicted, the pharmacy employees of the same hospital, had the non-indicted, who were the employees of the pharmacy of the same hospital, beer for the defendant's arms during 27 times from the time from March 30, 192 until March 30, 1992, and had the non-indicted at the general outside of the above hospital, such as in the table of the attached Form No. 27 times from the time from March 30, 1992, to the outside of the hospital, so that the non-indicted is not allowed to administer narcotics for the purpose of medical treatment for the purpose of others, but to use the narcotics for himself."

However, as mentioned above, the above facts charged constitute a case where there is no proof of facts constituting the crime, and thus, it is so decided as per Disposition with the decision of not guilty as to the violation of the Narcotics Act under the latter part of Article 325.

Judges Kim Jong-si (Presiding Judge)