2017No1766 Violation of the Medical Service Act

A (60 - 1), doctor

Prosecutor

Denives (prosecutions) and Choi Young-chul (Trial)

Jeonju District Court Decision 2017 High Court Decision 503 Decided November 30, 2017

June 22, 2018

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 1,00,00.

Defendant who has converted 100,000 won into one day when the above fine has not been paid;

shall be confined in a workhouse.

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

1. Summary of grounds for appeal (misunderstanding of legal principles)

According to the definition of "medical service" as stipulated in Article 3 (1) of the Medical Service Act, it is difficult to view that the acquisition of consideration falls under the requirements for medical service, and it is necessary to determine whether the acquisition of consideration falls under the medical service due to continuous performance and repetition of work. Since the Defendant performed the sama operation at the ○○ Department established by ○○ Department regularly from July 2014 to October 31, 2014, the Defendant is engaged in medical service at the ○○○○ Department established by her own bank, not medical institutions. Nevertheless, the lower court’s judgment that acquitted the Defendant of the facts charged of this case is erroneous in the misapprehension of legal doctrine.

2. Determination

A. Summary of the facts charged

The defendant is an intention to establish an internal department in Jeonju City.

No medical person shall provide medical services without establishing a medical institution under this Act, and he/she shall provide medical services within such medical institution, except in extenuating circumstances.

Nevertheless, the Defendant, from July 5, 2014 to October 31 of the same year, provided medical services by visiting 58 patients regularly from the “○○○ Department, a medical institution established by a doctor B located in Seoul Special Metropolitan City from July 5, 2014 to the day of October 31 of the same year by every week, and performing surgery with 58 patients.

B. The judgment of the court below

In light of the fact that the Medical Service Act separates from the medical practice and the medical practice, and that the Defendant continued to engage in the medical practice for a certain period of time according to his aptitude and abilities, it cannot be viewed that the Defendant was engaged in medical practice with remuneration employed by a medical institution established by another person, and that the head of a medical institution could allow a medical person who is not affiliated with the medical institution to provide medical treatment if necessary to treat the patient of the medical institution, the lower court determined that the Defendant’s refusal to provide medical practice and the outcome of the medical practice should be attributed to the medical institution, and that the Defendant could not be found to have violated Article 33(1) of the Medical Service Act, based on the circumstance that the Defendant violated the aforementioned provision, i.e., “the head of the Seocho-gu Medical Service Act (Evidence No. 2)” and “the head of the medical institution who did not provide medical treatment to the medical institution without any doubt that the Defendant did not have been engaged in the medical practice at a certain time.” However, the lower court determined that the Defendant did not comply with Article 3(1) of the Medical Service Act.

C. Judgment of the court below

(1) Relevant legal principles

Medical practice means the act of preventing or treating a disease by treating, examining, prescribing, administering, or administering an external medicine with experience and function based on medical expertise, and other act that may cause harm to public health and sanitation if performed by a medical person (see Supreme Court Decision 98Do2481, Mar. 26, 199).

Article 3(1) of the Medical Service Act provides that "medical service business conducted by a medical person for the public or a large number of specific people" is "medical service business." In addition, "medical service business is a business by a person who is not a doctor" under Article 5(1) of the Act on Special Measures for the Control of Public Health Crimes." This refers not only to a case where medical service is performed continuously and repeatedly, but also to a case where medical service is performed with a intention to continue medical service repeatedly (see Supreme Court Decision 8Do1896, Jan. 10, 1989).

Meanwhile, Article 33(1) of the Medical Service Act provides that “A medical person shall not establish a medical institution under this Act and shall not provide medical services within such medical institution except in any of the following cases.” Article 33(8) of the same Act provides that “A medical person under paragraph (2) 1 shall not establish and operate two or more medical institutions under any pretext.” Article 39(2) of the same Act provides that “The head of a medical institution may provide medical treatment to a medical person who does not belong to the relevant medical institution, if necessary for the medical treatment of a patient.”

Article 33(1) of the same Act provides that “If a medical institution is not a patient, there is a risk of infection due to a non-sanitary place, and if it is permitted without restriction due to any restriction on its head, facility, or human resources, it is highly probable that a medical institution will find patients for profit, thereby preventing such act and allowing patients to receive appropriate medical treatment.” Article 33(8) of the Medical Service Act provides that “The act of a medical institution to which a doctor can establish and operate is limited to one place within the scope of one medical institution without permission under the former part of Article 33(2) of the same Act.” Article 33(9) of the same Act provides that “The act of a medical institution to which a doctor can establish and operate within the scope of one medical institution shall be considered within the scope of “the act of a medical person to which the medical person belongs” under the former part of Article 33(2) of the same Act provides that “the act of a medical institution shall be considered within the scope of “the act of a medical person who is not permitted to establish and operate the medical institution.”

In addition, even in cases where the head of a medical institution exceptionally provides medical treatment to a medical person who does not belong to the medical institution in question pursuant to Article 39(2) of the Medical Service Act, it is allowed to temporarily or periodically treat the medical institution as an assistant medical person for the medical institution in question, and the "medical person who does not belong to the medical institution in the current year" includes any medical person who has established a clinic-level medical institution. However, the head of a medical institution allows another medical person who has established another medical institution to actually operate or manage the medical institution in question or to conduct medical treatment in the actual leading place of the medical institution in question by having another medical person who has established another medical institution operate more than one medical institution in order to prevent the medical person from directly performing the medical practice, it cannot be allowed because it distorts the purpose of legislation under Article 33(1) of the Medical Service Act, which intends to directly provide

Therefore, in light of the overall provisions and relevant provisions of Article 33(1) of the Medical Service Act and the legislative intent of the Medical Service Act, the determination as to whether a medical person engaged in medical service at a place other than the medical institution established by him/her should be made by comprehensively taking into account not only the relationship between the duty and the duty arising from the pertinent medical practice, but also the relationship between the patient and the patient who lives continuously and repeatedly at a specific time, whether the pertinent medical act was performed by lump sum against the patient, whether the pertinent medical person was performing medical practice at a place where the report on establishment was not made under his/her own name, but also at a very leading position in the medical institution where the report on establishment was not made under his/her own name, whether the medical institution was made a report on establishment of the medical institution or a report on change was made to the competent authority due to his/her service at the pertinent medical institution, and other circumstances surrounding the medical practice

(2) Determination

원심 및 당심이 적법하게 채택 · 조사한 증거들에 의하여 인정할 수 있는 다음과 같은 사실 및 사정들을 앞서 본 법리에 비추어 살펴보면 , 피고인은 자신이 개설한 ✨

It is reasonable to view that the instant hospital established by Ansan, not an internal member, has continuously and repeatedly engaged in medical practice, and the Defendant, without any specific determination as to the necessity of medical treatment in the instant hospital, took part in the instant hospital, and performed medical practice in a qualitative leading location, such as uniformly taking an operation, against patients who live in the hospital during a certain period, and actually engaged in medical practice at the instant hospital. It is not reasonable to deem that the Defendant did not receive any consideration, on the contrary that the Defendant did not receive any other consideration.

Therefore, the judgment of the court below not guilty of the facts charged of this case is erroneous in the misapprehension of legal principles, and the prosecutor's assertion pointing this out is with merit.

(A) In around October 2005, the Defendant established a “Bale House” Council member of the Jeonju City, and around 2009, the Defendant changed the establishment of a medical institution to ○○ Council member, and served as an intention to establish a medical institution by October 31, 2014.

(B) B was discharged from military service on April 25, 2014, and immediately served as a member of the above internal medical center where the Defendant was a joint opener. B, on July 14, 2014, did not have been three months thereafter, filed a report on the establishment of the instant hospital with the head of the Seocho-gu Seoul Metropolitan Government Office on the establishment of the medical institution.

(C) B: (a) anticipated that boom surgery was not performed in the future by the prosecution of this case; and (b) opened 00 billion won of boom surgery in Seoul; (c) as equipment for scoom surgery is very low, I think that scoom surgery was performed around 00 billion won, and I think that scoom was performed by the defendant due to scoom surgery; and (c) I worked for 2 months of work at the inside and outside of the Defendant’s operation where scoom surgery was performed by the Defendant, who was working for 0 months of scoom, and reported several tests using pigs, but the Defendant tried to perform scoom surgery for 0 days, so I would like to help the Defendant make a statement that scoom surgery was opened at the time of Seoul’s request, and therefore, I would like to make it difficult for the Defendant to make a statement that scoom surgery was opened as soon as possible if I would like to do so.

On the other hand, B, at the time of opening the instant hospital at the lower court, did not have any experience in performing the ice surgery for anyone at the time of opening the instant hospital. In addition, B, at the time of opening the instant hospital, stated that “I had no ability to properly perform the ice surgery at the time of opening the ○○○○ Department.”

In full view of the statements made by B and the Defendant, it seems that the Defendant agreed in advance to establish the instant hospital in Gangnam-gu, Seoul, by planning the Ansan hospital in which the ice surgery is deemed to have the ability to compete in the future, and that B was capable of opening the ice surgery with the ability to experience and ability to engage in the ice surgery.

(D) From July 2014 to November 1, 2014, the Defendant started the instant hospital with B, from July 2014, to November 1, 2014, the Defendant collected 58 ice surgery with the instant hospital. In the instant hospital, the ice surgery was conducted only on every week’s demand visit by the Defendant, and on every Saturday. B alone did not have any ice surgery. B did not call for whether the instant hospital performed the ice surgery or, if difficult, on the part of the Defendant, whether the instant hospital performed the surgery (43 to 45 pages of the trial record).

(E) The string surgery is an operation that rashs the inner inner part of the rash by cutting off the rash with a siren form, and the ability is corrected by forming the rathe form. Among them, it is difficult to externally remove the rash, and it is necessary to have the technology fladdled on a high-road road. The Defendant removed each string with a thickness of 01 to 14m thickness of the patient, the core part of which is the patient at the instant hospital, with the highest difficulty among the string days of mast, and with the removal of each string with a thickness of 01 to 00m thickness.

(F) In light of the fact that B did not have experienced in gathering the ice surgery before the establishment of the instant hospital, while the Defendant was capable of performing the ice surgery for a multi-year period of time, the Defendant appears to have been unable to perform the ice surgery solely for patients with up to 58 persons if B did not perform the ice surgery at the instant hospital.

(g) B knew at the court below that if a harsh medical accident occurs during the surgery in which the defendant was present, who is responsible for the question of ‘A', and that there is a similar insurance such as medical compensation deduction at hospital, I tried to deal with it (47 pages of the trial record). B was aware that the defendant is jointly responsible with B in the event of a medical accident due to the surgery conducted by the defendant.

(h) In the course of obtaining a bank loan to raise KRW 300 million among the expenses for opening the instant hospital, the Defendant provided an apartment owned by his/her resident as a physical collateral. Therefore, if B fails to repay the bank loan due to its failure to operate the instant hospital, the Defendant is responsible for the Defendant’s property to secure another’s property. Therefore, the Defendant appears to have been responsible for the business or operation of the instant hospital.

(i) On October 31, 2014, the Defendant reported to the head of the Seocho-gu Seoul Metropolitan Government Office on October 7, 2014 that the joint establishment of the National Assembly members of the National Assembly members of the National Assembly members of the National Assembly members of the National Assembly members of the National Assembly and changed their intention to work for the National Assembly members of the National Assembly members of the National Assembly. On November 7, 2014, the Defendant reported to the head of the Seoul Western-

3. Conclusion

If so, the prosecutor's appeal is with merit, it is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows after the pleading.

【Grounds for another judgment】

Criminal facts

As described in paragraph (1) above.

Summary of Evidence

1. The defendant's oral statement in part of the trial court;

1. The oral statement of the witness B in the original trial

1. C’s statement;

1. Written reply to the inquiry of fact;

1. Notification of details of violations of relevant Acts and subordinate statutes, such as a written accusation, the official gazette of the National Health Insurance Corporation, and the Medical Service Act;

(B) The notice of the certificate of report on the establishment of a medical clinic and the list of applicants for inside and outside medical care.

1. Each investigation report (the No. 17, 18, 26, 30, 31 of the evidence list);

Application of Statutes

1. Relevant Articles of criminal facts;

Articles 90 and 33, 11, of the former Medical Service Act (Amended by Act No. 14438, Dec. 20, 2016) (Amended by Act No. 14438, Dec. 20, 201)

Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

The defendant's act is not subject to punishment pursuant to Article 39 (2) of the Medical Service Act, which is an exception under Article 33 (1) 5 of the Medical Service Act, or is a justifiable act that does not violate social rules within the scope permitted by social norms.

2. Determination

As examined in the above 2. C. (2), the Defendant: (a) recognized that the instant hospital was actually engaged in medical services; and the Defendant, from July 5, 2014 to October 31, 201 of the same year, provided medical treatment at a rate to patients who wish to conduct ice surgery by visiting the instant hospital on a daily basis and regularly visiting the instant hospital from July 31, 2014; and (b) performed ice surgery; (c) therefore, it cannot be deemed that the instant hospital was permitted pursuant to Article 39(2) of the Medical Service Act (see Supreme Court Decision 2010Du8959, supra).

Furthermore, in light of the frequency of the massage surgery performed by the Defendant at the instant hospital, the period during which the Defendant performed medical practice, the circumstances leading up to such practice, etc., it cannot be deemed that the Defendant’s act of running medical services at the instant hospital, which was not opened, constitutes an act permissible in light of social norms, and thus does not constitute a justifiable act.

Therefore, the defendant and defense counsel's above assertion is not accepted.

Reasons for sentencing

The crime of this case is a case where the defendant provided medical services by regularly visiting the hospital of this case, which is a medical institution established by B, by conducting the surgery of 58 patients.

However, considering the fact that the defendant is the primary offender, and the period of the crime in this case is not long to about three months, etc. favorable to the defendant, the circumstances should be considered, and the various sentencing conditions specified in the arguments in this case, such as the defendant's age, character and conduct, the virtual environment, and the circumstances after the crime, shall be comprehensively considered, and the punishment shall be determined as ordered.

Judges Park fixed-scale

Judges Hwang Young-ju

Judges Kim Jong-ju