Defendant

Prosecutor

Kim Yong-ju

Law Firm Bapus, Attorney Lee E-ri

Seoul Central District Court Decision 2003 Godan933 Delivered on February 16, 2006

The guilty portion of the judgment of the court below shall be reversed.

Defendant shall be punished by a fine of KRW 3,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

The provisional payment of the amount equivalent to the above fine shall be ordered.

The appeal on the violation of the Act on Special Measures for the Control of Public Health Crimes (Unlawful Medical Service Providers) by a prosecutor is dismissed.

1. Summary of each of the facts charged in this case

The defendant is a herb doctor who operated ○○ Council member.

A. Although a person, other than an oriental medical doctor, is unable to engage in oriental medical services for commercial purposes, he/she is in collusion with Nonindicted 1, a non-licensed medical practitioner. From September 2001 to September 14, 2002, at the ○○○○○○○○○ located in Gangnam-gu Seoul (hereinafter referred to as “1 omitted), Nonindicted 1 had Nonindicted 677 persons, who were terminal cancer patients, receive medical treatment for the purpose of treating the disease by improving the rhythm function of the rhym line, for the purpose of treating the disease, using the red oil on the pains and the successful bid level, etc., with the apparatus made of the body of the body of the person who is the terminal cancer patients, dump the skin with the apparatus made of the body of the person who was flaped with the body of the person who was flaped with the vibration, rhyth of the rhyth of the rhyth of the rhym line, and treating the patient.

B. Unless a pharmacist or herb pharmacist is allowed to prepare medicines, he/she shall be allowed to prepare medicines at a pharmacy or a dispensary of a medical institution, and herb doctor shall prepare medicines and herb medication directly for his/her own treatment [Article 3 of the Addenda of the Pharmaceutical Affairs Act (amended by Act No. 471, Jan. 7, 1994)], in collusion with Non-Party 2 who is not eligible for a pharmacist, herb pharmacist, or oriental medicine doctor, from March 4, 2002 to September 30 of the same year, he/she shall be equipped with three warehouses in the defendant's house room located in Seongdong-gu Seoul Metropolitan Government (hereinafter referred to as the "2 omitted) in a size of 15 square meters in the underground space of the defendant's house, with three warehouses, eight medicinal herbss, eight sealed packaging machines, two boxes in sealed packaging machines, etc., and subparagraph 6 of Article 2600,000 won in aggregate, which he/she receives from Non-Party 2, a chronic dried patient, pursuant to the prescription sent by the defendant

C. From August 2002 to October 17 of the same year, the Internet homepage (www. ○○○○○.com) published the content of “○○○○○ Medical Center that realizes the world’s highest level of terminal cancer treatment efficiency,” and “First of all, the terminal cancer patients enter a treatment room, i.e., a special treatment method,” and “the terminal cancer patient who treats cancer patients,” and the terminal cancer patients are suffering from a large sum of mouths and flow out from the site.. In addition, the flow of the oil flow from around August 200 to around October 17 of the same year, by inserting the content of “the explanation of the Defendant’s president,” thereby advertising about the medical service.

2. The judgment of the court below

A. Part of conviction

Of the facts charged in the instant case, the lower court convicted the Defendant on the charge of violating the Pharmaceutical Affairs Act that the Defendant conspired with Nonindicted 2 in preparing medicines at a place other than a pharmacy or a dispensary of a medical institution, and that the Defendant posted “○○ Council member that realizes the global highest level of terminal cancer treatment efficiency” through the Internet homepage of ○○ Council member, thereby making an excessive advertisement on the medical service.

(b) Parts not guilty;

(1) Violation of the Act on Special Measures for the Control of Public Health Crimes (Unlawful Medical Service Providers)

As to this point, the court below acquitted the non-indicted 1's act of this case conducted under the direction of the defendant, a herb doctor, on the ground that there is no evidence to conclude that the act of this case committed by the non-indicted 1, who is a herb doctor, has reached a certain disease treatment beyond the role of simply relaxing patients' pain and ensuring mental stability,

(2) Violation of the Pharmaceutical Affairs Act by in collusion with Non-Party 2, an unqualified person, to engage in the preparation of herb drugs

As to this point, the lower court found the Defendant not guilty on the ground that: (a) Nonindicted 2, as an employee of the said Korean medical clinic, only carried out herb drugs by mixing them with a certain amount of water, etc. and then delivered them to the said Korean medical clinic after mixing them with the weight of the herb material as stated in the Defendant’s prescription; and (b) Nonindicted 2’s above act merely carried out the herb drugs according to the Defendant’s prescription without recognizing that the aforementioned act was for the treatment of a specific disease specified by the specific person under his/her responsibility; (c) it is reasonable to evaluate that the Defendant, who is a herb doctor, was to prepare herb drugs; and (d) there is no other evidence to deem that the above act by Nonindicted 2 was

(3) Violation of the Medical Service Act due to some exaggerated advertisements

As to this point, the lower court acquitted the Defendant on the ground that the part “○○ oriental medical hospital that treats cancer patients under the Special Treatment Act, i.e., the Medical Treatment Act,” does not mean that the Defendant has treated cancer patients by actually using the pharmacological therapy, and that “in case of entering a treatment room, terminal cancer patients are drilling a large part of their body and flown away from the place.” The lower court found the Defendant not guilty on the ground that there is no evidence to determine whether the content of the part “the explanation of the Defendant’s president” was actually during the course of treatment, or that there is no evidence to determine whether the fact was exaggeratedly expressed.

3. Summary of grounds for appeal by a prosecutor;

A. misunderstanding of facts and misapprehension of legal principles (not guilty part)

(1) Violation of the Act on Special Measures for the Control of Public Health Crimes (Unlawful Medical Service Providers)

In light of the fact that the medical procedure that the defendant had Nonindicted Party 1 conduct the procedure is likely to cause an injury to the skin of the patient, and that there is a risk of additional injury, such as dynasty, etc., at the Korean Medical Association, the medical procedure law is regarded as a comprehensive oriental medical act in accordance with the Korean Medical Procedure Classification Table, and thus, the above excessive medicine law constitutes a medical act under the Act on Special Measures for the Control of Public Health Crimes, and thus constitutes a medical act under the Act on Special Measures for the Control of Public Health Crimes. However, the court below acquitted the defendant on this point. In so doing, the court below erred by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment.

(2) Violation of the Pharmaceutical Affairs Act by in collusion with Non-Party 2, an unqualified person, to engage in the preparation of herb drugs

Nonindicted 2, after receiving a prescription from the Defendant, prepared herb drugs by mixing them according to the above prescription without undergoing the Defendant’s management and supervision from the Defendant’s house and without undergoing the Defendant’s management and supervision. Thus, it is clear that an unqualified person prepared herb drugs. However, the lower court rendered a not guilty verdict on this point on the ground that Nonindicted 2 merely prepares herb drugs in accordance with the Defendant’s prescription without recognizing that Nonindicted 2 would have performed a specific act for the treatment of the disease of a specific person under his/her responsibility, and the Defendant, a herb doctor, who is an oriental medicine doctor, can be evaluated as having prepared herb drugs. In so doing,

(3) The portion of acquittal in violation of the Medical Service Act due to the exaggerated advertisement

This part of the advertisement is sufficient to mislead cancer patients as if they can completely recover from cancer due to the pharmacological therapy, and it was excessively exaggerated to the fact that the advertisement was left out of body due to the effect of the medication. However, the court below rendered a not guilty verdict on this part. In so doing, the court below erred by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment.

B. Unreasonable sentencing

In light of various circumstances, such as the fact that there was a history of punishment for the same suspension of indictment and suspension of sentence against the Defendant, and that the Defendant, even an oriental medical doctor who may have a significant influence on the health of the general public, committed each of the instant crimes in violation of social obligations, and that the nature of such crimes is poor, etc., the lower court’s punishment (one million won of fine) is too uneasible and unfair

4. Judgment on the misunderstanding of facts and misapprehension of legal principles (not guilty part)

A. Violation of the Act on Special Measures for the Control of Public Health Crimes (illegal medical service providers);

(1) The term "medical act" under Article 25 of the Medical Service Act refers to the act of preventing or treating a disease caused by diagnosis, autopsy, prescription, medication, or surgical surgery with the 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 en banc Decision 2004Do3405, Oct. 28, 2004, etc.). The concept of the medical act can be changed with the development of medicine and the development of society, etc. Therefore, the contents of the medical act should be determined in light of social norms, considering the purpose of the Medical Service Act, i.e., the medical act to allow a person who is not a medical doctor with medical expertise to perform a certain procedure, thereby causing harm to human life and body or risks to public health and sanitation (see Supreme Court Decision 74Do114, Nov. 26, 1974, etc.).

(2) According to each statement at the investigation agency and court of the defendant and the non-indicted 1, the non-indicted 1, who was employed by the defendant and found only one member of the defendant, performed an act of breaking the skin with the scarcity with the apparatus, such as the water scarf or the scarf, etc. (hereinafter "the act of this case"), and the patient who found the plaintiff's oriental medical member, found the plaintiff's oriental medical member to receive medical treatment of this case from time to time, and paid 20,000 won or 30,000 won per time in return for such procedure.

(3) According to the records of this case, it is difficult to see that the act of this case constitutes “medical treatment” stipulated in Article 25 of the Medical Service Act, and that the act of this case can be deemed as an act of oriental medical treatment belonging to the 3201.55 Mesical method under the Korean Standard Medical Practice Classification, 3102 Mesical method, 4505 Mesical method, and 4510 Mesical method. However, it is difficult to see that the act of this case is an incidental act of oriental medical treatment to the patient’s life or body, and it is difficult to see that the act of this case is likely to cause harm to the patient’s life or body as an incidental act of oriental medical treatment. However, it is difficult to see that the act of this case is an act of this case’s Mesical act of treating patients by using the Mesical tool and the act of this case’s Mesical method as an incidental act of treatment to the patient’s body.

(4) Therefore, since the instant procedure cannot be deemed as “medical act” under Article 25 of the Medical Service Act, there is no need to further examine whether the Defendant conspired with Nonindicted Party 1 to conduct the instant procedure. This part of the Prosecutor’s assertion is without merit.

B. Violation of the Pharmaceutical Affairs Act, which committed an act of preparing herb drugs in collusion with Nonindicted 2, an unqualified person

(1) "Preparation of medicine" under Article 21 (1) of the Pharmaceutical Affairs Act refers to the preparation of medicine for the purpose of treating or preventing a specific disease of a specific person in accordance with a specific usage by mixing two or more drugs or sharing one medicine into a certain quantity according to a specific prescription (Article 2 (15) of the Pharmaceutical Affairs Act). In cases where medicinal herbs are recognized as being used for the purpose of medicine, or where medicinal herbs are claimed as having efficacy, it constitutes "drugs" under the Pharmaceutical Affairs Act (see Supreme Court Decision 95Do1635 delivered on February 9, 196). The preparation of medicine for a specific disease of a specific person is generally included in the concept of preparation of medicine (see Supreme Court Decision 91Do2348 delivered on December 10, 191).

(2) According to whether Non-Indicted 2 committed a preparation under the Pharmaceutical Affairs Act, the Defendant’s statement at this court, the prosecutor’s office against Non-Indicted 2, and each protocol of interrogation of the police officers, it is acknowledged that Non-Indicted 2 was employed by the Defendant and regularly visited the Defendant’s Council member to receive the benefits of KRW 900,000 to KRW 120,000 per month, and then copied the Defendant’s prescription, and then, after taking measurements with the Defendant’s house by mixing the herb drugs with the herb drugs, it is recognized that Non-Indicted 2 was able to see the Defendant’s house to mix the herb drugs and s

(3) According to the above facts of recognition, it is reasonable to view that the above act by Nonindicted 2 was made by mixing two or more drugs according to the prescription prepared by the defendant, and it is a preparation of medicine under the Pharmaceutical Affairs Act, since it is reasonable to see that the act by Nonindicted 2 was a preparation of medicine by the patient who visited one member of the defendant. Therefore, the prosecutor's allegation in this part of the

(c) Part of innocence among the violations of the Medical Service Act due to an exaggerated advertisement;

(1) First of all, the part of the facts charged that the lower court acquitted the Defendant on the charge of “○○ oriental medical hospital that treats cancer patients under the Special Treatment Act,” and according to the records of this case, it can be acknowledged that the Defendant conducted a procedure to injecting the herb amount directly developed by it against cancer patients to injecting them. According to the above facts, insofar as the Defendant treated cancer patients under the Medical Treatment Act, regardless of the treatment effect, this part of the advertisement cannot be viewed as an exaggerated advertisement, so the Prosecutor’s allegation in this part is without merit.

(2) Next, we examine the part of the facts charged that "If a terminal cancer patient enters the treatment room, he has a large hole of body and flow out from the place." As to the part of the facts charged that "I will come out of the body due to the effect of a pharmacological effect," it is insufficient to recognize that the evidence submitted by the prosecutor alone submitted by the prosecutor alone is an exaggerated expression unlike the actual contents, so it cannot be concluded that this part of the advertisement is an exaggerated advertisement (this part of the defendant asserts that there is a case that the form in which the body of the cancer patient remains in force by the prescription law up to this court). This part of the prosecutor's assertion is without merit.

D. Sub-committee

Therefore, among the facts charged in this case, the court below found the defendant guilty on the violation of the Pharmaceutical Affairs Act that the defendant conspireds with the non-qualified non-indicted 2 who committed an act of preparing herb drugs, but the court below found the defendant not guilty on this part of the facts charged. Since this part of the facts charged is in the relation of some violation of the Pharmaceutical Affairs Act and the commercial concurrence as stipulated in Article 40 of the Criminal Act, the above two crimes should be punished pursuant to Article 50 of the Criminal Act, and the above former violation of the Pharmaceutical Affairs Act shall be sentenced to punishment under the former part of Article 37 of the Criminal Act with heavy punishment. In addition, the above former violation of the Pharmaceutical Affairs Act shall be sentenced to a single punishment on each of the above crimes because it is in the relation of the crimes

5. Conclusion

Therefore, since the appeal against the prosecutor's violation of the Pharmaceutical Affairs Act is well-grounded, the conviction part of the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and the appeal against the prosecutor's violation of the Act on Special Measures for the Control of Public Health Crimes is judged again after pleading as follows. Since there is no reason to appeal against the prosecutor's violation of the Act on Special Measures for the Control of Public Health Crimes, it is

The defendant is a person who operated ○○ Won.

1. No person, other than pharmacists or herb pharmacists, may prepare drugs; where he prepares drugs, he/she shall do so at a pharmacy or a dispensary of a medical institution; and where an oriental medicine doctor uses herb drugs or herb drugs for his/her own treatment, in collusion with Nonindicted 2, who is not qualified as a pharmacist, herb pharmacist, or oriental medicine doctor, although he/she should prepare them directly;

Between March 4, 2002 and September 30 of the same year, the Defendant’s office located in Seongdong-gu Seoul (hereinafter referred to as “2 omitted) is not a pharmacy or medical institution, and the Defendant’s office located in Seongdong-gu (hereinafter referred to as “Seoul”) is equipped with three medicinal herbs storages, eight medicinal herbss, two sealed packaging machines, etc.; Nonindicted 2 made approximately 210 patients, who are patients with chronic dysium, by preparing salvate sugars, etc. in the above manner, and receiving a total of KRW 26,6564,00,00,00, in accordance with the prescription sent by the Defendant from the above ○○ Council;

2. From August 2002 to October 17 of the same year, the Internet homepage (www. ○○○○.com) included the contents “○○○○○○○○○○○○○○○○○○○○○○○○○○○, which realizes the world’s highest level of treatment efficiency of terminal cancer,” thereby making an excessive advertisement on the medical service affairs.

1. Statement by the defendant in this court;

1. Each prosecutor and police suspect interrogation protocol regarding Nonindicted 2

1. Advertisement on website;

1. Article applicable to criminal facts;

Articles 76(1) and 21(2) of the Pharmaceutical Affairs Act, Article 30 of the Criminal Act (including preparation of drugs outside a dispensary), Article 74(1)1 of the Pharmaceutical Affairs Act, Article 21(1) of the same Act, Article 30 of the Criminal Act (the preparation of medicines without a license), Articles 67 and 46(1) of the Medical Service Act (the occupation of an exaggerated advertisement in medical service)

1. Commercial competition;

Articles 40 and 50 (Mutual Violation of Pharmaceutical Affairs Act)

1. Aggravation of concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

From August 2002 to October 17 of the same year, the defendant in the facts charged of this case " ○○○○ Medical Center (www. ○○○○.com)" refers to ○○ Medical Center that treats cancer patients on its Internet homepage (www. ○○○○○.com) and "in case of entrance into a treatment room, terminal cancer patients are suffering from a large sum of body parts of the body and flow out of the body." The defendant is not guilty of a single crime of violation of Article 325 of the Criminal Procedure Act, since it constitutes a violation of the latter part of Article 325 of the Criminal Procedure Act.

Although the accused has been sentenced to a suspended sentence on one occasion due to a violation of the Act on Special Measures for the Control of Public Health Crimes, the accused shall be sentenced to a fine in consideration of the following: Provided, That the accused shall be sentenced to a fine in consideration of the above sentencing factors and the accused’s age, character and conduct, intelligence and environment, motive, means and consequence of the crime, etc., and the sentencing conditions specified in this case, such as the circumstances after the crime, shall be determined as the disposition.

Judges Kim Yong-sik (Presiding Judge)