[1] The case holding that an act of performing similar treatment to the comprehensive law, which is committed against cancer patients, etc. with red burners applied to pains, etc. and refers to "medical act" under Article 25 of the former Medical Service Act

[2] Where a medical advertisement is prohibited as "false or exaggerated advertisement" under the Medical Service Act

[3] The case holding that the judgment below erred by misapprehending legal principles in holding that the act of publishing the so-called "titled advertisements" on the Internet homepage of the National Assembly member, which caused the effect of the drug invasion, does not constitute "advertisementd advertisements" under Article 46 (1) of the former Medical Service Act

[1] The case holding that an act of practice similar to the comprehensive law, which illegally administers the skin with an apparatus, such as a sprink or pent stone, after using a red gun on the pain and a successful bid surface, etc. against cancer patients, may cause harm to patients, such as leaving a pain and sprink, in a case where it is performed without any professional knowledge about blood transfusion, successful bid, light sprink or light sprink, etc., and where it is performed at an inappropriate level without any specific apparatus, there is a little red change in the skin of the part above, and where it is performed at an intensive level with a specific apparatus, the occurrence of danger and injury is sufficiently predicted when it is performed at an improper level.

[2] If a medical advertisement is due to objective facts and without exaggeration, and without which the medical technology or method of the medical care in question is known to the medical consumer without exaggeration, it shall be allowed to help consumers make rational choice and promote the public interest by promoting fair competition among the medical personnel. However, in light of the fact that the medical practice has a direct and significant influence on human life and body, it shall be prohibited as false or exaggerated advertisements that prevent the medical service consumer from spreading or have vain medical expectations by stating any content that is not objective or without any grounds, or that the safety and effectiveness in modern medical science has a scientificly not verified.

[3] 약침의 효력으로 암의 독이 고름으로 빠져 나온다는 소위 ‘고름광고’를 한의원의 인터넷 홈페이지에 게재한 행위는, 일정 신체 부위에 집중적으로 주사와 쑥뜸을 반복함으로써 당해 부위에 화상을 입혀 상처를 나게 하고 그곳에 고약을 바르면 고름이 나오는 것은 당연한 현상이므로 실제와 달리 과장하여 표현한 ‘과대광고’에 해당함에도, 이를 무죄로 인정한 원심판단에 구 의료법(2007. 1. 3. 법률 제8203호로 개정되기 전의 것) 제46조 제1항 의 ‘과대광고’에 관한 법리오해의 위법이 있다고 한 사례.

[1] Articles 25(1) (see current Article 27(1) and 66 subparag. 3 (see current Article 87(1)2) of the former Medical Service Act (Amended by Act No. 8203, Jan. 3, 2007); Article 5 of the former Act on Special Measures for the Control of Public Health Crimes (Amended by Act No. 8366, Apr. 11, 2007) / [2] Articles 46(1) (see current Article 56(3)), 67 (see current Article 89) of the former Medical Service Act (Amended by Act No. 8203, Jan. 3, 2007); Article 46(1) and (3) of the former Medical Service Act (Amended by Act No. 8203, Jan. 3, 2007; see current Article 56(3) and (87) of the former Medical Service Act (Amended by Act No. 8203, Jan. 3, 2007)

[1] Supreme Court Decision 98Do2481 delivered on March 26, 199 (Gong199Sang, 818) Supreme Court Decision 2004Do3405 Delivered on October 28, 2004 (Gong2004Ha, 1989) Supreme Court Decision 2007Do531 Delivered on May 14, 2009 (Gong2009Sang, 906) / [2] Supreme Court Decision 2006Do9311 Delivered on February 26, 2009 (Gong2009Sang, 387)

Defendant

Defendant and Prosecutor

Law Firm Bapus, Attorney Lee E-ri

Seoul Central District Court Decision 2006No681 Decided November 23, 2006

The judgment below is reversed, and the case is remanded to Seoul Central District Court Panel Division.

1. Judgment on the grounds of appeal by the prosecutor

A. Part of the Act on Special Measures for the Control of Public Health Crimes (Unlawful Medical Service Providers)

Medical practice refers to the act of preventing or treating diseases caused by diagnosis, examination, prescription, medication, or surgical treatment with medical expertise based on experience and skills, and other acts that may cause harm to public health and sanitation if performed by medical personnel (see Supreme Court Decision 98Do2481 delivered on March 26, 199).

Comprehensively taking account of the evidence adopted by the court below, the court below found that non-indicted 1's act of treatment of this case was difficult to find out the patient's cryptive treatment of this case or cryptive patient's cryptive treatment of this case's cryptive treatment of this case's cryptive treatment of this case's cryptive treatment of this case's cryptive treatment of this case's cryptive treatment of this case's cryptive treatment of this case's cryptive treatment of this case's cryptive treatment of this case's cryptive treatment of this case's cryptive treatment of this case's cryptive treatment of this case's cryptive treatment of this case's cryptive treatment of this case's cryptive treatment of this case's cryptive treatment of this case's cryptive treatment of this case.

However, the above judgment of the court below is hard to accept.

First, even according to the judgment of the court below, Non-Indicted 1 performed an operation for gateping with the apparatus, such as sprinkers, after using red sprinkers and sprinkers, etc. The act of performing such operation is not likely to cause any harm to the patient's body by using 3201.5 Mespher, 3102 Mespher, 4505 Mespher, 4510 Mespherspher, and 4510 Mesphere 25 Mespherspherspher, and the court below's response that the act of performing such operation belongs to a comprehensive medical practice belonging to the human body's Mesphere Mesphere Mesphere Mesphere Mesphere Mesphere Mesphere Mesphere Mesphere Mesphere Mesphere Mespher.

B. Part on violation of the former Medical Service Act due to some exaggerated advertisements

Article 46(1) of the former Medical Service Act (amended by Act No. 8203, Jan. 3, 2007; hereinafter “former Medical Service Act”) provides that “No medical corporation, medical institution, or medical person shall make a false or exaggerated advertisement concerning the business of medical treatment or the career of a medical person.” Here, the term “false or exaggerated advertisement” refers to an advertisement that contains any content that is not true or excessively poor, and thus is likely to cause mistake or confusion for ordinary people who lack medical knowledge (see Supreme Court Decision 2006Do9311, Feb. 26, 2009).

The lower court determined that, as an advertisement published on the Defendant’s Internet homepage, “○○ oriental medical hospital that treats cancer patients under the Act on the Treatment of Drugs” (hereinafter “malination advertising”) and “Preferred to as “Preferred to as the Medical Treatment Act, terminal cancer patients are suffering from a large hole of their body and flow out of the body.” As to the content of so-called “humin explanation” (hereinafter “malin explanation”) stating that the so-called “malination is going out of the body due to the effect of the invasion” (hereinafter “malin advertisement”), so long as the cancer patients were treated under the Medical Treatment Act, regardless of the treatment effect, it cannot be deemed as an exaggerated advertisement regardless of the treatment effect, and that it is insufficient to recognize the fact that the content of the advertisement is insufficient to recognize that the content of the advertisement is distorted merely by the evidence of the prosecutor’s submission of inspection.

If a medical advertisement is due to objective facts and without exaggerations the medical technology or method of the medical service provider in question, it is necessary to allow the medical consumer to help the consumer make a rational choice and promote the public interest by promoting fair competition among the medical personnel. However, in light of the fact that the medical practice has a direct and significant influence on human life and body, it should be prohibited as false or exaggerated advertisements that prevent the medical service consumer from being exposed to objective facts or have vain medical expectations by stating the safety and effectiveness of modern medical science by stating the contents that are not objectively verified.

In light of the above legal principles, first of all, since the instant drug advertising was treated by the Defendant against the patients who actually worked in the ○○○ Council members, the phrase of the instant drug advertising is merely a statement of fact, and it is difficult to view that it was not a fact or the content of the advertisement was unresh, and thus, it cannot be said that there was an error of misapprehension of the legal principles as to an exaggerated advertisement in the judgment of the court below.

그러나 한편, 이 사건 고름광고와 관련하여서는 현대의학의 기준에서 보면, 암환자가 아닌 일반인의 경우에도 일정 신체 부위에 집중적으로 주사와 쑥뜸을 반복함으로써 당해 부위에 화상을 입혀 상처를 나게 하고 그곳에 고약을 바르면 고름이 나오는 것은 당연한 현상이고, 이러한 증상이 피고인의 시술로 인하여 그 치료 효과로서 나타나는 특별한 현상이라고 보기는 어렵다. 그럼에도 불구하고 원심은 검사가 제출한 증거로는 이 사건 고름광고가 실제와 달리 과장하여 표현한 것이라 인정하기에 부족하다는 이유로 무죄로 판단하였는바, 이러한 원심의 판단에는 과대광고에 관한 법리를 오해한 위법이 있다.

2. Judgment on the Defendant’s grounds of appeal

The term “preparation of medicines” under Article 21(1) of the Pharmaceutical Affairs Act refers to preparing medicines to use for the purpose of treating or preventing a specific disease of a specific person according to a specific usage by mixing two or more medicines or dividing one medicine into certain quantity according to a specific prescription. As such, mixing herb drugs is generally included in the concept of the above preparation (see Supreme Court Decision 91Do2348 delivered on December 10, 191).

However, the court below held that the act of copying a prescription prepared by the defendant by the non-indicted 2 and taking measurements of herb drugs at the defendant's house, mixing them with it, and the act of packing the drugs is a preparation of medicinal materials for the patients who visited the defendant's clinic by mixing two or more medicines according to the prescription prepared by the defendant, and thus, it is reasonable to view that the above determination by the court below is just, and it is not erroneous in the misapprehension of legal principles as to the act of preparing medicines as argued by the defendant.

In addition, the term "herb drugs" means raw drugs extracted from animals, plants, or minerals and dried, cut, or refined in their original forms mainly. The issue of whether they constitute drugs shall be determined by comprehensively taking into account the ingredients, shapes (containers, packages, designs, etc.), names of use, purposes of use indicated, efficacy, efficacy, efficacy, usage, dosage, publicity or explanation at the time of sale, etc. of such drugs, except those recognized as agricultural products or food, etc. by the general public in society, if they are recognized as being used for the purpose of diagnosis, treatment, mitigation, treatment, or prevention of human or animal diseases, or if they are claimed as such, they constitute drugs subject to the Pharmaceutical Affairs Act (see Supreme Court Decision 2006Do7109, Feb. 9, 2007). Since the purpose of this case, which is the non-indicted 2 months, is to treat the patients' disease of treatment, it constitutes drugs subject to the regulation of the Pharmaceutical Affairs Act. This part of the appeal by the defendant is without merit.

3. Scope of reversal

As seen above, among the facts charged in this case, although it can be sufficiently convicted of the violation of the former Act on Special Measures for the Control of Public Health Crimes (Unlawful Medical Business Operator) and the violation of the former Medical Service Act that the defendant had engaged in a medical act such as the instant medical act in collusion with Nonindicted 1, a non-licensed medical business operator for profit, and the violation of the former Medical Service Act that had placed an excessive advertisement on the Internet homepage at the Gangnam ○○○○○ Council operated by the defendant, the court below acquitted the defendant as to this part of the facts charged. Thus, the court below acquitted the defendant as to this part of the facts charged. Since this part is a case where one sentence should be imposed in a concurrent relationship between the facts charged in violation of the Pharmaceutical Affairs Act and the former part of

4. Conclusion

Therefore, the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)