207Do2461 Violation of the Medical Service Act

section 32(d);

Seoul Residence

Permanent Mah City

Defendant

Seoul Western District Court Decision 2006Do1195 Decided March 20, 2007

September 21, 2007

The appeal is dismissed.

We examine the grounds of appeal.

1. The term "medical practice" means any act of preventing or treating a disease caused by a diagnosis, autopsy, prescription, medication, or an extracurricular procedure with experience and function based on medical expertise, and any other act that is likely to cause harm to public health and sanitation if performed by a medical person. Without distinction from the name of the medical person, a certain act of treating the disease is not merely a mere procedure for recovery from skin, but also a certain act of treating the disease by causing considerable physical shock to the body, if the act of treating the disease is committed by means of causing considerable physical shock to the body, it shall be deemed as an act that may cause harm to public health and sanitation, i.e., a medical practice (see, e., Supreme Court en banc Decision 200Do807, Jun. 20, 200; Supreme Court Decision 201Do298, Jan. 15, 2004).

In light of the above legal principles and records, after recognizing facts as stated in its reasoning based on the evidence duly admitted by the court below, the court below is just and acceptable to determine that the act of this case is a medical act that is likely to cause harm to public health and hygiene because it is not merely a mere physical shock of body, and it constitutes a treatment act that is likely to cause harm to public health and hygiene unless performed by a medical person because it is not likely that the side effect of the body is not threatened, and there is no error of law such as misunderstanding of facts by the rules of evidence or misunderstanding of legal principles as to medical practice due to the act of this case, as argued in the Grounds for Appeal.

2. (a) According to Article 25(1)1 of the Medical Service Act and Article 20 of the Enforcement Rule of the Medical Service Act, a person who holds a license for a foreign medical person and stays in the Republic of Korea for a given period of time may perform medical practice with the approval of the Minister of Health and Welfare to the extent necessary for the exchange professors through education or technical cooperation with foreign countries, educational research projects, and the performance of medical service duties of the International Medical Volunteers.

Therefore, even if the defendant or accomplice, was holding a medical license of China, and stayed in the Republic of Korea for a certain period of time, the medical act of this case cannot be performed as mentioned above without obtaining the approval of the Minister of Health and Welfare. According to the records, there is no evidence to support that the medical act of this case was conducted for the purpose of performing the duties prescribed in Article 25 (1) 1 of the Medical Service Act and Article 20 of the Enforcement Rule of the Medical Service Act, or that it was approved by the Minister of Health and Welfare for the defendant, the above transmission, and the above transmission.

B. According to Article 25(1)2 of the Medical Service Act and Article 21(1) of the Enforcement Rule of the Medical Service Act, a person who conducts medical services or medical services for research and demonstration projects conducted at the request of the State or a local government in the event of a medical act for the purpose of medical service, war, incident, or other similar national emergency, may perform medical services for the purpose of research or demonstration projects conducted at the request of the State or a local government within a certain period.

According to the records, although the defendant is recognized as the chairperson of the Korean Medical Association, who is the member of the above Association, and the defendant is a member of the above Association, it shall not be recognized that the above Medical Association constitutes "foreign medical aid organization" under Article 25 (1) 2 of the Medical Service Act or the medical practice of this case constitutes medical practice under Article 21 (1) of the Enforcement Rule of the Medical Service Act, even in full view of the records of this case and all data submitted by the defendant.

C. Ultimately, the medical practice of this case cannot be deemed as a medical practice permitted under Article 25 (1) 1 or 2 of the Medical Service Act. In the same purport, the decision of the court below which rejected the defendant's claim on this purport is justified and acceptable, and there is no error in the misapprehension of legal principles as to the medical practice permitted under the Medical Service Act, as otherwise alleged in the ground of appeal.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam

Justices Park Jong-hwan

Justices Park Poe-young

Justices Kim Gi-hwan