[1] The meaning of medical practice and whether cosmetic surgery are included in medical practice (affirmative with qualification)

[2] The case holding that an act of surgery for eyebrow or hair surgery constitutes medical practice

[3] The elements for the exclusion of illegality as a legitimate act of an unlicensed medical practice

[4] The case holding that it does not constitute a justifiable act where a doctor does not participate in a separate part of the act of hairing while he/she has a certain degree of knowledge about the act of hairing and having a assistant nurse with a certain degree of knowledge about the act of hairing

[5] The admissibility of evidence of the suspect interrogation protocol prepared by the public prosecutor in a case where it was reversed when it acknowledged the authenticity and voluntariness of the suspect interrogation protocol

[6] The case holding that in a case where the Constitutional Court made a decision of unconstitutionality on the applicable penal provisions during the period of a final appeal after a judgment of conviction by the court below on advertisement of the specific medical person's methods of medical treatment, etc., the defendant's case which was prosecuted by applying the pertinent provisions

[1] Medical practice includes not only the act of preventing and treating diseases, but also the act of issuing harm to human life, body, or public health unless performed by a medical person with medical expertise, and thus, cosmetic-type surgery which is not related to the treatment of a disease falls under the act of issuing harm to human life, body, or public health.

[2] The case holding that the act of a medical doctor, while performing the surgery, of having a nursing nurse extract the hair extracted from the after- latter part of the surgery at a certain angle, and let the nurse correct the direction of the hair so that the transplanted hair can lead to the upper part of the surgery, while performing the hair surgery, and that the act of allowing the nurse to insert the hair by inserting the knife to the knife at the knife level of the head of the surgery, constitutes a medical practice beyond the scope of the act of medical assistance

[3] When a certain act falling under a medical practice was performed without a license, it shall be dismissed that it does not violate the social rules, only if it is deemed to constitute an act acceptable in light of the overall legal order or the social ethics or social norms surrounding the act, comprehensively taking into account the degree of danger of the act of the practice, the general public’s perspective, the motive, purpose, method, frequency, knowledge level of the procedure, work experience, the person’s experience, the age, physical constitution, health condition, and the possibility of causing any side effect or danger caused by the act of the procedure.

[4] The case holding that it does not constitute a justifiable act where a doctor does not participate in a separate part while having a assistant nurse with a certain degree of knowledge in the course of a maternity surgery after having the assistant nurse directly entrusted a certain part of the act of hairing.

[5] Where the defendant or his defense counsel acknowledged the authenticity and voluntariness of the protocol of interrogation of the suspect against the defendant prepared by the prosecutor, and then denied it or submitted a document, the protocol's admissibility cannot be always denied. In light of the contents and form of the protocol and the statement related to the crime in the court of the defendant, the first statement that recognized the authenticity and voluntariness of the formation of the protocol is credibility, and when the court acknowledged the authenticity of the protocol of interrogation of the suspect, the protocol of interrogation of the suspect is admissible as evidence.

[6] The case holding that in a case where the Constitutional Court made a decision of unconstitutionality on the applicable penal provisions during the period of a final appeal after a judgment of conviction by the court below on advertisement of the specific medical person's methods of medical treatment, etc., the defendant's case which was prosecuted by applying the pertinent provision constitutes

[1] Article 27 (1) of the Medical Service Act / [2] Articles 27 (1) and 87 (1) of the Medical Service Act / [3] Article 20 of the Criminal Act, Article 27 (1) of the Medical Service Act / [4] Article 20 of the Criminal Act, Article 27 (1) of the Medical Service Act / [5] Article 312 of the Criminal Procedure Act / [6] Article 47 (2) of the Constitutional Court Act, Article 391 of the Criminal Procedure Act, Article 46 (3) of the former Medical Service Act (amended by Act No. 6686 of March 30, 202), Article 69 (see current Article 89) of the Medical Service Act

[1] Supreme Court en banc Decision 74Do114 delivered on November 26, 1974 (Gong1975, 822), Supreme Court Decision 91Do3219 delivered on May 22, 1992 (Gong1992, 2057), Supreme Court Decision 99Do4541 delivered on February 22, 200 (Gong2000Sang, 880), Supreme Court Decision 2003Do2903 delivered on September 5, 2003 (Gong203Ha, 2042 delivered on June 10, 205), Supreme Court Decision 2005Do2740 delivered on June 26, 2005 / [3] Supreme Court Decision 2007Do5409 delivered on June 26, 2005, Supreme Court Decision 2009Do7409 delivered on June 26, 2005

Defendant 1 and six others

Defendants

Attorneys Park Young-soo et al.

Seoul Central District Court Decision 2005No1994 Decided October 13, 2005

The part of the lower judgment against Defendant 1 is reversed, and that part of the case is remanded to the Panel Division of the Seoul Central District Court. All of the remaining Defendants’ appeals are dismissed.

The grounds of appeal are examined.

1. As to the Defendants’ non-licensed medical practice

A. Medical practice includes not only the act of preventing and treating diseases, but also the act that is likely to issue harm to human life, body, or public health unless performed by a medical person with medical expertise (see Supreme Court Decisions 91Do3219, May 22, 1992; 99Do4541, Feb. 22, 2000; 2003Do2903, Sept. 5, 2003; 74Do114, Nov. 26, 1974; 2005Do2740, Jun. 10, 2005).

In light of the above legal principles and records, the court below acknowledged the facts as stated in its decision after compiling the evidence duly admitted by the court of first instance. The court below judged that the defendants 1, a doctor, had co-defendant 1, an assistant nurse, extract the hair extracted from the after body of the recipient of the surgery at a certain angle on the increase in the scope of the surgery for the surgery for the surgery for the surgery for the eyebrow, and let him correct the direction of the hair for the surgery for the hair, and that the rest of the defendants, while performing the hair surgery, did the above defendants 1 in the first instance court's act of inserting the hair in the manner of inserting knch to the aftermath of the recipient of the surgery until the aftermath of the surgery, and did not err in the misapprehension of legal principles as to the license for the medical act for the first instance court as long as the above acts were committed by Co-defendant 1, the court below erred in the misapprehension of legal principles and the judgment of the court below as to the defendants' act of non-medical treatment as alleged in the grounds for appeal.

B. When a certain procedure falling under a medical practice was performed without a license, it shall be dismissed that it does not violate social norms, in light of the degree of danger of the procedure, the general public's time, the motive, purpose, method, frequency of the procedure, the knowledge level of the procedure, the experience of the procedure, the age, physical condition, health condition of the person under question, the possibility of causing side effects or risks arising from the procedure, etc. (see, e.g., Supreme Court Decisions 2002Do5077, Dec. 26, 2002; 2004Do3405, Oct. 28, 2004; 2006Do1297, Mar. 23, 2006).

In light of the above legal principles and the records, even if Co-Defendant 1, who is only a health team and a assistant nurse, has certain degree of knowledge about the maternity surgery, he did not have a systematic knowledge and qualification as to the overall medical care, and Defendant 5 did not have any error in the misapprehension of legal principles as to the legitimate act of the above defendant on the ground that the above defendant's act cannot be seen as being acceptable in light of the overall legal order including the Medical Service Act, or in light of social norms, and thus rejected his assertion that the defendant's justifiable act of the above defendant is justified and there is no error in the misapprehension of legal principles as to legitimate act.

C. Where the defendant or his defense counsel acknowledged the authenticity and voluntariness of the protocol of interrogation of the suspect against the defendant prepared by the public prosecutor, and then denied it or submitted a document, it cannot be said that the protocol is inadmissible. In light of the contents and form of the protocol and the statement related to the crime in the court of the defendant, the first statement that recognized the authenticity and voluntariness of the formation of the protocol is credibility, and when the defendant recognized the authenticity and voluntartariness of the protocol, the protocol of interrogation of the suspect concerned is admissible as evidence (see Supreme Court Decisions 97Do2368 delivered on December 12, 1997, 2005Do3045 delivered on August 19, 2005, etc.).

According to the records, the defendant 2 and his defense counsel recognized the authenticity and voluntariness of the interrogation protocol on the date of the second trial of the first instance, and the fact that he did not raise any objection as to the admissibility of evidence until the examination of evidence is completed on the date of the seventh trial of the first instance. Considering the age, academic background, career, and contents of the interrogation protocol as mentioned above, the above defendant and his defense counsel's statement acknowledged the authenticity and voluntariness of the interrogation protocol in the court of first instance are credibility, and the admissibility of evidence is recognized, since the above defendant and his defense counsel's statement acknowledged the authenticity and voluntariness of the interrogation

Furthermore, according to the records, since the evidence of the first instance court, other than the above interrogation protocol, which was adopted by the court of first instance, is sufficient to find the defendant guilty of the facts charged in the instant case, it cannot be deemed that the court below maintained the first instance court's judgment which cited the above interrogation protocol as one of the evidence of conviction.

D. In this case where a fine is imposed, the reason that the sentence of the court below is too unreasonable is not a legitimate ground for appeal.

2. As to the advertisement part on Defendant 1 including medical treatment method by a specific medical person

The summary of this part of the facts constituting the crime acknowledged by the court below is as follows: (a) from November 1, 2001 to October 20, 204, the above defendant placed an advertisement for the treatment methods, etc. of a specific medical person by posting his name therapy method, photographs before and after the procedure, the detailed method of hair transplantation procedure, and the post-treatment procedure on the (www.co.) website (www.co.), from November 2004; and (b) from among the Medical Service Act applied by the court below, the part of Article 46 (3) of the former Medical Service Act which was amended by Act No. 6686 of March 30, 202 (hereinafter "former Medical Service Act") and the part of Article 69 "violation of the above prohibition of advertisement" was retroactively invalidated by the Constitutional Court Decision 2003Hun-Ga3, Oct. 27, 2005.

However, since the former Medical Service Act was enforced until March 30, 2003 (see Article 1 of the Addenda of the Medical Service Act amended by Act No. 6686, Mar. 30, 2002). The part concerning the advertisement from November 1, 2001 to March 30, 2003 among the above facts constituting a crime is retroactively null and void due to the decision of unconstitutionality as to the provision of the Act applied by the court below, and the case prosecuted by applying the above provision of the Act becomes one of the crimes committed by the defendant (see Supreme Court Decision 2002Do7403, Jun. 27, 2003). Accordingly, in light of the purport of the Constitutional Court's decision of unconstitutionality, the part concerning the above facts constituting a single comprehensive crime cannot be maintained as it is without need to examine the remainder of the grounds of appeal, the above part of the above facts constituting a crime can also be deemed as unconstitutional from March 30, 2003 to June 36, 2004.

Ultimately, the part of the judgment of the court below against the above defendant, such as the medical treatment method of a specific medical person, should be reversed, and this part of the crime and the part of the non-licensed medical treatment act which the court below found guilty should be sentenced to a single punishment as concurrent crimes under the former part of Article 37 of the Criminal Act. Therefore, the judgment of

3. Conclusion

Therefore, the part of the judgment of the court below against Defendant 1 is reversed, and that part of the case is remanded to the court below for a new trial and determination, and all of the remaining defendants' appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)