Defendant

Prosecutor

Kim Jong-soo

Law Firm Taese, Attorney Lee Gyeong-soo

Seoul Central District Court Decision 2010Gohap6050 Decided June 8, 2011

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 1,000,000.

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.

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

1. Summary of grounds for appeal;

In full view of the evidence presented by the prosecutor, although the defendant could be found to have violated the Medical Service Act by issuing a prescription in the name of Nonindicted 2 and Nonindicted 3 without direct diagnosis as stated in the facts charged, the court below acquitted the defendant on the ground that there was no proof as to the facts charged in this case. In so doing, the court below erred by misapprehending the facts or by misapprehending the

2. Determination:

A. Murder, Article 17(1) of the Medical Service Act provides that “A doctor who directly conducts a medical examination or autopsy (hereafter in this paragraph, including a doctor working for a State agency in charge of autopsy only from the time of the final diagnosis) who is not a dentist, dentist, or herb doctor, or medical doctor (including a prescription prepared in the form of an electronic document bearing an electronic signature under the Digital Signature Act (hereinafter referred to as “electronic prescription”) by a doctor or dentist; hereinafter the same shall apply) shall not prepare and deliver to a patient (referring to a spouse, lineal ascendant or descendant, or spouse’s lineal ascendant or descendant, or spouse’s lineal ascendant; hereinafter the same shall apply) or to a district public prosecutor (limited to an electronic prescription) of the district public prosecutor’s office conducting the autopsy pursuant to Article 22(1) of the Criminal Procedure Act: Provided, That where a patient under medical examination dies within 48 hours from the time of the final diagnosis and treatment, he/she may issue a medical certificate or certificate to the medical institution without any further medical examination or treatment, and only one doctor, dentist or herb doctor or herb doctor may issue the same certificate to the same medical institution.”

In full view of the legislative purport of the foregoing provision and the forms of the penal provision of this case, when interpreting the provision of this case and the penal provision, a doctor shall be punished by imprisonment with prison labor for not more than one year or by a fine not exceeding five million won pursuant to the penal provision, where a doctor delivers a medical certificate, etc. under the name of another person, other than his/her own name, where a doctor delivers a medical certificate, etc. under the name of another person under the name of another person (issuance of another person), and a doctor delivers a medical certificate, etc. under the name of another person (issuance of a medical certificate under the name of another person), where a doctor delivers a medical certificate, etc. under the name of another person without the medical examination to a third person (issuance of a medical certificate under the name of another person), all of the following are deemed to violate the provision of this case.

B. In full view of the evidence duly adopted and examined by the court below, the defendant's act constitutes a case where the defendant conducted a medical prescription in the name of non-indicted 1 and issued a prescription in the name of non-indicted 2 and non-indicted 3, and the defendant's act constitutes a case where the doctor issued a prescription in the name of a third party who did not receive a medical examination (issuance by proxy) and constitutes a

C. Therefore, the judgment of the court below which acquitted the Defendant of the facts charged of this case is erroneous by misapprehending the legal principles and affecting the conclusion of judgment.

3. Conclusion

Therefore, since the prosecutor's appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

The Defendant is a person who is engaged in the medical business by acquiring a medical license (license number omitted) with the president of the Jung-gu Seoul Metropolitan Government (hereinafter address omitted) 13th floor. A person who is engaged in the medical business and directly conducted a medical examination shall not prepare a prescription and deliver it to the patient.

Nevertheless, on June 1, 2010, the Defendant prepared two copies of a prescription for each one month in the name of Non-Indicted 2 and Non-Indicted 3, who is an employee of the above Council, without direct medical examination, and issued a prescription without any medical examination.

1. Partial statement of the defendant;

1. Each legal statement of the witness, Nonindicted 1 and Nonindicted 2

1. The defendant's certificate;

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 89 and 17(1) of the Medical Service Act, selection of fines

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

It is necessary to strictly punish the Defendant in light of the fact that the instant crime is a primary offender. The instant crime is a medical act requiring high level of expertise, objectivity and morality by issuing a false prescription with respect to medical acts requiring high level of expertise, objectivity and morality, thereby realizing social trust in adequate medical services. In addition, the Defendant’s age, character and behavior and environment, motive, means and consequence of the instant crime, and the conditions of sentencing specified in the pleadings of the instant case, such as circumstances after the commission of the crime, etc.

Judges Lee Jae-won (Presiding Judge) Suspension of Kim Jong-ju