[1] The meaning of "the act of introducing, arranging, or inducing or inducing a patient" prohibited under Article 25 (3) of the former Medical Service Act and the subject of the crime of violation of the above provision

[2] Whether a medical institution or a medical person's act of attracting patients to himself/herself constitutes inducement of patients under Article 25 (3) of the former Medical Service Act (affirmative with qualification)

[1] The term "introduction and good offices" under Article 25 (3) of the former Medical Service Act (amended by Act No. 6686 of Mar. 30, 2002) refers to the act of inducing a patient to enter into a contract for medical treatment delegation with a specific medical institution or a specific medical person by deceiving or treating the patient, and the term "inducing a patient" refers to inducing a patient to enter into a contract for medical treatment delegation with a specific medical institution or a specific medical person, and the term "inducing a patient" refers to the act of inducing a third person to enter into a contract for medical treatment entrustment with a specific medical institution or a specific medical person, and the term "inducing a patient" refers to the act of inducing a third person to introduce, arrange, or induce a specific medical institution or a specific medical person for profit-making as well as prohibiting the acts of inducing patients by a medical person or a person other

[2] The act of a medical institution and a medical person to attract a patient to himself/herself cannot be deemed as a "induce of a patient" under Article 25 (3) of the former Medical Service Act, unless there are special circumstances such as the provision of money or goods to a patient or an actor during the process or fundamental harm to the order of the medical market. Even if the act was performed through an employee who is not a medical personnel, it does not constitute a "induce or arrangement of a patient" or

[1] Article 25 (3) of the former Medical Service Act (amended by Act No. 6686 of March 30, 2002) / [2] Article 25 (3) of the former Medical Service Act (amended by Act No. 6686 of March 30, 2002)

[1] Supreme Court Decision 95Do1765 delivered on February 9, 1996 (Gong1996Sang, 1010), Supreme Court Decision 97Do126 delivered on May 29, 1998 (Gong1998Ha, 1838), Supreme Court Decision 99Do803 delivered on June 22, 199 (Gong199Ha, 1544)

Defendant 1 and one other

Defendants

Attorney Han Jae-chul

Gwangju District Court Decision 2004No1328 Decided August 18, 2004

The judgment of the court below is reversed, and the case is remanded to the Gwangju District Court Panel Division.

1. Summary of the facts charged in this case

Defendant 1 is the person working as the head of the administration of the hospital (mutual omission) and Defendant 2 is the head of the hospital at the hospital at the hospital at the hospital at the hospital at the hospital, and the person cannot introduce, arrange or induce patients to the medical institution or the medical person for profit, or not act to instigate such act:

A. On May 6, 2002, Defendant 1: (a) visited the public institutions, organizations, etc. in the Sohyeong-si, YY-si, which received KRW 30,000,00,00,000, which is below the market price, from 300,000 won from YY-si to YY-si; (b) visited the public institutions, organizations, etc. in the Sohcheon-si, YY-si, YY-si, etc. to receive KRW 30,00,00,000 from YY-si to YY-si in order to receive the down payment from approximately 250,00 won; and (c) introduce and mediate the patient to the medical

B. Defendant 2, at the time and place under the preceding paragraph, committed the above act of violation against Defendant 1, who is his employee, in relation to the duties of Defendant 2.

2. The judgment of the court below

The lower court found Defendant 1 guilty of the Defendants’ act on the ground that Defendant 1’s act constitutes the “act of introduction and good offices” under Article 25(3) of the Medical Service Act, on the ground that Defendant 1’s act of propaganda that, if Defendant 1 made a promise at (mutual omission) hospital as a down payment of KRW 30,000,000,000, more than the market price, it should be deemed that Defendant 1’s act was the act of introducing or arranging patients beyond mere publicity.

3. The judgment of this Court

However, it is difficult to accept such judgment of the court below.

"Referral and good offices" under Article 25 (3) of the former Medical Service Act (amended by Act No. 6686, Mar. 30, 2002; hereinafter the same) refers to the act of mediating or assisting a patient to enter into a contract for medical treatment delegation between a patient and a specific medical institution or a specific medical person; "inducing" refers to the act of inducing a patient to enter into a contract for medical treatment delegation with a specific medical institution or a specific medical person, and "inducing a patient" refers to the act of inducing another person to enter into a contract for medical treatment entrustment with a specific medical institution or a specific medical person, and "inducing a patient" refers to the act of inducing another person to introduce, mediate, or induce a specific medical institution or a specific medical person for profit (refer to Supreme Court Decision 97Do1126, May 29, 198). The purpose of the above provision is not only prohibiting the inducement of a patient by a medical person or a person other than a medical institution founder, but also prohibiting the inducement or the act of inducing a patient (refer).

However, the legislative purport of Article 25(3) of the former Medical Service Act is to prevent corruption, such as giving and receiving money and valuables, and to prevent unreasonable excessive competition among medical institutions around the patient's attraction. As long as the purpose of profit-making is to prevent the access of the patient, Article 46 of the former Medical Service Act provides that medical corporations, medical institutions, and medical personnel can make an advertisement in a manner prescribed by the Ordinance of the Ministry of Health and Welfare, but shall not make a false or exaggerated advertisement, and it can be punished for violation of Article 46 of the former Medical Service Act, in light of the fact that the act of attracting the patient by the medical institution and the medical personnel can be punished for the violation of Article 46 of the former Medical Service Act, unless there are special circumstances such as the provision of money and valuables to the patient or the actor in the process of attracting the patient, and the act does not constitute "induction of the patient" under Article 25(3) of the former Medical Service Act, and even if the act was performed through an employee who is not a medical personnel, it does not constitute a "indu."

According to the evidence revealed in the record, Defendant 1, the executive director of a medical institution (mutual omission) hospital, can find out the fact that Defendant 2, the head of the hospital, visited the public institution, organization, etc. to conduct health examinations at a lower price than the market. In that process, Defendant 1 cannot be seen as having received separate money and valuables from the medical institution (mutual omission) hospital. As such, Defendant 1’s act with the approval of the medical institution is not an act of an individual but an act of a medical institution, and it constitutes a case of attracting a patient by the medical institution itself. Thus, Defendant 1’s act with the approval of the medical institution is not an act of a medical institution, and thus, it cannot be deemed as a case of attracting a patient by the medical institution itself. Furthermore, in the process of attracting a patient by himself, money and valuables are not provided to the patient or Defendant 1, the specific actor, but rather, receiving a pre-paid payment from the patient. Moreover, this act does not constitute “inducing the patient’s license” under the same paragraph.

Nevertheless, the court below determined that Defendant 1’s act constitutes the act of introducing or arranging patients beyond mere publicity, and there is an error of law by misunderstanding the legal principles as to Article 25(3) of the former Medical Service Act, which affected the conclusion of the judgment.

4. Conclusion

Therefore, the judgment of the court 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.

Justices Lee Yong-woo (Presiding Justice)