The defendant's appeal is dismissed.

Summary of Grounds for Appeal

A. The act of entering the facts charged by the defendant in violation of the Act on Special Measures for the Control of Public Health Crimes (an illegal medical person) shall not be deemed an act of engaging in medical practice for the purpose of profit-making in violation of the Act on Special Measures for the Control of Public Health Crimes.

B. The sentence imposed by the lower court (one year of imprisonment, two years of suspended execution, and fine of 50,000 won) is too unreasonable.

2. Determination

A. "Profit-making purpose" as referred to in Article 5 of the Act on Special Measures for the Control of Public Health Crimes as to the argument of misunderstanding legal principles refers to the purpose of obtaining wide economic benefits (see Supreme Court Decision 2009Do4783, Oct. 29, 2009, etc., which held to the same effect with respect to Article 5 of the former Act on Special Measures for the Control of Public Health Crimes (amended by Act No. 8366, Apr. 11, 2007, etc.).

In fact, not only the case where the medical practice has been conducted continuously but also the case where the medical practice has been conducted with the intention of repeating the medical practice falls under this.

(see, e.g., Supreme Court Decisions 88Do1896, Jan. 10, 1989; 97Do354, May 23, 1997). Where a physician allows a nurse to participate in medical practice, the medical practice is performed under the responsibility of the doctor, and the nurse is merely an assistant.

Where a nurse provides “medical assistance,” he/she shall be provided with all acts, but he/she shall not be present at the site and shall not be provided with guidance and supervision at all times. As such, there may be sufficient cases where a physician provides general guidance and supervision without having to attend the site of assisting medical treatment. However, such acts may be performed at his/her own initiative, and the physician may instruct or delegate part of the act to assist the nurse, taking into account the nature, risk, etc. of the medical act.