[1] Whether a doctor’s act of inception constitutes “medical practice outside the licensed one’s license” (affirmative)

[2] In a case where Defendant (a doctor) was indicted for violation of the former Medical Service Act by committing “medical acts other than those licensed,” on the ground that he/she committed an invasion upon his/her patients from a medical clinic outside the prison operated by himself/herself, the case holding that the judgment below which found Defendant not guilty on the ground that the Defendant’s act is highly likely to constitute an invasion on the part of a oriental medical doctor

[1] The term “here-medical treatment” means “prevention or treatment of a disease based on traditional Korean medicine from our pre-feit,” which is performed only by herb doctors in accordance with the relevant provisions of the Medical Service Act, and such an inception constitutes “a medical treatment for the prevention, mitigation, and treatment of a disease by intrusion,” and a doctor’s above inception constitutes “a medical treatment for the prevention, mitigation, and treatment of a disease by intrusion.

[2] In a case where Defendant (a doctor) was prosecuted for violation of the former Medical Service Act (amended by Act No. 11252, Feb. 1, 2012) on the ground that he/she performed a medical act other than the licensed one by putting his/her invasion upon Party A and Party B, the case holding that the lower court erred by misapprehending the legal principles as to the Defendant’s act of aggression on the ground that the Defendant’s act was included in the part of Party A’s Mama at the time when he/she had been placed on a lot of 10 beds, etc. at the center of the central part of Party B’s He/she, and that there was no difference between the invasion and ordinarily used in the invasion, and that the part of Party B’s be placed on the part of Party B’s bed was a satise and the part of Party B’s bed constitutes a satise and satise, etc., which is an ordinary surgery.

[1] Articles 2(1) and 2(2)1 and 3, 5, 27(1), and 87(1) of the former Medical Service Act (Amended by Act No. 11252, Feb. 1, 2012); / [2] Articles 27(1) and 87(1)2 of the former Medical Service Act (Amended by Act No. 11252, Feb. 1, 2012)

[1] Supreme Court Decision 2007Du18710 Decided May 13, 201

Defendant

Prosecutor

Law Firm LLC, Attorneys Lee Woo-soo et al., Counsel for the defendant-appellant

Seoul Southern District Court Decision 2013No335 decided June 7, 2013

The non-guilty part of the judgment of the court below is reversed, and that part of the case is remanded to the Seoul Southern District Court Panel Division.

The grounds of appeal are examined.

1. Under the former Medical Service Act (amended by Act No. 11252, Feb. 1, 2012), a medical person refers to a medical doctor, herb doctor, etc. licensed by the Minister of Health and Welfare (Article 2(1)); a medical doctor’s mission is to administer medical treatment and provide guidance for health, and an oriental medical doctor’s mission is to administer oriental medical treatment and provide guidance for health based on oriental medicine (Article 2(2)1 and 3); a person who intends to become a medical doctor or oriental medical doctor shall obtain a license from the Minister of Health and Welfare after he/she graduated from a university, college, or specialized graduate school specializing in oriental medical science (Article 5); and a person, other than a medical person, shall not perform medical practice; and a person who violates this provision shall be subject to criminal punishment (Article 87(1)).

As such, the former Medical Service Act provides a dual medical system that prohibits medical doctors and oriental medical doctors from performing medical acts other than those licensed by each of them, with equal qualifications and license, so that oriental medicine can develop independently from Western medicine so that the public can enjoy medical benefits from the development of oriental medicine as well as Western medicine. On the other hand, in cases where doctors and oriental medical doctors receive systematic education in their respective areas and perform medical acts beyond the verified scope of expertise and skills related to relevant medical treatment from the State, they are to prevent risks that may occur to human life, body, or public health.

However, there is no provision stipulating the contents of the licensed medical practice by a doctor, herb doctor, etc. or providing the criteria for classification thereof. Thus, whether a specific medical practice by a doctor or herb doctor constitutes “medical practice other than the licensed one” should be determined reasonably in light of social norms by comprehensively taking into account the following factors: (a) legislative purpose of the relevant medical practice system; (b) legislative provisions and purport of the relevant medical practice; (c) academic principles which form the basis of the relevant medical practice; (d) details and purpose of the relevant medical practice; (e) how the relevant medical practice can be performed; and (e) whether the relevant medical school’s curriculum or national examination at a medical college or college, etc. (see Supreme Court Decision 2010Do10352, Feb. 13

On the other hand, medical practice is “the act of preventing or treating a disease, which is traditionally brought from our pre-feit,” and only an oriental medical doctor can do so in accordance with the relevant provisions of the Medical Service Act as seen earlier, and the act of treating the disease constitutes “the act of preventing, relaxing, and treating the disease by taking advantage of the invasion,” and the act of treating the above infeit constitutes a case where a doctor performed the above infeit outside of the licensed medical practice (see Supreme Court Decision 2007Du18710, May 13, 201).

2. In full view of the circumstances stated in its reasoning, the court below affirmed the judgment of the first instance court which acquitted the Defendant of this part of the charges on the grounds that it is difficult to conclude that the Defendant, a medical doctor, alone with the evidence submitted by the prosecutor, was an invasion on the part of Non-Indicted 1, on the part of the Defendant’s medical clinic, and on May 13, 2010, and May 14, 2010, and May 15, 2015, and on May 28, 201, Non-Indicted 1, on the part of Non-Indicted 2, on the part of Non-Indicted 2, and on the part of June 2, 201 and June 2, 201, on the ground that there is no other evidence to acknowledge this.

3. However, it is difficult to accept the above determination by the lower court.

According to the evidence duly adopted and examined by the court below and the court of first instance, the defendant, at the time, 20 parts, 2 parts, 2 parts, 2 parts, 2 parts, and 10 parts, 10 parts, centering on the center of the central part of the Helirii, Non-Indicted 2, did not differ from those ordinarily used in the course of the course of the course of the course of the course of the course of the course of the course of the course of the part. The defendant seems to fall under the part of the part ordinarily operated in the course of the course of the course of the course of the course of the course of the part of Non-Indicted 1, and was included in the part of the part.

Examining the above legal principles in light of the above, there is a lot of room for the Defendant’s above act to constitute an invasion, which is a single medical practice.

Nevertheless, the lower court upheld the first instance judgment that acquitted the Defendant of this part of the facts charged on the grounds that it is difficult to readily conclude that the above act constituted an act of aggression, which is a single medical practice, solely based on the circumstances indicated in its reasoning. Therefore, the lower court erred by misapprehending the legal doctrine on the act of aggression, which is a single medical practice, and failing to exhaust all necessary deliberations,

4. Therefore, the non-guilty part of the judgment below is reversed, and that part of 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 on the bench.

Justices Ko Young-han (Presiding Justice)