Defendant

Defendant

Maximum salary;

Attorney Kim Hong-sub, Counsel for the plaintiff-appellant

Seoul Eastern District Court Decision 2010Gohap10 Decided April 9, 2010

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 300,000.

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.

Of the facts charged in the instant case, the charge of violating the Medical Service Act is acquitted.

The summary of the judgment of the defendant's acquittal shall be disclosed.

1. Summary of grounds for appeal;

A. Legal principles

Article 27(1) of the Medical Service Act provides that "medical persons shall not perform medical acts other than those licensed." It does not clearly stipulate the scope and limitation of the license of doctors or oriental medical doctors. The IPL (or luminous fraud) used by the defendant is a medical device that applied and developed the traditional light from the past in a mechanical manner after investigating the light from the past in a pathology and treating the skin disease in a mechanical manner. Thus, the method of treating the skin disease such as the dye cannot be deemed as the principle of oriental medicine since it constitutes the oriental medical treatment in accordance with the principle of oriental medical science. Since IPL uses lights similar to solar energy, it cannot be deemed as the principle of oriental medical science. In the academic circles of the Republic of Korea, which are familiar with the existing Rabalian law and the radyer, there are no specific provisions on the scope and limitation of license of doctors or oriental medical doctors. In addition, even though the Korean Medical Service Act’s research and application of oriental medical devices including the Korean Medical Association and the Korean Medical Association, the lower court consistently conducted research and application of the Korean Medical Association and the Korean Medical Association.

B. Violation of the principle of no punishment without law

The court below did not have a clear standard for determining whether a specific medical device is double-band-band-band-band-band-band-band-band-band-and-band-band-band-band-band-band-band-band-band-band-band-band-band-band-band-band-band-band-band-band-band-band-band-band-band-band

(c) Mistake in law;

At the time of the defendant's treatment using IPL, there has been no authoritative interpretation of the Ministry for Health, Welfare and Family Affairs on September 18, 2009 concerning the use of IPL, and the Korean Medical Doctor Association and related academic societies have used the IPL as a medical device that is usable by Korean medicine doctors, so the defendant who has been recognized as being based on the principle of oriental medicine since the IPL had been educated as a medical device that is available by Korean medicine doctors, is recognized as being not a crime as permitted by the Ministry for Health, Welfare and Family Affairs as a medical treatment act that is a kind of medical device using the mining line, such as an open-line medical device already permitted by the Ministry for Health, Welfare and Family Affairs. Therefore, the defendant's act should be dismissed as a mistake in law.

D. Unreasonable sentencing

The court below's punishment (700,000 won of fine) against the defendant is too unreasonable.

2. Determination

A. Summary of this part of the facts charged

No person other than a medical person shall perform medical practice, and no medical person shall perform any medical practice other than that licensed.

From June 2006 to September 2009, the Defendant, an oriental medicine doctor, purchased and installed one of the above medical devices in 100 patients, including the non-indicted 1, 100 patients, etc., who were patients suffering from the 100 patients suffering from 10 persons, including the non-indicted 1, a patient suffering from 30 patients suffering from 10 patients using the IPL.

In this respect, the defendant performed medical acts other than those licensed.

B. The judgment of the court below

The court below found the defendant guilty on this part by taking full account of the following evidences.

C. Judgment of the court below

(1) Article 2(2)1 of the Medical Service Act provides that “A doctor’s duty is to provide medical treatment and health guidance.” Article 2(2)3 of the same Act provides that “A doctor’s duty is to provide oriental medical treatment and health guidance.” Article 27(1) of the same Act provides that “no person other than a medical person is allowed to provide medical treatment and no medical person is allowed to provide medical treatment except licensed medical treatment.” In addition, in relation to the scope of license of a doctor or oriental medical doctor, “medical treatment” or “her oriental medical treatment” is not specifically provided. However, in determining whether a specific act constitutes oriental medical treatment, it shall be determined in light of social norms by taking into account specific matters, such as the purpose of the Medical Service Act, the relevant provisions related to specific medical treatment, the specific purpose of medical treatment, the purpose of medical treatment, and how only an oriental medical doctor can provide medical treatment or not.” Thus, the pertinent medical treatment act should be determined in accordance with academic principles.

(2) According to the records, it is recognized that the Defendant, an oriental medical doctor, installed one IPL for the treatment of skin diseases, such as miscellaneous removal, from around June 2006 to around September 2009, and provided treatment for 10 patients, including non-indicteds. Meanwhile, the Ministry for Health, Welfare and Family Affairs, on February 5, 2001, deems it difficult to clearly distinguish the treatment method and treatment method from the license of oriental medical doctor depending on the recent development of modern medical science, on the following grounds: “The treatment method and treatment method should be determined on the basis of the treatment method and treatment method of the specific medical device as well as on the basis of the treatment method and treatment method that can not be determined on the basis of the current theoretical basis; it is difficult to determine that the specific medical device can be used at a low level or on the basis of the current theoretical basis; thus, it is difficult to determine that the treatment method and treatment method should be used by an oriental medical doctor based on the aforementioned theoretical basis.”

(3) Ultimately, the determination of whether the use of IPL belongs to the scope of license of an oriental medical doctor should be made depending on whether it is based on the oriental medical principle. In light of the foregoing, IPL is used as a tool to gather light generated from discussions and lamps similar to solar light and to conduct intermittent surveys on the skin of the human body. As medical devices registered with the Korea Food and Drug Administration as the name of “luminous type fraud,” it appears that the method of using the light is based on the operating principle such as red-ray treatment equipment or radying treatment equipment, and it appears that the method of using the light is widely used in the blurgical method (i.e., e., e., e., blurgical cherthic cherthic cheric cheric cheric cheric cheric cheric cheric cheric cheric cheric cheric cheric cheric cheric cheric chericheric cheric cheric cherichericul.).

(4) The quantity of medicine is based on scopic and scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic s

However, the Defendant’s use of the IPL in this case is not for the purpose of the external treatment of the disease caused by the patient’s skin (the removal is the representative of the removal), but rather for the purpose of treating such disease by using light traditionally released from the oriental medicine and treating it as the string of the successful bid caused by the balanced collapse of human body. Ultimately, the use of IPL, which is performed at one of the instant medical institutions, can be concluded to stimulate the successful bid and enhance the blood behavior by using modern scientific devices to treat the disease.

(5) Meanwhile, the Korean Medical Association and other relevant academic societies appear to have used IPL for the treatment of skin diseases, such as domination, in a part of the past, and have continued to educate the use of equipment while conducting a lot of research and presentation on the treatment using IPL in the Korean Medical Association and other relevant academic societies.

(6) The prosecutor bears the burden of proving the facts charged in a criminal trial, and the conviction must be based on the evidence of probative value, which makes the judge sure that the facts charged are true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is doubt of guilt against the defendant, the interest of the defendant should be judged (see Supreme Court Decision 2002Do5662, Dec. 24, 2002, etc.). The facts that the IPL of this case used by the defendant is not based on the oriental medical theory should be proved by the prosecutor. In full view of the above circumstances, there is insufficient evidence to acknowledge that the IPL of this case was not based on the oriental medical theory, and there is no other evidence to acknowledge this differently [In addition, even if a medical device was based on the Western science (such as physical science and biology), it can not be used in the oriental medical science merely because it had been established in the development of the modern medical science.

(7) If so, the court below should have pronounced innocence pursuant to the latter part of Article 325 of the Criminal Procedure Act because this part of the facts charged constitute a case where there is no proof of a crime. However, the court below erred by misapprehending the legal principles as to the act of oriental medicine treatment and by misunderstanding facts, which affected the conclusion of the judgment, and the defendant's assertion pointing this out

3. Conclusion

Therefore, the part of the judgment of the court below as to the violation of the Medical Service Act due to non-licensed medical acts cannot be reversed, and as long as the court below rendered a single sentence as concurrent crimes under the former part of Article 37 of the Criminal Act, this part of the judgment of the court below cannot be reversed. Thus, without examining the remaining arguments of the defendant, the judgment of the court below is reversed in its entirety pursuant to Article 364 (6) of the Criminal Procedure Act, and the remaining crimes, which

A medical person shall prepare medical records, etc. and record the matters and opinions concerning his/her medical practice in detail, and affix his/her signature thereto.

1. Nevertheless, around April 9, 2008, the Defendant: (a) at the “○○○○○○○○○○○○○○○○○”)’s meeting of the Defendant’s operation located in Seongdong-gu Seoul ( Address omitted); (b) provided medical treatment to the Nonindicted Party (here 43 years old); (c) did not record the content of the medical treatment for the patient, and did not sign the Defendant’s name.

2. On May 20, 2008, the Defendant did not record the contents of the medical examination and treatment of the Nonindicted Party to the above patient at Hanwon, and did not sign the Defendant’s signature.

1. The defendant's statement on the second trial of the court below;

1. Police suspect interrogation protocol of the accused (2009 punishment No. 67832);

1. A written accusation and a written statement;

1. Medical records;

1. Article applicable to criminal facts;

Articles 90 and 22(1) of the Medical Service Act

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

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

Of the facts charged in this case, the summary of violation of the Medical Service Act due to non-licensed medical acts is as shown in the above 2. A. This constitutes a case where there is no proof of a crime as seen in the above 2.c., and thus, the judgment of innocence is rendered under the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment of innocence against the defendant under Article 58(2) of the Criminal Act is announced in accordance with the above

Judges Woo-won (Presiding Judge) and Full-time vocational training room