Defendant 1 and three others

Defendants

Kim Hong-tae

Law Firm Taeap, Attorneys Go Jong-soo et al.

Seoul Eastern District Court Decision 2008 Godan2785 Decided August 6, 2009

The part of the judgment of the court below against the defendant 2, 3, and 4 shall be reversed.

Defendant 2 shall be punished by imprisonment for one year and a fine of 1,00,000 won.

When Defendant 2 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.

Defendant 3 and 4 shall be acquitted respectively.

Defendant 1’s appeal is dismissed.

1. Summary of grounds for appeal;

A. Error of mistake

1) Defendant 1

Defendant 1, around March 20, 2003, registered health food with the Gangdong-gu Seoul Metropolitan Government Office and engaged in the manufacturing and selling business of health food with the trade name of Nonindicted Co. 1, and there is no side effect on Defendant 1, including K-1, manufactured and sold by Defendant 1, by mixing with natural materials, such as bean, bean, and bean,. Defendant 1, not only provided patients with medical treatment but also provided food after notifying patients as health assistance food that is helpful for medical treatment. Defendant 1’s use of sacrine was intended to confirm whether patients have suffered gas, and the preparation of clinical log does not constitute medical treatment at will. Accordingly, it cannot be deemed that Defendant 1’s use of sacrine was made arbitrarily in mind of whether there was any harsh side effect. Accordingly, the judgment of the court below that found Defendant 1 guilty of the facts charged against Defendant 1, which affected the conclusion of the judgment.

2) Defendant 2

Defendant 2: (a) as Defendant 1, who was attached, was removed from the rooftop on December 2007, and tried to commit the act of having a elb and the right knee with inconvenience; (b) there was no participation in the instant case before December 2007; and (c) there was no perception that Defendant 2 attempted to commit the act of her own, and there was no perception that Defendant 2 performed medical treatment or treatment for commercial purposes. Defendant 2 only assisted Defendant 1’s receipt and guidance by those who found Defendant 1, and attempted to perform the work of her own, by measuring blood pressure or physical weight; and (d) Defendant 2 cannot be held liable for co-principal liability. Accordingly, the lower court erred by misapprehending the facts that found Defendant 2 guilty of all the facts charged, thereby affecting the conclusion of the judgment.

3) Defendant 3

Defendant 3, as Defendant 1’s wife, provided cooperation in manufacturing health-oriented food by cultivating environment-friendly plants, such as bean, such as bean, in accordance with the direction of Defendant 1, and making it possible to do so, and did not know all of the medical practice. Therefore, the lower court that found Defendant 3 guilty of all the facts charged against Defendant 3, erred by misapprehending the fact and adversely affecting the conclusion of the judgment.

4) Defendant 4

Defendant 4 had been provided with foods produced by Defendant 1 free of charge and been suffering from all the patients, such as Rose of Sharon, etc. after eating them. Since then, Defendant 4 introduced Defendant 1 to the open applicants in collusion with Defendant 1, and there was no fact of participation in this case.

B. Unreasonable sentencing

The sentence of the lower court (Defendant 1: 3 years of the stay of execution and 7 million won of fine in the month of imprisonment for a year and June; 2 years of probation; 3 million won of imprisonment for a year and fine for a year; 3 million won of imprisonment for a year; 2 years of the stay of execution and 1 million won of fine in the year of imprisonment for a year; 4: Imprisonment for a year, 2 years of the stay of execution and 1 million won of fine; 2 years of the stay of execution and 1 million won of fine) is too unreasonable.

2. Determination

A. Judgment on the defendants' assertion of mistake of facts

1) Defendant 1

Medical practice is not only performing diagnosis, autopsy, prescription, medication, surgery, etc. based on medical expertise but also performing acts such as diagnosis, diagnosis, medication, surgery, etc. with experience and function based on medical expertise. Supreme Court Decision 2007Do531 Decided May 14, 2009

If a medical person with medical expertise fails to perform his/her duties, it includes acts likely to cause harm to human life, body, or public health. Supreme Court Decision 2003Do2903 Decided September 5, 2003

What constitutes a medical practice should be determined in light of social norms in light of the purpose of the Medical Service Act.

According to the health records and records of this case, ① Defendant 1 had been working for the production of health assist foods with natural materials from around 2002. On March 20, 2003, Defendant 1 had registered health food with the Gangdong-gu Seoul Metropolitan Government Office and had engaged in the manufacturing and selling business of health food with the trade name of Nonindicted Incorporated Company 1. ② The substances, such as K-1 or K-14, which are “mor” manufactured and provided by Defendant 1, are generally accepted as follows: natural materials, such as throgle, spath, spath, spath, spath, spathr, spathr, spathr, spathr, spathr, etc.; ③ the fact that Defendant 1 had been working for the patent application for his own food, ④ the substance that Defendant 1 had not received some money from the patients.

However, in light of the following circumstances and evidence duly admitted by the court below, i.e., Defendant 1’s act of using the signboard that “○○ Cancer Research Institute” was placed on the office door and viewed as an act of researching and treating cancer patients. From patients, K-6, which was made on the basis of beer’s disease, called “unexplosion”, is called as “unexploitation”. On the other hand, Defendant 1’s act of using the phrase “exploitation of closion”, which means that she would not have been treated for patients, and that she would not have been treated for patients, and that she would not have been treated for patients, and that she would have been treated for patients, and that she could not have been treated for patients, and that she would have been treated for patients, such as those she could have been treated for patients, and that she could not have been treated for patients, and that she would have been treated for patients by using her oral prescription.”

Therefore, Defendant 1’s assertion that Defendant 1’s act is not a medical practice is without merit.

2) Defendant 2

Article 30 of the Criminal Act provides that two or more persons jointly commit a crime. In order to establish a joint principal offender, the crime is required to have been committed through functional control by a joint doctor, which is a subjective element, through a functional control by the joint doctor, which is an objective requirement. The intent of joint process is to move to the execution of one’s own intent by using another’s act, which is one of the joint intent, by means of a joint intent. Supreme Court Decision 2001Do4792 Decided November 9, 2001.

First of all, as to whether Defendant 2 conspireds with Defendant 1 to commit each of the crimes of this case, it can be recognized that Defendant 2 conspired with Defendant 1 and committed each of the crimes of this case under the following circumstances, which can be recognized by comprehensively taking account of the evidence duly examined and adopted at the court below: (i) Defendant 2 was “○○ Cancer Research Institute”; (ii) Defendant 2 was in the office and was in the body of his aid and patients; (iii) Defendant 1 was in the body of blood pressure and body of his aid and patients; and (iv) Defendant 2 was in the process of preparing a set; and (v) Defendant 2 was in the process of treating patients after the diagnosis of the patients by Defendant 1; and (v) Defendant 2 was in the process of dividing them to the patients. Thus, Defendant 2 should be held liable for joint principal offense.

However, Defendant 2 argued that the above work had been performed from the trial to December 2007, and that there had been no similar work before that time, and that Defendant 2 stated that Defendant 2 had been involved in the medical practice after Defendant 1 was injured due to an accident, and Defendant 2 stated that “I attempted to measure the weight of body by taking the degree of his arms and knee kne-sing,” and Defendant 2 stated that “I attempted to do so by taking part in the act as described in the facts charged,” and that Defendant 2 was included in the act of violation of the Game Industry Promotion Act around May 23, 2007. In light of the fact that Defendant 2 was included in the act of violation of the Act on Promotion of Game Industry around December 23, 2007, the evidence submitted by the prosecutor alone is insufficient to acknowledge that Defendant 2 had committed the act as described in the facts charged before December 207, and there is no other evidence to support this otherwise.

Therefore, Defendant 2’s appeal is partially justified.

3) Defendant 3

According to the records, it is recognized that Defendant 3 had performed a work, such as cultivating bean, packing the bean, and packing it in the bean in accordance with the direction of Defendant 1. However, Defendant 3, as Defendant 1’s wife, basically as Defendant 1’s wife, attempted to manufacture drugs as above; ② Defendant 3 did not directly act for patients; and Defendant 1 did not stay in the place where the patient was treated and treated; ③ Defendant 1 manufactured health foods from around 2002, and sold them from around March 20, 203, and ④ Defendant 3’s “mor” prepared by Defendant 3 was composed of natural materials, but there was no evidence to acknowledge that Defendant 3 had been functionally controlled the crime of this case based on the mere fact that Defendant 3 manufactured drugs used in his medical practice according to Defendant 1’s instructions, and that Defendant 3 did not have any functional control over the crime of this case.

Therefore, the facts charged against Defendant 3 constitute a case where there is no proof of criminal facts, and the appeal by Defendant 3 pointing this out is with merit.

4) Defendant 4

According to the records, it is acknowledged that Defendant 4 was born to be the first-class and the second-class infection and received medical treatment on or around June 2007, Defendant 1; Defendant 4 introduced Defendant 1 to the surrounding persons, including Nonindicted 8, etc.; Defendant 4 attempted to measure the blood pressure of the patients several times in such a case; however, Defendant 4 did not receive the introduction fee from Defendant 1 or the patient introduced; ② Defendant 4 did not leave any day while living in Defendant 1’s office; Defendant 4 introduced Defendant 1 to other patients; Defendant 4 did not have any functional control over the crime of this case; Defendant 4 also did not have any evidence to acknowledge that the crime of this case was committed by Defendant 4; Defendant 4 did not have any functional control over the crime of this case, as seen earlier, even though Defendant 4 introduced Defendant 1 to the other patients.

Therefore, the facts charged against Defendant 4 constitute a case where there is no proof of criminal facts, and the appeal by Defendant 4 pointing this out is with merit.

B. Determination on Defendant 1’s assertion of unreasonable sentencing

Considering that Defendant 1 was living without any particular criminal record in the past, that the instant medicine was composed of natural materials, and that there was no significant side effect, and that there was a person with good health conditions through the medicine. However, in light of the contents of the signboards, etc., which were caused by Defendant 1’s office as seen earlier, and the talks that Defendant 1 had committed against the patient, etc., the crime of this case is highly likely to be committed. In addition, considering all the circumstances that form the conditions for sentencing, including the Defendant’s age, character and behavior, living environment, motive, means and consequence of the crime, etc., the sentence of the lower court is too unreasonable.

3. Conclusion

Therefore, since the appeal by Defendant 2, 3, and 4 is well-grounded, the judgment of the court below is reversed pursuant to Article 364(6) of the Criminal Procedure Act, and the appeal by Defendant 1 is ruled as follows. Since the appeal by Defendant 1 is without merit, it is dismissed in accordance with Article 364(4) of the Criminal Procedure Act. It is so decided

As the representative of the non-indicted 1 corporation, the defendant 1 puts up the signboard called "○○ Cancer Research Institute" from the patient, provides the patient with medical treatment, provides the patient "K-1" or "K-14", and the defendant 2, as the children of the defendant 1, received the patient, provided guidance, and measured blood pressure and body weight. On July 8, 2004, the defendant 2 was sentenced to 10 months of imprisonment with prison labor for the violation of the Act on the Control of Narcotics, etc. (fence) at the Seoul Western District Court on March 15, 2005, and completed the execution of the sentence in the Jeonju Prison on March 15, 2005.

1. Defendant 2 in collusion with Defendant 1 during the period from December 2007 to June 14, 2008, as indicated in the ○○ Cancer Research Institute Office of Nonindicted Company 1, located in Gangdong-gu, Gangdong-gu, Seoul, for the purpose of medical practice by receiving a total of 20,100,00 won from total 13 persons for profit-making purposes, including the name of medicine (K-1), K-2, K-3, K-4, K-7, K-7, K-9, and K-10, and the preparation of clinical papers, including the preparation of entrance fees and medical treatment fees, and then receiving a total of KRW 20,10,00 from total of 13 persons for profit-making purposes.

2. From December 2007 to July 17, 2008, Defendant 2, in collusion with Defendant 1, filed a medical practice with the ○○ Cancer Research Institute Office of Nonindicted Company 1, located in Gangdong-gu, Gangdong-gu, Seoul, for the purpose of diagnosing and diagnosing the Cheongjin-gu to patients suffering from the ○○ Cancer Research Institute Office of Nonindicted Company 1, located in Gangdong-gu, Gangdong-gu, Seoul, and then made a medical practice with 12 persons, other than medical personnel, as described in the name of medicine that was manufactured by the method of fire, “K-2,” “K-3,” “K-4,” “K-6, K-7, K-9, “K-11,” “K-11,” and “K-14,” as described in the attached list 2-13 to 24, including the preparation of clinical days.

1. The defendant 2's legal statement in the original judgment and the trial court

1. Each legal statement of Non-Indicted 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11 of the witness of the court below

1. Statement on Nonindicted 6, 7, 8, 2, 3, 4, 5, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 9, 27, 28, 29, 30, and 31 of the police preparation;

1. Entry of each protocol of seizure and the list of seizure;

1. A criminal investigation report (in addition to the victim Nonindicted 8’s medical certificate and a confirmation of release from confinement);

1. Records before judgment: Records of criminal records;

1. Article applicable to criminal facts;

Article 5 of the Act on Special Measures for the Control of Public Health Crimes, Article 27 (1) of the Medical Service Act, Article 30 of the Criminal Act (a person engaged in medical practice for profit-making purposes), Article 87 (1) 2 and Article 27 (1) of the former Medical Service Act (amended by Act No. 9906 of Dec. 31, 2009), Article 30 of the Criminal Act (a person who is not a medical person and engages in medical practice)

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act (limited to the proviso to Article 42 of the Criminal Act for a violation of the Act on Special Measures for the Control of Public Health Crimes)

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38(1)2, Article 50, and the proviso of Article 42 of the Criminal Act

1. Discretionary mitigation;

Articles 53, 55(1)3, and 55(1)6 of the Criminal Act (The following consideration of favorable circumstances among the reasons for sentencing):

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

Defendant 2 denies the commission of the crime in the trial and recognized that there are parts of his wrongness, against them, and against them, the degree of participation is not significant. However, above all, Defendant 2’s crime of this case was committed during the period of repeated offense, and thus, it is not possible to suspend the execution of imprisonment. In full view of all the circumstances, including Defendant 2’s age, character and behavior, living environment, motive, means and consequence of the crime, and the circumstances after the crime, etc., the sentence shall be mitigated and determined as ordered.

1. Defendant 3, 4

Of the facts charged in the instant case, Defendant 3 is Defendant 1’s wife, and Defendant 4 manufactured medicines such as “K-1” or “K-14,” and Defendant 4 took measures such as blood pressure, etc. of patients by introducing patients according to the direction of 3,00,000 from October 206 to June 14, 2008. The Defendants conspired with Defendant 1 and 2 with 3,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,000,00,00,00.

2. Defendant 2

From around December 207, the summary of the charges against Defendant 2, Defendant 1, as the representative of Nonindicted Incorporated Company 1, called the head of ○○ Cancer, provides patients with medical treatment, and Defendant 2, as the children of Defendant 1, provides guidance, and measure blood pressure and weight. Defendant 2, at the Seoul Western District Court, he was sentenced to 10 months of imprisonment for the violation of the Act on Special Measures for the Control of Narcotics, etc. (fence) and entered the sentence of 10 to 200 on March 15, 2005, “No more than 4,” and “No more than 1,000, 1,000 [Attachment 1] to 2,00,000,” and “No more than 2,000,000,000 won,” and “No more than 3,000,000 won,” and Defendant 2, in collusion with Defendant 1 to November 2, 2007.”

【Crime Disturbing Table】

Judges Lee Jae-chul (Presiding Judge)