(영문) 서울중앙지방법원 2013.8.22.선고 2013노1218 판결

The summary of the facts charged in this case is that the defendant is a doctor operating the 'E Hospital' in Seoul Central District DD Building 701, and the defendant was not only in office but also in office who participated in the diagnosis, diagnosis, treatment and nursing of infected persons after retirement, the defendant requested the above hospital to provide medical treatment, such as fatitis and fatise satise satise satise satise satise satise satise satise satise satise sate satise sate sate sate sate satise sate sate sate sate sate sate sate sate sate sate sate sate sate sate sate sate sate sat.

The lower court found the Defendant guilty on the facts charged of this case on the grounds that the aforementioned facts charged are sufficiently recognized according to the evidence duly examined and adopted.

2. Summary of grounds for appeal;

A. In order to be seen as a "person with a sense of infection" as stipulated in Article 7 of the Prevention of Acquired immunodeficiencydeficiency Diseases Act, it is not sufficient to say that the training has been conducted in the first screening test, and it is based on the premise that the second verification test has been completed and it has been finally determined whether the second verification test has been infected. The defendant in this case notified another medical person of the result of the first screening test before the result of the second verification test in the second verification test, and the judgment of the court below finding that the defendant had an incomplete intention to do so is in violation of the principle of no punishment without a law by interpreting or expanding the above provision disadvantageously to the defendant.

B. Fact-finding or misunderstanding of legal principles as to the grounds for illegality rejection

Even if it is recognized that the requirements of establishment are satisfied, in light of the overall circumstances of this case and relevant regulations, the management of infected persons in clinical trials, and the management of infected persons should pursue the purpose of protecting other patients and medical professionals along with appropriate medical care and confidentiality for infected persons, etc., the illegality of the defendant's act should be avoided as an act that does not violate social rules.

3. Judgment of party members

A. According to the evidence duly adopted and investigated by the lower court, the following facts can be acknowledged.

1) F is a person diagnosed to be infected with human immunodeficiency virus (HIV) around 2003 and reported to and administered by the head of the competent public health clinic in accordance with the relevant laws and regulations.

2) On January 1, 2012, 13, 2012, the F was diagnosed by the G Hospital’s doctor H with 's vision and 'compact weighted' disease, but H did not perform a letter operation. As such, H did not issue a written request for medical treatment stating the name of the E hospital operated by the Defendant, who was the motive of the university, to F, and issued a written request for medical treatment stating the name of the said disease, but up to that time, the F did not inform H of the fact that it was human immunodeficiency virus infection.

3) On January 14, 2012, F visited the Defendant to conduct a flight test, and the Defendant determined the date of the surgery on January 18, 2012, and instructed the nurse to conduct a blood test on F as one of the prosecutors before the surgery. Until that time, F did not inform the Defendant of the fact that she is human immunodeficiency virus infection infection.

4) On January 16, 2012, the Defendant was notified by the J Center, the institution requesting blood examination, of the result that the FHIV value high, and notified the F of the result of the above examination on the 17th day of the same month, and notified the F of the result of the above examination, and thus, the HIV value is not confirmed, so the process should be postponed for more than a week, and the F of this process must demand the implementation of the scheduled surgery, and the F of this demand the Defendant to refuse to perform the surgery. Although the request for medical treatment was made at the designated hospital, the Defendant did not inform the Defendant of the fact that he was infected with human immunodeficiency virus until then.

5) The Defendant anticipated that F will be issued a new medical treatment request to go to another hospital. On January 17, 2012, the Defendant informed H of the same content as the facts charged by calls to H, and on the other hand, F was issued a new medical treatment request by finding H on the same day.

6) On January 16, 2012, the J Center, which was requested by the Defendant to conduct a blood psying test on blood, requested the KResearch Institute to conduct a medical examination on the 18th of the same month, and the K Research Institute notified the K Research Institute of the determination on the "training" around the 25th of the same month, and the Center notified the Defendant of the determination on the "training" at the above Center at around the 30th of the same month, while notifying the Defendant of the results of the examination, the Center cannot exclude the "training" (if the results of the examination that must be the first voice are so poor that they are being trained, they must be confirmed as a result of the Western-Blot Act).

7) Around February 2012, F had been treated as 'non-serious scisfy' by another hospital on the 10th day of the same month, and again sought H, which was issued a new written request for medical treatment on the 10th day of the same month, but on the same day, H again demanded to delete the part of 'Pleseseche Poolgy' as stated in the said written request for medical treatment. H issued a new written request for medical treatment that deleted the said part, but up to that time, F did not inform the Defendant or H of the fact that she was infected with human immunodeficiency virus.

B. According to the above facts, it can be sufficiently recognized that FIF infection 2 was infected (see Article 2 subparag. 1 of the Act). Furthermore, as to whether the Defendant who provided medical treatment for infection 2 intentionally leaked, the following facts recognized by the records of this case are as follows: ① On January 17, 2012, the date on which the Defendant informed HH of the facts stated in the instant facts charged, i.e., the HIV complaints and the results of the examination conducted by the J Center on the 30th day of the same month, and the FIF infection 1, and the FIF 2, the Defendant did not inform the Defendant of the fact that the Defendant was infected 1, FIF infection 3, and the FIF 2, the Defendant did not have any other knowledge of the results of the examination that “the results of the examination conducted by the KIF 1, 200,” or the results of the examination conducted by the KIF 1, 201.

4. Conclusion

Therefore, the judgment of the court below which found the defendant guilty of the facts charged of this case is erroneous in the misunderstanding of facts or misunderstanding of legal principles, which affected the conclusion of the judgment, and thus, the defendant's appeal is with merit. Thus, the judgment below is reversed and the judgment below is

As seen earlier, the facts charged in this case constitute a case where there is no evidence to prove the facts charged in this case, and thus, the facts charged in this case constitutes a case where there is no evidence to prove a crime, and thus, a not guilty verdict is rendered pursuant to the latter part of

It is so decided as per Disposition for the above reasons.