Defendant

Defendant

Park Jae-sung

Attorney Jeon-hee et al.

Suwon District Court Decision 2005Ma221 delivered on October 20, 2005

The part of the judgment of the court below against the defendant is reversed.

Defendant shall be punished by a fine of KRW 2,000,000.

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.

1. Summary of grounds for appeal;

A. Summary of the first ground for appeal

The act of co-defendant stated in the facts charged in this case was a legitimate act within the scope permitted under the direction and supervision of a doctor, and even if there was no doctor's guidance or supervision, it does not constitute an unauthorized medical act as stipulated in Article 25 of the Medical Service Act, and as long as the act of co-defendant in the court below does not constitute an unauthorized medical act, the defendant is not guilty.

B. Summary of the second ground for appeal

Since co-defendants in the court below's decision constitutes a mistake that his act does not constitute a crime under the law, the liability shall be dismissed due to the mistake of law under Article 16 of the Criminal Act, and as long as the act of co-defendants in the court below is not punished, the defendant shall not be punished.

C. Summary of the grounds for appeal No. 3

Although the defendant ordered co-defendants of the court below to engage in unauthorized medical treatment or in collusion with co-defendants of the court below, it is wrong that the court below punished the defendant as co-principal of unauthorized medical treatment.

D. Summary of the grounds for appeal No. 4

In light of all the circumstances, the sentencing of the court below against the defendant is too unreasonable.

2. Determination

A. Determination on the first ground for appeal

First, with respect to whether Co-Defendant 1 committed an act within the permissible scope under the direction and supervision of the doctor, in full view of the statement at the health room, Nonindicted 1’s investigation agency and court of the original trial ( Nonindicted 1 stated that Co-Defendant 1 committed an exclusive medical act, such as diagnosis, treatment, prescription, etc. against himself/herself, and specifically stated the situation at that time), Nonindicted 2’s statement at the prosecutor’s office and court of the original instance, Nonindicted 3’s statement at the prosecutor’s office and court of the original court, the statement at the prosecutor’s office of the original court, the statement at the prosecutor’s office of the co-defendant in the original court, and the defendant’s statement at the prosecutor’s office, etc., it can be sufficiently recognized that Co-Defendant 1 conducted an unauthorized medical act by conducting independent medical examination, autopsy, refund, disinfection, and prescription against the patients who found obstetrician even though he/she did not intend to do so, and therefore, there is no reason to discuss the Defendant’s appeal on this part.

Next, as to the argument that the act of co-defendant in the court below constitutes an act within the scope of the license of a midwife permitted by law, it is only possible for a midwife to engage in assistance in child delivery and health and care guidance for pregnant women, women in childbirth, women in childbirth, and newborn babies, even though a midwife is a medical person under Article 2 of the Medical Service Act. As seen above, the act of co-defendant in the court below is a medical act beyond the scope of license and constitutes non-licensed medical act as stipulated in Article 25 of the Medical Service Act, so there is no reason to discuss the defendant's appeal on this part.

B. Judgment on the second ground for appeal

As seen above, considering that Co-Defendant 1 conducted self-medical treatment by means of independent diagnosis, autopsy, return disinfection, medical treatment, and prescription against the patients who found the father and the mother, it is difficult to deem that Co-Defendant 1's act was not a crime within the scope of duties as a midwife, and even if Co-Defendant 2 was mistaken for not a crime, it seems that the provision of law was interpreted as one of his own, and it does not constitute a case where Co-Defendant 2 is not punishable by mistake of law because it cannot be deemed that there is a justifiable reason in its judgment, and therefore, the defendant's appeal against this part is without merit.

C. Judgment on the third ground for appeal

In light of the fact that there is no direct evidence to acknowledge the fact that the defendant ordered Co-defendant to engage in an unauthorized medical practice between September 2004 and October 14 of the same year, or conspired with Co-defendant in collusion with the court below, and this case occurred at the time when the defendant was in a foreign country, and the defendant's employee's intention to resign from his own will to prevent the absence of the intention to retire from his own will, etc., it is difficult to deem that the defendant has ordered the act of unauthorized medical practice or a public offering. Thus, the defendant cannot be punished as co-principal of unauthorized medical practice.

Therefore, although the facts charged against the defendant in this case constitute a case where there is no proof of crime and thus should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, the judgment of the court below which found the defendant guilty of the facts charged shall be deemed to have erred

However, for the first time in the trial, the prosecutor tried to punish the defendant as joint penal provisions of the Medical Service Act with regard to the facts charged in this case, and applied for the modification of the indictment and applicable provisions of the Act and permitted by this court. Thus, since the subject of the trial of this court was different from the original court, the original judgment cannot be maintained any more in this respect.

3. Conclusion

Therefore, without examining the remaining grounds for appeal by the defendant, the part of the judgment of the court below against the defendant is reversed and it is decided as follows.

The Defendant is a doctor operating the “(name omitted) mountain father and woman” located in Ansan-si’s Dong-dong (number omitted). On September 30, 2004, the Defendant provided the above non-indicted 1 (the age of 27), who was an employee of the Defendant, with the diagnosis, postmortem examination, refund disinfection, and prescription, etc., nine times until October 14 of the same year, including the medical treatment by issuing the above medical examination, refund disinfection, injection treatment and prescription against the above non-indicted 1, who visited the above non-indicted 1, 22 (age of 51), 3 (age of 35), and 3 (age of 35), and issued the Defendant’s non-indicted 1’s non-indicted 1’s non-indicted 1’s medical treatment, treatment, disinfection, and prescription, etc., with respect to the same duties, from September 2004 to October 14 of the same year.

1. The statement of the witness Nonindicted Party 1 in the third trial record of the court below

1. Each statement made by the witness Nonindicted 2 and Nonindicted 3 in the fourth trial record of the court below

1. A protocol concerning the suspect examination of the accused;

1. Investigation protocol of the prosecution against co-defendant in the court below

1. Each prosecutorial statement concerning Nonindicted 2 and Nonindicted 3

1. Statement of the police statement of Nonindicted Party 1

1. Article applicable to criminal facts;

Article 6 (3), Article 25 (1), and Article 70 of the Medical Service Act

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

The summary of the violation of the Medical Service Act, which is the primary charge against the defendant, is the same as the corresponding part of the judgment of the court below, and as seen earlier, the above facts charged constitute a case where there is no proof of crime and thus should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, but as long as the court found the defendant guilty of a violation of the Medical Service Act, which is the ancillary

Justices Kim Tae-Gyeong (Presiding Justice)