(영문) 대법원 2009.9.24.선고 2009도1337 판결

The court below held that the act of this case by Non-Indicted 1, a dental sanitarian, was a part of dental treatment, which is part of the treatment act that requires experience and function based on medical expertise, and it does not change solely on the ground that the above contact is a temporary contact, not a complete contact.

In light of the relevant legal principles and records, the above judgment of the court below is just, and there is no violation of the rules of evidence or misapprehension of the legal principles as to medical practice, as otherwise alleged in the ground of appeal.

In addition, the Medical Technicians, etc. Act has a medical engineer system and allows the medical engineer to perform part of the medical practice within the limited scope of medical personnel. As to the specific part of the medical practice restricted to allow only medical personnel, which is less likely to cause harm to human life, body, or public health, the pertinent act constitutes a non-licensed medical practice if the medical engineer obtained knowledge and experience in the risk, etc. that may cause harm to human life, body, or public health, and granted a license to a person recognized to have the ability to confirm the reaction of human body due to the relevant medical practice in the specific field, determine whether there is anything wrong, and cope with the situation, and allow him to perform the medical practice within the limited scope of the doctor’s guidance (see Supreme Court Decision 2002Do2014, Aug. 23, 2002). Accordingly, even if the medical engineer is a medical technician, if the medical doctor exceeded the scope and limitation of duties provided for in the Medical Technicians, etc. Act and the Enforcement Decree of the same Act, even if so ordered, it constitutes a non-licensed medical practice (see Supreme Court Decision 2007Do4653.

In this regard, the court below is just in holding that the act of Non-Party 1, who is a dental sanitarian, temporarily franchising dental appliances, by Non-Party 2's dental technicians, constitutes unlicensed medical practice because it is apparent that the act does not fall under "the duties concerning the prevention of dental diseases and hygiene" under Article 2 (1) 6 of the Enforcement Decree of the Medical Technicians, etc. Act, which prescribes the scope and limits of duties of dental sanitarians, and even if Non-Party 1, who is a dentist, performed the above-mentioned act under the direction and supervision of the defendant, he cannot be viewed differently, and unlike this, the above act of provisional franchising dental appliances, is more dangerous than the act of removing the flachis and preventing the flachising symptoms, and thus, it constitutes an act of causing harm to the public health and sanitation rather than the act of removing the flachis, which belongs to the scope of duties of dental technicians and the act of treating the flachisiums cannot be accepted.

In addition, the "medical assistance duty" of a nurse or assistant nurse as provided by Article 2 (2) 5 and Article 58 (2) of the former Medical Service Act (wholly amended by Act No. 8366 of Apr. 11, 2007), Article 2 (1) 2 of the Rules on Assistants and Medical Care Service Providers (wholly amended by Ordinance No. 10 of the Ministry of Health and Welfare of Apr. 15, 2008) refers to the act of assisting a nurse or assistant nurse in the medical treatment performed by a physician as the principal agent, and even if a nurse or assistant nurse gives oral instructions, if he/she actually provides medical assistance, it cannot be deemed as an act of assisting a nurse or assistant nurse.

In the same purport, the judgment of the court below that Nonindicted 1’s temporary exploitation of the above ad hoc scrap metal does not constitute an act of assistance in medical treatment is just, and there is no error of law by misapprehending the legal principles as to the act of assistance in medical treatment, as alleged in

2. Regarding the ground of appeal No. 2, Article 2(1)5 of the Enforcement Decree of the Medical Technicians, etc. Act, Article 2(1)5 of the Medical Technicians, etc. Act provides that “the manufacturing, repairing, or processing of dental appliances and charging appliances or calibration devices necessary for dental treatment” shall be limited to the scope and limitation of the duties of dental technicians, and the scope of duties performed by dental technicians shall be limited to the manufacturing, repairing, and processing of dental appliances, etc. to be installed by patients and shall not be included in the direct treatment of patients.

According to the reasoning of the judgment below and the records, Nonindicted 3, a dental technician, is aware of the fact that: (a) Nonindicted 3, a dental technician, performed a direct treatment of patients beyond manufacturing, repairing, or processing dental appliances; and (b) Nonindicted 3, a dental technician, performed a non-licensed medical practice on the basis of the repair of dental appliances; and (c) made Nonindicted 2, a patient to ask for the question of whether he/she is a patient; and (d) confirmed whether he/she performed the normal function of dental appliances; and (e) then processed or adjusted the dental appliances by arbitrarily cutting down the parts of the dental appliances that he/she thought to have an error according to his/her judgment. Accordingly, such acts by Nonindicted 3 constitute a non-licensed medical practice by deeming that he/she performed a direct treatment of patients beyond the mere manufacturing, repairing, or processing of dental appliances; and (e) even if he/she

In the same purport, the court below is just in holding that the instant act by Nonindicted 3, a dental technician, is not included in the scope of duties of dental technicians as a non-licensed medical practice, and there is no violation of the rules of evidence or misapprehension of the legal principles as to the scope of duties of dental technicians, as otherwise

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.