Defendant

Prosecutor

The Republic of Korea shall file a prosecution, stay in court, and hold a public trial.

Law Firm Sejong, Attorney Kim Sung-sung

Changwon District Court Decision 2013Ra1091 Decided February 19, 2014

1. The judgment below is reversed.

2. Defendant shall be punished by a fine of KRW 5,000,000.

3. If the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for a period calculated by converting 50,000 won into one day.

4. An order to make the provisional payment of the amount equivalent to the above fine;

1. Summary of the facts charged

A. Summary of the primary facts charged

The Defendant is a doctor operating a medical institution under the trade name of “△△△△△△△△△△△△” located in the former city at the former city, and shall not prepare a medical certificate, certificate, prescription, etc. and deliver it to the patient, unless he/she has directly conducted a medical examination.

During the period from June 7, 2012 to June 19, 2013, the Defendant did not directly examine 25 inmates, including Nonindicted Party 1 (the Nonindicted Party 1), who was confined in the ○○ Prison, and issued a prescription for a total of 42 occasions, as indicated in the attached list of crimes, by having the ○○ Correctional Institution medical duties and employees bring into the prison.

B. Summary of the conjunctive charge

The Defendant is a doctor operating a medical institution under the trade name of “△△△△△△△△△△△△” located in the former city at the former city, and shall not prepare a medical certificate, certificate, prescription, etc. and deliver it to the patient, unless he/she has directly conducted a medical examination.

During the period from June 7, 2012 to June 19, 2013, the Defendant did not directly examine 25 inmates, including Nonindicted Party 1, who are confined to ○○ Prisons, and issued a certificate 42 times in total, as indicated in the attached list of crimes, by having the ○○ Prisons obligation and the employees bring it into the prison.

2. Summary of the judgment below

The lower court acquitted all of the primary charges and ancillary charges on the grounds of the circumstances acknowledged by the evidence duly investigated and adopted by the lower court.

3. Summary of grounds for appeal;

A. As to the primary facts charged

The essence of this case’s document is a prescription under Article 17(1) of the Medical Service Act.

B. As to the ancillary charges

The document of this case prepared by the defendant constitutes a certificate under Article 17 (1) of the Medical Service Act to prove that the medicine is in accordance with the doctor's prescription. The delivery by the defendant to a correctional officer is naturally based on the premise that the document of this case is delivered to the patient through a correctional officer.

4. Judgment on the main facts charged

(a) the relevant regulations;

The entry in the attached Form shall be as follows.

B. The meaning of "a prescription" under Article 17 (1) of the Medical Service Act

Article 17(1) of the Medical Service Act provides that a doctor, etc. who is not a doctor engaged in the medical business and has not issued a prescription, etc. to a patient (Article 17(1) of the Medical Service Act), and a doctor, etc., if deemed necessary to administer the relevant drug to a patient, shall prepare a prescription to the patient and deliver it to the patient (Article 18(1) of the Medical Service Act), and a pharmacist shall not, in principle, prepare the relevant drug without a prescription (Article 23(3) of the Pharmaceutical Affairs Act). Meanwhile, Article 12 of the Enforcement Rule of the Medical Service Act provides that a doctor, etc., shall sign or affix a seal on the relevant prescription, in addition to the specific matters to be stated on the prescription (Article 12(1)). Article 23(4) of the Pharmaceutical Affairs Act provides that a doctor, etc. may directly prepare the relevant drug, but intends to issue a prescription to a patient (Article 18(4)).

Therefore, comprehensively taking account of the relevant provisions of the Medical Service Act, the Enforcement Rule of the Medical Service Act, and the Pharmaceutical Affairs Act, it is reasonable to interpret “a prescription” under Article 17(1) of the Medical Service Act as “documents prepared and delivered to a patient so that a doctor who recognizes the necessity of administering medicine for a patient can prepare medicine for the patient.” In a case where a doctor directly prepares medicine for reasons falling under the exception that a doctor may directly prepare medicine pursuant to Article 23(4) of the Pharmaceutical Affairs Act, it is difficult to present the concept of “a prescription” under the above meaning.

C. Determination

According to the evidence duly reviewed and adopted by the court below, the defendant, as a mental doctor, entered into a regular medical contract with ○○ prison on mental illness inmates, and the patient decided to conduct medical treatment outside of △△△△△△△ (Evidence 224 pages) and a medical treatment in a prison, which is conducted in a medical department outside of △△△△△△△△△ branch (Evidence 224 pages). (2) Accordingly, the defendant was subject to the exception of medical treatment under Article 23(4)3 or 10 of the Pharmaceutical Affairs Act, and directly prepared and delivered medicines to the defendant. If some of the prisoners of this case were to find a hospital of the defendant directly on behalf of the defendant, the defendant did not directly examine them, and the correctional officer did not directly report the previous prescription or medical record, and prepared and delivered medicines such as the attached list to the defendant, and the defendant issued a medical prescription to the defendant, who declared that the drugs of this case were to be carried in to ○○ prison.

According to the facts of recognition, the prescription issued by the defendant with respect to the drugs such as the attached list cannot be deemed as having been prepared and issued for the purpose of making the patient prepare drugs to a pharmacist on the premise of the pharmaceutical distribution business, as seen earlier. The evidence submitted by the prosecutor alone is difficult to recognize the primary facts of the offense under the premise that the defendant prepared and issued the prescription under Article 17(1) of the Medical Service Act with respect to the instant case, and there is no other evidence to acknowledge it. Therefore, the judgment of the court below that acquitted the defendant on the primary facts of the offense is justified.

5. Judgment on the ancillary facts charged

A. Whether the prescription of this case constitutes “certificate” under Article 17(1) of the Medical Service Act

The following circumstances acknowledged by the evidence duly admitted and adopted by the court below, i.e., (i) at the court of the court below, ① it is necessary to verify that the prescription is in accordance with the doctor’s prescription, or whether this prescription is in accordance with the doctor’s prescription,” and (ii) it is necessary to prove that the prescription issued by the defendant is in accordance with the doctor’s prescription to bring in the relevant correctional institution in accordance with Article 17(1) of the Medical Care Regulations, which is established by the Ministry of Justice (the trial record 146 pages), and (iii) pursuant to Article 21(1) of the Medical Care Regulations for Prisoners, which is established by the Ministry of Justice, that “if there is a request from the prisoner’s family to borrow drugs from the prisoner’s family, it may be allowed to submit a medical certificate and prescription issued by the preparation hospital, and if extremely necessary after receiving the doctor’s medical examination, medicine officer, or expert’s prescription.” In full view of the above circumstances, the prescription issued by the defendant constitutes a certificate of doctor’s prescription to bring in the relevant medical institution.

(b) Whether it has been delivered to the patient;

The following circumstances acknowledged by the evidence duly admitted and adopted by the court below, namely, ① it is necessary to prove in principle that the medicine to be brought into a prison was prepared by a medical certificate and prescription issued in an external medical facility. In addition, the correctional officer issued the medicine and prescription with the delegation of the patient. ② The defendant also revealed that the prescription was issued to the patient through a correctional officer, under the premise that the prescription was issued to the patient, and the defendant issued the above prescription to the patient; ③ Article 17(1) of the Medical Service Act provides a correctional officer with a medical treatment record to provide the patient with the medical guidance; ③ Article 17(1) of the Medical Service Act provides a medical treatment record without the doctor's own diagnosis and hear the contents of the medical examination without the doctor's diagnosis; ④ it is a provision to prevent abuse; ④ In particular, psychotropic drugs, it is more strictly managed by the defendant to prevent abuse and abuse of the drugs by restricting the number of days prescribed by the Ministry of Food and Drug Administration notice and the Ministry of Health and Welfare notice, etc.; and, in light of the above, it is more strict to issue the above medical certificate to the inmate.

Nevertheless, the judgment of the court below which acquitted the conjunctive charge is erroneous by misunderstanding the facts and adversely affecting the conclusion of the judgment, so the prosecutor's assertion assigning this error is with merit

6. Conclusion

Therefore, since the prosecutor's appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

The same shall apply to paragraph (b) of this Article.

1. Partial statement of the defendant;

1. Examination protocol of the accused by prosecution;

1. Seizure records;

1. A register of medical treatment for prisoners;

1. Each report on investigation;

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 89 and 17 (1) of the Medical Service Act, the selection of fines

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

From June 7, 2012 to June 19, 2013, the Defendant committed the instant crime for about one year. The period is relatively long-term, and 25 patients have prepared certificates over forty-two times, etc., and repeatedly committed the instant crime against many patients. The Defendant’s prescribed drugs are generally used in symptoms, such as apprehension, depression, and scarcity, and are generally used in symptoms, and it is judged that there is a risk of causing side effects, such as misuse, abuse, etc., to the patients, considering the type, dosage, administration period, etc. of the drugs, etc., are disadvantageous to the Defendant.

However, the fact that the defendant's gains from the crime of this case were insignificant, and the defendant did not commit the crime of this case for profit-making purposes, and that the defendant was causing the crime of this case in order to consider the patient in a situation where it is difficult for the patient to undergo a diagnosis by a psychiatrist. As such, some of the circumstances that may be considered in the process of the crime are favorable to the defendant.

In addition to the above circumstances, the sentencing conditions specified in the records and arguments of this case, including the Defendant’s age, character and conduct, and circumstances after the crime, shall be determined as ordered by taking into account all the circumstances.

The summary of the primary facts charged of this case is as stated in Section 1-A, and as seen in the judgment of the main facts charged of this case, the primary facts charged of this case should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act because it falls under a case where there is no proof of a crime, but as long as it is found guilty of the primary facts charged of this case,

[Attachment]

Judges Cho Chang-young (Presiding Judge)