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인천지방법원 2012고정366 판결
가.사기방조나.사기
Cases

2012 fixed 366 A. Fraudulent aiding and abetting

(b) Fraud;

Defendant

1. A.

2.2.B

3.2. C.

4.2.D

5.2.2. E

6.b)F

7.b. G.

8.b. H

9.2.1

10.2.J

11.b.K

12.b. L

13.2.b) M

14.b. N

15.b.0

Prosecutor

Isle (prosecutions) and the highest court (public trial)

Defense Counsel

P Law Firm, Attorneys Q Q (for all the defendants)

Imposition of Judgment

June 14, 2013

Text

Defendant A shall be punished by a fine of two million won, and Defendant M shall be punished by a fine of seven hundred thousand won.

If the Defendants did not pay each of the above fines, the Defendants shall be confined in the Labor House for the period calculated by converting 50,000 won into one day.

An order to pay an amount equivalent to each of the above fines shall be issued.

Of the facts charged against Defendant A, Defendant B, C, D, E, F, G, H, I, J, K, L, N,O and R, S, T, and U, respectively, and the facts charged against Defendant M by fraud on March 26, 2010, 2010, and 29 March 29, 2010, each of them was acquitted.

Of the facts charged against Defendant M, the fraud of March 26, 2010 and March 29, 2010 among the facts charged against Defendant M shall be acquitted, respectively. Defendants B, C, D, E, F, G, H, I, K, K, L, N, andO shall be acquitted.

Reasons

Criminal History Office

Defendant A is a doctor who operates W chairs who specializes in treatment of unused beer in the 6th floor of the Incheon Bupyeong-gu V history, and is in charge of the operation of the hospital, such as medical treatment, surgery, and issuance of a written confirmation of entrance discharge for patients who were home in order to undergo an operation of dominer surgery. Defendant M is a patient who underwent an operation of dominer in the above clinic.

1. Although Defendant A’s surgery on the part of Defendant A’s fraud aiding and abetting surgery is mostly 1) continuous progress observation and treatment such as medication and treatment after surgery, there is no need for hospitalization to immediately discharge Defendant A after the stability in the recovery room.

On April 22, 2010, the above Defendant: (a) prepared a false written confirmation of hospitalization to the Defendant M who requested the issuance of a hospitalization certificate to claim insurance money despite having returned home without hospitalized treatment on the date of the surgery against the Defendant M, who was found to be a patient to the above Council member; (b) prepared a false written confirmation of hospitalization to the effect that the Defendant M was receiving one-time hospitalization treatment from April 22, 2010 to April 23, 2010; and (c) delivered it to the Defendant M, thereby facilitating the Defendant M to obtain KRW 1,013,60 from the insurance company of the teaching life, and KRW 1,107,200 from the modern sea, and KRW 2,120,80 from the modern sea.

Defendant M returned to the Republic of Korea without hospitalized treatment on April 22, 2010. However, Defendant M obtained a false certificate of hospitalization with the content of being hospitalized for two days, around April 27, 2010, and around April 26, 2010, Defendant M received KRW 1,013,600 from the insurance company, and KRW 1,107,200 from the modern sea, and KRW 2,120,80 from the insurance company, by claiming insurance proceeds to the Hyundai Marine Insurers around April 26, 2010.

Summary of Evidence

1. Each legal statement of Defendant A and M in part;

1. Each police suspect interrogation protocol of Defendant A and M;

1. Each police statement made to 0, X, N, and A;

1. Each investigation report, and the application of statutes governing the payment of insurance proceeds to each insured worker;

1. Relevant Article of the Criminal Act and Article 347(1) and Article 32(1) of the Criminal Act (Overallly, Selection of Fines) Defendant M: Article 347(1) of the Criminal Act (Selection of Fines);

1. Statutory mitigation;

Defendant A: Articles 32(2) and 55(1)6 (a) of the Criminal Act

1. Aggravation for concurrent crimes;

Defendant M: former part of Article 37, 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

Judgment on the assertion of Defendant A, M and Defense Counsel

1. The assertion;

Defendant A, M, and defense counsel asserted that Defendant A did not have any intent to commit fraud with respect to each of the frauds on April 26, 2010 against Defendant M, and April 27, 2010, Defendant A did not have any intention to commit fraud, and Defendant A did not have any intention to commit fraud.

2. Determination

However, in light of the fact that there is a need for hospitalization after the surgery, Defendant M&A only takes place within 2 hours in the hospital for the purpose of performing the surgery and its recovery, and that it did not meet the requirement of so-called “low-quality hospital” in the recovery room after the surgery, and that there is no special treatment or observation of medical personnel after the surgery, even if the uniformly hospitalization does not require the patient to stay at the hospital for a certain time, it is difficult to view that the case was “in the absence of hospitalization” by Defendant M&A with the knowledge of the fact that the above treatment or treatment had been carried out for the purpose of taking account of the fact that the above treatment or treatment had been carried out, it was difficult to view that the above treatment or treatment had been carried out for the purpose of providing 0 days a false written confirmation that the above treatment had been carried out by Defendant M&A with the knowledge of the fact that the above treatment had been carried out before the surgery, and that the above treatment had not been carried out for 2 days after the surgery, it appears that the above treatment had not been carried out for 2 days.

Therefore, the above Defendants and the defense counsel cannot be accepted.

Parts of innocence

1. Facts charged;

Defendant A is a doctor who operates W chairs who specializes in treatment of unused beer in the 6th of the Incheon Bupyeong-gu V history, and is in charge of the operation of the hospital, such as medical treatment, surgery, and issuance of a written confirmation of entrance discharge for patients suffering from the hospital. Defendants B, C, D, E, F, G, H, H, I, J, K, L, M, N,O, S, T, and U are patients who have undergone the operation of a beer operated by the above member.

A. The Defendant A’s surgery on the part of the Defendant’s fraud aiding and abetting surgery does not require continuous observation and treatment of doctors, such as medication and treatment after the surgery. However, it does not require hospitalization to be immediately discharged after taking stability in the recovery room.

Around June 24, 2009, the above Defendant: (a) prepared a false written confirmation of hospitalization to the Defendant B who requested the issuance of a hospitalization certificate to claim insurance money despite having returned home without hospitalized treatment on the day of the surgery against the Defendant B, who was found to be a patient at the above hospital; (b) made it easy for the Defendant B to obtain KRW 2,798,50 from the modern marine insurance company to obtain KRW 2,798,50 by fraud; and (c) assisted the Defendant B to obtain KRW 37,2926,3124,208,712,70 from the private insurance company, such as Hyundai Marine Insurance Company, to March 29, 2010; and (d) made it easy for the Defendant B to obtain financial benefits as described in the following (b) by aiding and abetting the Defendant B’s 18 persons, including the Defendant B from June 24, 2009 to March 29, 2010.

(1) On June 24, 2009, Defendant B returned to Korea without hospitalized treatment after receiving an operation of an unclaimed beer from the above member of the Council, and obtained a false confirmation of hospitalization stating the fact that the Defendant was hospitalized for two days, and received KRW 2,798,500 from the insurance company around July 8, 2009, by deceiving the insurance company, by claiming insurance money to the Hyundai Marine Fire Insurance Company around July 7, 2009.

(2) Around July 17, 2009, Defendant C returned to home without hospitalized treatment after receiving an operation of an unclaimed beer from the above member of the Council, and obtained a false certificate of hospitalization stating the fact that he was hospitalized for two days, and received the insurance company’s delivery of KRW 2,345,820 from the insurance company around July 23, 2009, by claiming insurance money to the interesting fire insurance company around July 23, 2009.

(3) On July 28, 2009, Defendant D returned to Korea without hospitalized treatment after receiving an operation of an unclaimed beer from the above member of the Council, and obtained a false confirmation of hospitalization stating the fact that he was hospitalized for two days, and received the insurance company’s delivery of KRW 2,755,820 from the insurance company around August 10, 209, by claiming insurance money to the interesting fire insurance company around August 7, 2009.

(4) On July 31, 2009, R returned to Korea without hospitalized treatment after receiving an operation of an unclaimed beer from the above Council member, and obtained a false certificate of hospitalization stating the fact that R was hospitalized for two days, around August 13, 2009, and received KRW 1,810,820 from the insurance company by deceiving the insurance company on August 14, 2009.

(5) Around August 12, 2009, Defendant E returned to the Republic of Korea without hospitalized treatment after receiving an operation of an unclaimed beer from the above member of the Council, Defendant E obtained a false certificate of hospitalization with the content of being hospitalized for two days, and received KRW 2,806,640 from the insurance company around October 26, 2009, by claiming insurance proceeds to Samsung Fire Insurance Co., Ltd. on or around October 23, 2009.

(6) On August 14, 2009, Defendant F, despite having returned to Korea without hospitalized treatment after receiving an operation of an unclaimed beer from the above member of the National Assembly, Defendant F, upon obtaining a false confirmation of hospitalization with the content of being hospitalized for two days, he/she received a false confirmation from the insurance company around October 16, 2009, claiming insurance money from the Korea Commercial Accident Insurance Company and received KRW 2,268,000 from the insurance company around October 16, 2009.

(7) On August 31, 2009, Defendant G, even though he returned to Korea without hospitalized treatment after receiving an operation of an unclaimed beer from the above Council member, Defendant G, upon obtaining a false certificate of hospitalization stating the fact that he was hospitalized for two days, issued an insurance company a claim for insurance money to Samsung Fire Insurance Co., Ltd. on or around September 4, 2009, and received KRW 1,593,520 from the insurance company around September 8, 2009.

(8) On September 11, 2009, SS returned to her home without hospitalized treatment after receiving an operation of an unclaimed beer from the above Council member. However, on September 11, 2009, S issued a false certificate of hospitalization with the content of being hospitalized for two days, and received KRW 1,345,640 from the insurance company by deceiving the insurance company on September 17, 2009.

(9) Around February 5, 2010, Defendant H returned to the Republic of Korea without hospitalized treatment after receiving an operation of an unclaimed beer from the above member of the Council, Defendant H, upon obtaining a false certificate of hospitalization, stating the fact that the Defendant was hospitalized for two days. Around February 17, 2010, Defendant H was issued KRW 985,792 from the insurance company on February 18, 201, by claiming insurance money to Samsung Fire Insurance Co., Ltd., and by deceiving the insurance company.

(10) On February 13, 2010, TT returned to Korea without hospitalized treatment after receiving an operation of an unclaimed beer from the above member of the Council, upon obtaining a false certificate of hospitalization with the content of being hospitalized for two days, on February 17, 2010, and received KRW 2,120,000 from the insurance company by deceiving the insurance company on February 19, 201, after receiving a false certificate of hospitalization with the content of being hospitalized for two days.

(11) Around February 17, 2010, Defendant I returned to home without hospitalized treatment, even though he was performed by the above member of the Council, Defendant I received a false certificate of hospitalization stating the fact that he was hospitalized for two days, and received KRW 1,445,840 from the insurance company around March 16, 2010, by claiming insurance money to the interesting fire insurance company around March 13, 2010, and by deceiving the insurance company.

(12) The Defendant J, around February 19, 2010, returned to home without hospitalized treatment after undergoing a surgery of domination at the above member of the Council, issued a false hospitalization certificate stating the fact that he was hospitalized for two days, and received KRW 2,557,520 from the insurance company around February 25, 2010, by claiming insurance money to Samsung Fire Insurance Co., Ltd. on or around February 22, 2010, and receiving KRW 2,557,520 from the insurance company.

(13) Around February 23, 2010, Defendant K returned to home without hospitalized treatment, Defendant K received a false written confirmation of hospitalization stating the fact that he was hospitalized for two days, despite having returned to home without hospitalized treatment, and around February 26, 2010, Defendant K received KRW 2,426,120 from the insurance company on March 2, 201 of the same year by claiming insurance money to the Dong fire insurance company, and by deceiving the insurance company.

(14) On February 24, 2010, the Defendant LA returned to Korea without hospitalized treatment after receiving an operation of an unclaimed beer from the above member of the Council, but was issued with a false certificate of hospitalization stating the fact that the Defendant was hospitalized for two days, and received KRW 2,376,120 from the insurance company around March 2, 2010, by claiming insurance money to the interesting fire insurance company around March 2, 2010.

(15) On March 5, 2010, UJ issued a false certificate of hospitalization stating the fact that he/she was hospitalized for two days, even if he/she returned to the Republic of Korea without hospitalized treatment, around March 5, 2010, and received KRW 1,575,840 from the insurance company by deceiving the insurance company on March 11, 201 of the same year by claiming insurance money to the interesting fire insurance company around March 10, 201.

(16) Around March 19, 2010, Defendant M&C returned to Korea without hospitalized treatment after receiving an operation of an unclaimed beer at the above member’s meeting, the Defendant received a false confirmation of hospitalization with the content of being hospitalized for two days on March 29, 2010, and received KRW 1,053,620 from Hyundai Marine Insurance Company by claiming insurance proceeds to Hyundai Marine Insurance Company around March 26, 2010, and received KRW 2,422,220 from Hyundai Marine Insurance Company by deceiving the insurance company.

(17) On March 24, 2010, Defendant NB returned to Korea without hospitalized treatment after receiving an operation of an unclaimed beer from the above member, Defendant NB issued a false confirmation of hospitalization with the content of being hospitalized for two days, and received KRW 1,312,100 from the insurance company around April 15, 2010, by claiming insurance money to the Hyundai Marine Insurance Company around April 15, 201, by deceiving the insurance company.

(18) On March 29, 2010, Defendant 0: (a) returned home without hospitalized treatment after receiving an operation of an unclaimed beer from the above member of the Council; (b) on February 1, 2010, Defendant 0 issued a false confirmation of hospitalization with the content of being hospitalized for two days; and (c) received KRW 2,740,000 from the insurance company on April 2, 201, by claiming insurance money to Samsung Fire Insurance Co., Ltd.; and (d) by deceiving the insurance company.

2. Determination

A. The facts charged in a criminal trial must be proved by the prosecutor, and the judge should be convicted with evidence having probative value, which leads to the conviction that the facts charged are true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is a suspicion of guilt against the defendant, it shall be determined with the benefit of the defendant (see Supreme Court Decision 2002Do5662, Dec. 24, 2002, etc.).

B. The term “hospitalize” means a patient’s treatment under the observation and management of a medical doctor while staying in a hospital for more than six hours in accordance with various provisions, such as “detailed details on the criteria and method for applying medical care benefits to the Ministry of Health and Welfare,” where continuous observation of a medical doctor is required with respect to side effects or incidental effects of the patient’s disease caused by low resistance or administered drugs, where medication, treatment, etc. is needed, and the patient’s pain is in a situation where the patient’s condition is unable to cope with pains, or where the patient’s risk of infection exists, etc., and where the patient suffers from treatment while staying in the hospital, it shall be determined by taking into account the symptoms, diagnosis and treatment of the patient, and the patient’s actions (see, e.g., Supreme Court Decision 2004Do6557, Jan. 12, 206). However, the determination of whether the patient was hospitalized based only on the period of stay in the hospital cannot be made based on the patient’s symptoms, diagnosis and treatment of the patient, etc.

C. According to the evidence submitted by the prosecutor, most of the surgery is that continuous progress observation and treatment, such as medication and treatment, are not necessary (in most cases of hospital specialized in treatment of non-patients, it is promoted that it is unnecessary to provide hospitalization, and that it is possible to do so at source). Since the surgery is most of non-benefit items not included in the insurance benefits of the National Health Insurance Corporation, from the patient’s standpoint, the patient can only receive 30% or 100% of the medical expenses to be borne by the patient himself/herself as insurance money (the Defendants except the Defendant A (hereinafter referred to as “the patient”), and the fact that the Defendants stated that the patient was not hospitalized in the investigative agency for less than six days on the day on which they stated that the patient was not hospitalized (the insurance money to be considerably reduced compared to the hospital’s entrance, which was written by the Defendant at the investigative agency for less than six days) and that the Defendant’s nurse was not provided with counseling and advice to the effect that he/she was not provided with the aforementioned medical treatment.

D. However, the issue of whether hospitalization is necessary is determined based on the patient’s specific circumstances. As such, it is difficult to readily conclude that there is no need for hospitalization after an surgery, since the patient’s treatment can be recovered at each stage after the surgery, and there is an emergency due to mergers and side effects, etc. (see, e.g., Supreme Court Decision 2009Da15448, Apr. 2, 2009). (3) In general, hospitalization means that the patient is under medical care under the medical doctor’s observation and management while staying in the hospital for more than 6 hours according to the following provisions: (i) whether the patient was hospitalized at the hospital; (ii) whether the patient was hospitalized at the hospital; and (iii) whether the patient was hospitalized at the hospital; and (iv) whether the patient was hospitalized at the hospital (the patient’s most than 6 hours at the investigative agency, claiming that the patient was staying in the hospital; and (iv) whether the above Defendants did not have been hospitalized at the hospital or treatment time after the surgery.

E. Thus, the above facts charged against the Defendants, a patient, who is the patient under the premise that the Defendants, as stated in the above facts charged, did not have legitimate authority to receive the insurance money corresponding to hospitalization, constitutes a case where there is no proof of facts constituting a crime, and as long as the principal offender was not constituted, the aiding and abetting cannot be established, and thus, the Defendants as stated in the above facts charged are acquitted pursuant to the latter part of

Judges

Judges Kim Jae-han

Note tin

1) recognize ex officio.

2) In the case of the so-called low-income ward (referring to hospital treatment upon being treated at a hospital for more than six hours and being staying there for more than six hours) hospitalization.

It seems to be dealt with.

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