In a case where a number of unauthorized Medical Practice by a person who engages in a non-licensed medical practice for profit-making purposes is an all-inclusive crime, and a part of the crimes is prosecuted as “violation of Article 27 subparag. 1 of the Medical Service Act” and the judgment becomes final and conclusive, whether the final and conclusive judgment constitutes an offense of violation of Article 5 subparag. 1 of the Act on Special Measures for the Control of Public Health Crimes committed prior to

Since non-licensed medical practice is anticipated to repeat the same crime due to the nature of the constituent elements of the crime, if a person engaged in non-licensed medical practice continues to perform multiple non-licensed medical practice repeatedly for a certain period under the category of single and continuous criminal intent, and if such damage legal interests are the same, each act should be punished by a single comprehensive crime. Meanwhile, in a case where a judgment becomes final and conclusive with respect to part of the crime in the relation of a single comprehensive crime, the final and conclusive judgment shall be sentenced to acquittal by the lack of res judicata effect as to the crime committed prior to the final and conclusive judgment at the time of sentencing of the fact-finding court. This legal principle equally applies to the case where multiple non-licensed medical practice conducted by a person engaged in non-licensed medical practice for profit-making purposes are in the relation of a single comprehensive crime, and the judgment becomes final and conclusive, and it does not change merely because the crime in the final and conclusive judgment is not a violation of Article 5 subparagraph 1 of the Act on Special Measures

Article 37 of the Criminal Act; Articles 27(1) and 87(1)2 of the Medical Service Act; Article 5 subparag. 1 of the Act on Special Measures for the Control of Public Health Crimes; Article 326 subparag. 1 of the Criminal Procedure Act

Supreme Court Decision 94Do1318 delivered on August 9, 1994 (Gong1994Ha, 2317) Supreme Court Decision 2006Do1252 Delivered on May 11, 2006

Defendant

Prosecutor

Attorney Han-chul

Gwangju District Court Decision 2013No1552 Decided September 11, 2013

The appeal is dismissed.

The grounds of appeal are examined.

1. Where a criminal trial becomes final and conclusive and conclusive, it shall not be repeatedly punished for the same offense, and where a public prosecution is instituted for the same case with a final and conclusive judgment, a judgment of acquittal shall be pronounced. Whether the facts charged or the facts charged are identical shall be based on the defendant’s act and social facts, and such normative elements shall also be considered (see, e.g., Supreme Court Decisions 2005Do9678, Mar. 23, 2006; 2009Do4785, Oct. 14, 2010).

The main text of Article 27(1) of the Medical Service Act provides that “No person, other than a medical person, shall perform any medical practice, and any medical person, shall be prohibited from performing any medical practice other than the licensed one,” and Article 87(1)2 of the same Act provides that a person who conducts any medical practice without a license, shall be punished. In addition, Article 5 subparag. 1 of the Act on Special Measures for the Control of Public Health Crimes aggravated punishment of “the person, other than a doctor, engages in any medical practice for profit-making purposes in violation of the provisions of Article 27 of the Medical Service Act.” However, since non-licensed medical practice is anticipated to repeat the same crime due to the nature of the constituent elements of the crime, if a person who conducts any non-licensed medical practice for profit-making purposes continues to conduct such medical practice for a certain period of time without a license, and if the person has the same legal interest as the one who

Meanwhile, in a case where a judgment becomes final and conclusive with respect to a part of a crime related to a single comprehensive crime, the judgment of acquittal shall be rendered on the crime committed before the judgment of the court of fact-finding because res judicata of the final and conclusive judgment has not yet expired (see, e.g., Supreme Court Decisions 94Do1318, Aug. 9, 1994; 2006Do1252, May 11, 2006). Such a legal principle applies likewise to a case where a number of unauthorized medical practice conducted by a person who engages in a non-licensed medical business for profit-making purposes is in the relation of a single comprehensive crime, and the judgment becomes final and conclusive, and it does not mean that the crime of the final and conclusive judgment is not a violation of Article 5 subparag. 1 of the Act on Special Measures for the Control of Public Health Crimes, but rather a case where a prosecution is instituted as a violation

2. Of the facts charged in this case, the lower court: (a) held that, as indicated in No. 1 or No. 13 of the List of Crimes No. 1 to No. 13 of the judgment of the first instance even though the Defendant was not a doctor, the Defendant engaged in a medical practice for profit-making purposes by using an exclusive injection device over a total of 13 times; and (b) obtained a total of 9.76 million won in return for such act; and (c) held that, on March 26, 2012, the Defendant had been sentenced to a suspended sentence of 2 years for a violation of the Medical Service Act at the Gwangju District Court on April 3, 2012, and the judgment became final and conclusive on April 3, 2012, the Defendant continued to perform the same medical practice without comprehensive consideration and without comprehensive consideration for the same crime committed by the Defendant from June 20 to July 2011; and (d) held that the Defendant had continued to perform the same medical practice without comprehensive consideration as stated in the above final judgment.

In light of the record in light of the above legal principles, the above measures of the court below are just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the acceptance of unlicensed medical practice or the scope of res judicata, which was indicted for a violation of the Act on Special Measures for the Control of Public Health Crimes. The Supreme Court precedents cited in the grounds of appeal are different cases, and thus are inappropriate to be invoked in this case.

Meanwhile, although the prosecutor submitted a written appeal to the effect that he/she is dissatisfied with the entire judgment of the court below, there is no indication of the grounds for appeal nor any statement of the grounds for appeal as to the remaining guilty portion.

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

Justices Ko Young-han (Presiding Justice)