Defendant 1 and six others

Defendants

Gambage containers

Attorneys Park Young-soo et al.

Seoul Central District Court Decision 2004 High Court Decision 6787, 2004 High Court Decision 3590, 3779, 3871 (merged) Decided June 24, 2005

The part against Defendant 2 and 3 in the judgment of the court below shall be reversed.

Defendant 2 shall be punished by a fine of five million won, and by a fine of seven million won.

If the above defendants fail to pay the above fines, the above defendants shall be confined in the workhouse for a period of 50,000 won converted into one day.

Defendant 1, 4, 5, 6, and 7's appeal shall be dismissed.

1. Summary of grounds for appeal;

A. Error of mistake

(1) Defendant 1

Of the facts charged against the above defendant, the co-defendant 1 of the court below erred in finding the defendant guilty of this part of the facts charged by misunderstanding the facts and finding the defendant guilty of this part of the charges by misunderstanding the facts. The court below did not err in finding the defendant guilty of this part of the charges by misunderstanding the facts.

Doz. Defendant 2

Although the co-defendant 1 of the court below did not have any involvement of the above defendant in conducting a maternity surgery, the court below erred by misapprehending the facts, thereby finding the above defendant guilty.

【Defendant 3】

The co-defendant 1 of the court below found the above defendant guilty of the charges on the above defendant by misunderstanding the facts, even though the court below found the above defendant guilty on the ground that the above defendant committed part of the act of inserting the hair arbitrarily by using the hair without the consent of the non-indicted 1 at the request of the non-indicted 1, since the above defendant's act of spreading the hair when he carries out the hair surgery for the non-indicted 1.

x Defendant 6, 7

The co-defendant 1 of the court below erred by misapprehending the facts charged against the above defendants, which led the above defendants to the above defendants when performing a hair transplant procedure for the patients, and by inserting them into a food season by separating one part from the two parts collected by the above defendants. However, the court below erred by finding the above defendants guilty.

B. Legal principles

(1) misunderstanding of legal principles as to unauthorized Medical Practice (Defendants)

Defendant 1’s co-defendant 1 of the court below, an assistant nurse, in conducting the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery for the surgery, for which the foregoing co-defendant 1 of the court below found Defendant 2, 3, 4, 5, 6, and 7 cannot be deemed as an act for the surgery for the surgery for the surgery for the patient’s head.

Dodic principles concerning the act of political party (Defendant 5)

Considering the fact that there is no significant risk of transplantation during hairing, that the above defendant's act to obtain assistance from the co-defendant 1 of the court below, which is an assistant nurse, in the case of hairing surgery, is in accordance with the motive and purpose of completing all processes with the assistance of the assistant nurse, and the defendant's act is in accordance with the motive and purpose of completing all processes with the assistance of the assistant nurse. Under the direction and supervision of the above defendant, only some transplantations were performed when the above defendant was forceed, although the above co-defendant 1 of the court below conducted the procedure was a assistant nurse, it has much experience in the actual hair transplantation, and has much expertise about food, and there is little possibility of side effect or risk occurrence, and no side effect has occurred to the patient who received the procedure, the above defendant's act is justified as a justifiable act that does not violate the social rules. Thus, the court below erred by misapprehending the legal principles on the justifiable act, thereby finding the above defendant guilty.

C. Unreasonable sentencing (defendants)

Considering the various circumstances against the Defendants, the sentence of the lower court (a fine of KRW 20 million for Defendant 1; a fine of KRW 5 million for Defendant 2; Defendant 3 million for Defendant 7 million; Defendant 4 fine of KRW 12 million for Defendant 5 and 6; Defendant 10 million for each fine of KRW 12 million for Defendant 5 and 6; Defendant 7 million for Defendant 7 million for a fine of KRW 5 million) is unreasonable.

2. Determination on the grounds for appeal

A. Judgment on the assertion of mistake of facts

(1) Defendant 1

In light of the evidence duly examined and adopted by the court below, the above defendant is able to sufficiently recognize the fact that the above defendant is holding a patient on a place on the surgery room, and kiscky for the surgery of the eyebrow on the patient's kisium, the co-defendant 1 of the court below is conducting the eyebrow surgery by extracting the hair removed from the back head part of the patient's kis, and revising the direction of the hair in order to ensure that the transplant is above, so there is no reason to discuss this part of the appeal by the above defendant.

Sheshes 2, 3, 6, 7

However, according to the evidence duly admitted and adopted by the court below, even if there is a little difference in the degree with the above defendants' consent or implied consent, the joint defendant 1 of the court below can sufficiently recognize the fact that the defendant added the finch to the finch by inserting the finch to the patient's head finch. Thus, this part of the appeal by the above defendants is without merit.

B. Judgment on misapprehension of legal principles

(1) Defendants

㈎ 간호조무사의 진료보조행위의 범위

Article 58(2) of the Medical Service Act provides that "A nursing assistant may be engaged in supporting nursing services, notwithstanding the provisions of Article 25," and Article 2(1) of the Rules on Assistants and Medical Care Business Operators, which are the Ministry of Health and Welfare, provides that "A nursing assistant shall perform the following duties: 1. A nursing assistant shall perform the following duties; 2. A person shall provide assistance in nursing services; 2. A person shall provide assistance in medical treatment:

However, “medical assistance” in this context refers to the assistance of a physician in the course of performing medical treatment as the principal agent, and the preparation, arrangement, pure assistance during the process of a diagnosis or treatment, examination or treatment, and the provision of a neighboring flasium, etc. corresponding thereto (in this case, there is a difference between the degree of conduct that a nurse and a nurse may perform). In addition, regardless of whether a doctor enters the scene or not, if a doctor provides a oral instruction and explanation, and if a doctor provides a practical medical treatment, such act constitutes not a assistance in medical treatment but a medical treatment itself. Thus, such an assistant’s act constitutes a medical act beyond the scope of qualification, and constitutes a violation of Article 25 of the Medical Service Act.

㈏ 의료법 제25조 제1항 소정의 의료행위 해당 여부

Medical practice is not necessarily limited to the acts related to the prevention and treatment of diseases, and it includes the act of performing one which may cause harm to public health and hygiene unless medical personnel with medical function and knowledge do so (see Supreme Court Decision 91Do3219, May 22, 1992; Supreme Court Decision 99Do4542, Feb. 25, 2000; etc.). Thus, medical practice, such as cosmetic surgery without relation to the treatment of diseases, is also included in medical practice.

Therefore, when Defendant 1 performed the eyebrow surgery, the act that Defendant 1, co-defendant 1 of the court below, who is an assistant nurse, extracted the hair removed from the part of the patient's back head at a certain angle and then revises the direction of the hair so that the transplanted hair may lead to the upper part of the patient's hair, or the act that Defendant 2, 3, 4, 5, 6, and 7 of the court below, in performing the hair surgery, inserting the hair by inserting the hair up to the upper part of the head of the patient's hair, is naturally recognized as medical practice.

㈐ 소결론

As seen earlier, the co-defendant 1 of the court below, who is an assistant nurse, may not perform an act of inserting the hair in a way that knife the hair removed from the back part of the patient's head, who is beyond the scope of the medical assistance act, in a certain range, after extracting the hair, and modifying the direction of the hair so that the transplanted hair can lead to the upper part of the patient's hair (in the case of prompt eyebrow surgery), or an act of inserting the hair in a way that knifes the hair up to the knife part of the patient's head head (in the case of hair surgery), regardless of whether or not the defendants, who are medical doctors, are able to do so (in the case of hair surgery).

Therefore, as long as the defendants provided the above acts, which are part of the medical practice, to the above co-defendant 1, the above co-defendant 1 of the court below, they become co-defendant 1, and only part of the medical practice will be entrusted to the assistant nurse. However, as long as the above acts are viewed as medical practice, the illegality of the above part is maintained even if the defendants, who are doctors, directly involved in the process other than the above acts in the process of eyebrow surgery or hair surgery. Thus, there is no reason to discuss the appeal by the defendants.

Doz. Defendant 5

However, "act which does not violate social norms" under Article 20 of the Criminal Act refers to an act which can be accepted in light of the overall spirit of legal order or the social ethics or social norms surrounding it, and which act is legitimate that does not violate social norms, and the illegality of which act is excluded should be determined individually and reasonably under specific circumstances, under which the following requirements are met: (i) legitimacy of the motive or purpose of the act; (ii) reasonableness of the means or method of the act; (iii) balance between the protected interests and the infringed interests; (iv) urgency; and (v) supplementaryness that there is no other means or method other than the act (see Supreme Court Decision 98Do2389, Apr. 25, 200).

Upon examining the records in light of the above legal principles, although a co-defendant 1 of the court below, which is a assistant nurse, has certain degree of knowledge about the maternity surgery, it did not have systematic knowledge about the overall medical care, and the above defendant does not participate in a separate part of the above co-defendant 1 of the court below's act of inserting the hair in the manner of inserting the hair into a knife to the patient's head knife in the process of the hair surgery. Thus, the above defendant's act cannot be deemed as an act which can be acceptable in light of the overall legal order including the Medical Service Act or social norms. Thus, this part of the appeal by the above defendant is without merit.

C. Determination on the assertion on unfair sentencing (Defendant 1, 4, 5, 6, 7)

In light of the above circumstances, Defendant 4 and 6 had no criminal power at all, and there are circumstances that may be considered in light of the circumstances such as the fact that there is no adverse effect or post-treatment caused by the crime of this case. However, considering the above circumstances, the court below already sentenced the above Defendants to a fine for the crime of this case where the crime of this case does not seem to be contradictory, such as denying the crime of this case. If the above Defendants are neglected to perform the same procedure as the crime of this case, it is necessary to inform the above Defendants once again of the legislative purpose of the Medical Service Act to prevent danger to human life, body, or general health and hygiene. Upon examining all other circumstances that form the conditions for sentencing under Article 51 of the Criminal Act as shown in the records, the punishment imposed by the court below on the above Defendants is too heavy. Thus, this part of the appeal is without merit.

D. Ex officio determination

Before deciding on the assertion of unreasonable sentencing by Defendant 2 and 3, prior to the judgment on the argument of unfair sentencing, the public prosecutor examined the above Defendants ex officio, and the public prosecutor applied for the revision of indictment to change the facts charged against the above Defendants as stated in the following facts constituting a crime. Since this court permitted this, the judgment of the court below, which is based on the premise of the initial indictment, could no longer be maintained in this regard.

3. Conclusion

Accordingly, pursuant to Article 364(4) of the Criminal Procedure Act, each appeal filed by Defendant 1, 4, 5, 6, and 7 shall be dismissed, and pursuant to Article 364(2) and (6) of the same Act, the part against Defendant 2 and 3 among the judgment below shall be reversed, and the arguments shall be reversed, and the following decision shall be rendered again.

The summary of the facts constituting an offense and evidence acknowledged by this court is as follows: (a) deleted “surbrow” from the surgery column column Nos. 2 in the annexed sheet of crime (3) as indicated in the judgment of the court below; (b) deleted the facts constituting an offense listed in the annexed sheet Nos. 1 and 2; and (c) deleted the summary of the evidence, except for correcting the “1....... witness co-defendant 1’s written statement by the court below to “1... witness co-defendant 1’s written statement by the court below and the court below’s written statement by the party concerned” as stated in the corresponding column of the court below.

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

- Articles 66 subparag. 3 and 25(1) of the Medical Service Act, and Article 30 of the Criminal Act.

1. Invitation of a workhouse;

- Articles 70 and 69(2) of the Criminal Code

In light of the above circumstances, Defendant 2 is the first offender, Defendant 3 is deemed to have no same criminal history, and there are extenuating circumstances such as the fact that there is no side effect or aftermatha from the crime of this case, and that there is no patient suffering from the side effect or aftermatha from the crime of this case. However, considering the above circumstances, the court below already sentenced the above Defendants to a fine for the crime of this case where the nature of the crime of this case and the crime of this case are not less specific, such as denying the crime of this case, and the above Defendants do not seem to have any light against the crime of this case. If the above Defendants are neglected to perform the same procedure as the crime of this case, it is necessary to inform the above Defendants once again of the legislative purpose of the Medical Service Act, which aims to prevent any danger to human life, body, or general health and hygiene, and all other circumstances, which are the conditions for sentencing as stipulated in Article 51 of the Criminal Act as recorded in the records, and thus, the court below's sentence is too excessive.

Judges Shin Young-chul (Presiding Judge)