207Do10542 Violation of the Medical Service Act

GangnamO (DOTE -OTPPONS), LOSE

Seoul Housing IT I T

LTE in the Gun of the original domicile

Prosecutor

Law Firm

Attorney Lee In-bok

Seoul Eastern District Court Decision 2007No815 Decided November 15, 2007

February 28, 2008

The appeal is dismissed.

The grounds of appeal are examined.

1. Article 25 (3) of the former Medical Service Act (amended by Act No. 8007 of Sep. 27, 2006; hereinafter the same) provides that "any person shall not introduce, arrange, or induce a patient to a medical institution or a medical person for profit, such as exempting or discounting the patient's share under the National Health Insurance Act or the Medical Care Assistance Act, providing money, goods, etc., or providing transportation to many and unspecified persons, etc., and induce a patient to do so." "The above provision provides that "the person's share" refers to a part of the cost of benefits where a subscriber or his/her dependent under the National Health Insurance Act or a beneficiary under the Medical Care Assistance Act bears part of the cost of benefits, and the beneficiary of benefits under the National Health Insurance Act and the Medical Care Assistance Act shall be interpreted as a part of the cost of benefits.

As medical expenses for treatment, interpreting that the medical person's own amount is "the principal's charges" under the above provision even when the patient himself/herself freely determines the amount and bears the total amount of the expenses, is an excessive expansion and interpretation of penal provisions, and it is reasonable to view that it is not permissible in violation of the principle of no punishment without law.

In accordance with these legal principles, the court below is just in holding that in the case of this case, the defendant's treatment at discount is not a kind of "the act of discounting the individual's charges under the National Health Insurance Act or the Medical Care Assistance Act" on the ground that the medical expenses are discounted, and it does not constitute "the act of discounting the individual's charges under the National Health Insurance Act or the Medical Care Assistance Act" on the ground that the defendant's treatment at discount is not a medical treatment under the National Health Insurance Act or the Medical Care Assistance Act.

There is no illegality in law.

2. The legislative intent of Article 25(3) of the former Medical Service Act is to prevent corruption, such as giving and receiving of money and valuables, and to prevent unreasonable excessive competition among medical institutions around the patient's attraction. Since Article 46 of the former Medical Service Act provides that a medical corporation, medical institution, and medical personnel can make an advertisement in a manner prescribed by the Ordinance of the Ministry of Health and Welfare as long as the purpose of profit-making is to prevent consumers from completely blocking access to the patient. However, the above act in the process of attracting patients can be punished for violation of Article 46 of the former Medical Service Act, barring special circumstances such as providing money and valuables to the patient or the actor in the process of attracting patients, the act of attracting patients by the medical institution and the medical personnel cannot be deemed as "inciting the patient" under Article 25(3) of the former Medical Service Act (see Supreme Court Decision 2004Do5274, Oct. 27, 2004; 2004Do52774, Apr. 27, 2007).

In light of the evidence duly adopted and examined by the court of first instance, the court below acknowledged that the defendant's act was posted on the defendant's website "the defendant's employee lecture" for about 50 days on July 2006, 206 on the advertisement that 50% discount is placed on the defendant's 's 's 'the defendant's 'the defendant's 's 'the 'the 'the 'the 'the 'the 'the 'the 'the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' the ' advertisement of this case was lower than the 's ' other medical institution, and it is not clear.

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

Justices Kim Hwang-sik

Justices Kim Young-young

Justices Lee Hong-hoon

Jeju High Court Justice Ahn Dai-hee