[1] In a case where the defendant, who is a medical doctor, was prosecuted for deceiving the medical care costs by claiming medical care benefit costs to the National Health Insurance Management Corporation by pretending that the medical examination was conducted by telephone, the case affirming the judgment below which found the defendant guilty of fraud

[2] Whether a medical practitioner handling narcotics, etc.’s administration of narcotics, etc. within the necessary scope for the treatment of his/her own disease or for other medical purposes constitutes an act of medication, etc. for “other than business purposes” of a person handling narcotics, etc. prohibited under the former Act on the Control of Narcotics, etc. (negative), and whether it should be viewed differently solely on the basis that the medication for himself/herself was made through a prescription

[1] The case affirming the judgment below which found the defendant guilty on the ground that the medical examination based on the former Rules on the Medical Care Benefits under the National Health Insurance (amended by Ordinance of the Ministry of Health and Welfare No. 19, Mar. 19, 2010) (amended by Ordinance of the Ministry of Health and Welfare), which was enforced at the time, provides only the medical care benefits on the premise of internal source, and the telephone medical examination and the provision of medicine based on this is not subject to medical care benefits, and thus, even if the telephone medical examination falls under the "direct medical examination" as provided by Article 17 (1) of the former Medical Service Act (amended by Act No. 9386, Jan. 30, 2009), if it can not be deemed as subject to medical care benefits solely on such circumstance, and thus, it constitutes an unlawful act of deception and constitutes a criminal intent of the defendant.

[2] The former Medical Service Act (amended by Act No. 9386, Jan. 30, 2009) does not provide for the prohibition of a doctor’s direct diagnosis, medication, and treatment of one’s own disease. Furthermore, the former Act on the Control of Narcotics (amended by Act No. 9932, Jan. 18, 2010) aims at preventing health hazards caused by misuse or abuse of narcotics by properly treating and managing the narcotics (Article 1). In addition, unless a doctor prohibits a doctor from administering narcotics or psychotropic drugs (hereinafter “narcotics, etc.”) for the purpose of medical treatment, not for misuse or abuse of the narcotics, but for medical treatment of his own disease or for other medical purposes, it is permissible to administer narcotics, etc. within the necessary scope. Furthermore, if a doctor’s medical license is necessary for administering narcotics, etc. for the purpose of medical treatment of his/her own disease, the former Act on the Control of Narcotics, etc. (amended by Act No. 9932, Jan. 18, 2010).

[1] Article 347 (1) of the Criminal Act; Article 17 (1) of the former Medical Service Act (Amended by Act No. 9386, Jan. 30, 2009); Article 39 (1) (see current Article 41 (1)) of the former National Health Insurance Act (Amended by Act No. 9932, Jan. 18, 2010); Article 41 (2) of the former Act on the Control of Narcotics (Amended by Act No. 9932, Jan. 18, 2010); Article 1 and subparagraph 6 (i) of Article 2 of the former Act on the Control of Narcotics (Amended by Act No. 9932, Jan. 18, 2010; see current Article 2 subparagraph 5 (i)); Articles 4 (1) and 5 (1) and 61 (1) 5 (see current Article 61 (1) 7 (see current Article 61 (1) 7

Defendant

Defendant

Law Firm Tongmun, Attorneys Park misunderstanding-con et al.

Seoul Central District Court Decision 2011No596 decided July 28, 2011

The conviction part of the judgment below is reversed, and that part of the case is remanded to the Panel Division of the Seoul Central District Court.

The grounds of appeal are examined.

1. As to the fraud caused by the claim for medical care benefit cost of the most medical care benefit cost of the private mental therapy

Examining the records in light of the relevant legal principles, the court below’s finding the Defendant guilty of this part of the facts charged is just and acceptable, and contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles as to confession and reinforcement evidence.

2. On the charge of fraud by the claim for medical care benefit costs, after hearing the statement of the excursion ship

A. Article 17(1) of the former Medical Service Act (amended by Act No. 9386, Jan. 30, 2009; hereinafter the same) provides that “A medical doctor engaged in the business of medical treatment, who directly conducted a medical examination, or who prepared a medical certificate, a written autopsy, a certificate, or a prescription, and shall not be issued to the patient. This provision merely prohibits issuing a prescription without his/her own medical examination, but does not prohibit the general public from conducting a face-to-face medical examination or issuing a prescription without sufficient medical examination. Therefore, in light of the principle of no punishment without the law, in particular, it cannot be deemed that “direct medical examination” was not conducted solely on the ground that the medical examination (hereinafter “tel”) was conducted by telephone or video, etc. (see Supreme Court Decision 2010Do1388, Apr. 11, 2013).

Meanwhile, according to the former National Health Insurance Act (amended by Act No. 932, Jan. 18, 2010), medical care benefits refer to diagnosis, examination, provision of medicine and materials for medical treatment, treatment, surgery, and other medical treatment, prevention, rehabilitation, hospitalization, etc. conducted for the disease, injury, childbirth, etc. of the insured and their dependents (Article 39(1)). Acts and subordinate statutes governing national health insurance include all medical care benefits in principle, and the detailed standards and methods for the application of medical care benefits are governed by the Regulations on the Standards for Medical Care Benefits under National Health Insurance and the Public Notice of the Minister of Health and Welfare. (2) It is interpreted that medical care benefits include medical care benefits through various procedures prescribed by the Regulations on the Standards for Medical Care Benefits under National Health Insurance (see, e.g., Supreme Court en banc Decision 2010Du27639, 27646, Jun. 18, 2012).

B. According to the health team and the fact-finding results on the first instance Health Insurance Review and Assessment Service, the notice of the Minister of Health and Welfare based on the former Regulations on the Standards for Medical Care Benefits under National Health Insurance (amended by Ordinance of the Ministry of Health and Welfare No. 1, Mar. 19, 2010; hereinafter the same), which was enforced at the time of the facts charged, determines only the medical examination premised on internal source as the subject of medical care benefits, and the telephone medical examination and the provision of medicines based thereon is not subject to medical care benefits.

Thus, even if the telephone medical examination constitutes the "direct medical examination" as provided by Article 17 (1) of the former Medical Service Act, so long as such circumstance alone cannot be viewed as the subject of medical care benefits, it should be viewed that the defendant's attempt to request medical care benefits based on the phone medical examination and attempted to do so, or the telephone medical examination can be included as the subject of medical care benefits through the procedure prescribed by the former Regulations on the Standards for Medical Care Benefits under the National Health Insurance", as in this case, the claim for medical care benefits based on the fact that the phone medical examination was subject to medical care benefits as in this case constitutes fraud by deception, and the defendant's intent of unlawful acquisition is also recognized

C. Therefore, the court below is just to determine that the telephone medical examination does not constitute a diagnosis under the former Medical Service Act; however, it is just to conclude that the court below found the defendant guilty of this part of the charges of fraud that the defendant by claiming medical care benefit costs as if the defendant was the internal medical examination even though the medical examination was conducted by telephone, and obtained the medical care fees, etc., by fraud. In so doing, contrary to what is alleged in the grounds of appeal, there is no error of law such as misunderstanding facts in violation

3. As to the fraud caused by the claim for the most medical care benefit cost for others

Examining the records in light of the relevant legal principles, the court below is just in finding the Defendant guilty of this part of the facts charged on the grounds as stated in its holding, and contrary to what is alleged in the grounds of appeal, there is no error of misapprehending the legal principles as to deception, intention of deception, unlawful acquisition, intent of loss, etc. in fraud, nor any error of misapprehending the legal principles as to

4. As to the violation of the Act on the Control of Narcotics, Etc. ( native)

A. The summary of this part of the facts charged is as follows.

The Defendant is a medical practitioner handling the psychotropic drugs as a medical specialist operating a mental medical clinic, and even if a medical practitioner handling the psychotropic drugs was not allowed to administer the psychotropic drugs or issue a prescription for the psychotropic drugs for any purpose other

① On October 23, 2008, around 2008, a prescription was issued in the name of the Nonindicted Party in the name of the staff of the hospital, other than the Defendant, in order to cover the psychotropic drugs, to alleviate the symptoms of the Defendant’s influorial symptoms, etc., and subsequently, a prescription was issued in the name of the Nonindicted Party in the name of the staff of the hospital, other than the Defendant himself/herself, on a stroke-type, psychotropic drugs.

② On February 24, 2009, a prescription of 30 days in the name of the above Nonindicted Party was issued for the Defendant himself/herself, and then a Alflade medication containing psychotropic drugs was made.

B. The court below affirmed the judgment of the court of first instance that " Even if the defendant, as a doctor qualified to handle narcotics, administered psychotropic drugs by issuing a prescription in order to resolve or mitigate his influences, etc., he shall not be deemed to have issued a prescription at will for the purpose of business purposes by using the name of another person," and found the defendant guilty of this part of the facts charged on this premise.

C. However, we cannot agree with the above determination by the court below for the following reasons.

(1) Article 2 subparag. 6 (i) of the former Act on the Control of Narcotics, Etc. (amended by Act No. 9932, Jan. 18, 2010; hereinafter “former Narcotics Control Act”) provides that a medical practitioner handling narcotics, etc. who is one of the narcotics, etc., administers or administers narcotics or psychotropic substances (hereinafter “narcotics, etc.”) for the purpose of medical treatment at a medical institution, or issues a prescription stating narcotics, etc. (Article 2 subparag. 6 (i)), and further, a person handling narcotics, etc. shall not perform any act of medication, etc. for any purpose other than his/her duties (Article 5(1) and the main sentence of Article 4(1)).

However, it cannot be deemed that a doctor directly examines, administers, and treats his own disease, and it does not constitute a medical practice. Moreover, the former Medical Service Act does not provide for the prohibition thereof. Furthermore, the purpose of the former Narcotics Control Act is to prevent health harm caused by misuse or abuse of narcotics by properly treating and controlling narcotics, etc. (Article 1). In addition, unless there is a provision prohibiting a doctor who is a person handling narcotics, etc. from administering narcotics, etc. for the purpose of medical treatment for himself/herself, unless there is a provision prohibiting the act of administering narcotics, etc. for the purpose of medical treatment for himself/herself, it shall be deemed that a doctor is allowed to administer narcotics, etc. within the necessary scope, not

In addition, if the administration of narcotics, etc. to a doctor is made within the necessary scope for the purpose of medical treatment, even if the prescription was issued to a third party instead of the doctor himself/herself, such circumstance alone alone cannot be deemed to be a medication for “non-business purposes”.

The record reveals the following facts.

㈎ 피고인은 ‘비기질적 불면증’을 이유로 자신에 대하여 처방전을 발부하고서, ① 2007. 12. 21. 향정신성의약품인 라제팜정과 트리람정 30일분을 처방하여 투약하였고, ② 2008. 1. 21. 향정신성의약품인 라제팜정, 졸피람정, 트리람정 및 디아제팜정 15일분을 처방하여 투약하였으며, ③ 2008. 2. 2. 향정신성의약품인 라제팜정, 졸피람정 및 트리람정 30일분, 향정신성의약품인 디아제팜정 15일분을 처방하여 투약하였고, ④ 2008. 4. 1. 향정신성의약품인 라제팜정, 졸피람정, 트리람정, 알프람정 및 로라반정 28일분을 처방하여 투약하였으며, ⑤ 한편 2008. 5. 10.에는 향정신성의약품이 아닌 약품만을 처방하여 투약하였고, ⑥ 2008. 8. 21. 다시 향정신성의약품인 졸피람정 28일분을 처방하여 투약하였다.

㈏ 이후 피고인은 이 부분 공소사실과 같이 직원인 공소외인에 대한 처방전 발부를 통하여, ① 2008. 10. 23. 향정신성의약품인 졸피람정과 라제팜정 30일분을 처방하여 투약하였고, ② 2009. 2. 24. 향정신성의약품인 알프람정 30일분을 처방하여 투약하였다.

㈐ 그러나 그때부터 피고인에 대하여 경찰 내사가 착수된 2009. 8. 20.경까지 피고인이나 공소외인에 대하여 향정신성의약품에 관한 처방전이 발부된 적이 없었다.

In light of the following circumstances, which are known in the above facts or disclosed additionally in the record, the evidence submitted by the prosecutor alone cannot be readily concluded that the Defendant, who is a person handling narcotics, was not for the treatment of any climatic infertility, but for the treatment of any climatic inception that the Defendant, as a medical specialist, suffered from the psychotropic drugs by issuing a prescription to the Nonindicted Party, and that it was not for the treatment of any climatic inception or within the scope necessary for such treatment, and that it was proved without any reasonable doubt.

① The Defendant, from December 2007 to August 2008, administered psychotropic drugs on a regular basis by issuing a prescription to himself on the ground of infection in quality.

② It is reasonable to deem that the Defendant did not intend to get psychotropic drugs more than the daily prescription amount as determined by each prescription because the prescription period in his own name and the prescription period in the name of the Nonindicted Party overlap when he administered psychotropic drugs through a prescription issued to him or the Nonindicted Party.

③ The Defendant’s entire period of medication was shorter than the period from December 2007 to February 2009. However, considering the date and time of each prescription and the amount of prescription, there were several occasions in which the volume which has not been administered for several months during the middle of that period (3 months during the period from April 1, 2008 to August 21, 2008; approximately 28 days during the period from 28 days prescribed on August 21, 2008 to which the prosecution was instituted from August 23, 2008; approximately 1 months during the period from 30 days prescribed on October 23, 2008 to 30 days before the date of prosecution was instituted; the period from 30 days after 30 days after October 23, 2008 to 20 days before February 28, 2009).

④ From February 24, 2009, the public prosecution took place on the 30-day prescription, which was initiated, the Defendant did not have been given prescription for psychotropic drugs through a prescription issued to himself/herself or the Nonindicted Party for about 5 months from the commencement of internal investigation to August 20, 209.

⑤ On the record, there is no evidence that the defendant administered psychotropic drugs by issuing a prescription to a third party other than the non-indicted, or that the amount of psychotropic drugs, which the defendant administered by issuing a prescription to himself or the non-indicted, or the amount of such medication, is irrelevant to the treatment of the non-indicted non-indicted sworn that the defendant stated in his or her medical prescription from the previous time, or that it exceeds the extent necessary for the treatment.

Therefore, the judgment of the court below which found the defendant guilty of this part of the facts charged is erroneous in violation of logical and empirical rules or by misapprehending the legal principles as to medication for "other purpose than business" of a person handling narcotics under Article 5 (1) of the former Narcotics Control Act, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

5. Scope of reversal

Therefore, the part of the judgment of the court below against the "Act on the Control of Narcotics, Etc." should be reversed. However, since the court below recognized this part and the remaining guilty part as concurrent crimes under the former part of Article 37 of the Criminal Act and sentenced to a single punishment, the judgment of the court below which found the guilty part in the

6. Conclusion

Therefore, the guilty portion of the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)