Whether abortion belongs to the legitimate business of a midwifery clinic;

A midwifery clinic is engaged only in assistance in the normal delivery of childbirth, and medical practices such as abortion surgery are prohibited under Article 25 of the Medical Service Act. Therefore, it cannot be viewed as included in the legitimate services of a midwifery clinic.

Article 5 of the Act on Special Measures for the Control of Public Health Crimes, Article 25 of the Medical Service Act

Defendant

Prosecutor and Defendant

Seoul Criminal Court of the first instance (71 High Court Decision 387)

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for a year and a fine of KRW 100,000.

One hundred and twenty days of detention days before the sentence of the original judgment shall be included in the above imprisonment.

If the above fine is not paid, the amount of KRW 1,000 shall be confined in the workhouse for the period converted into one day.

However, the execution of the above imprisonment shall be suspended for three years from the date of the final decision.

The gist of the defendant's appeal is as follows: First, the court below erred by misunderstanding the facts affecting the judgment or by misapprehending the legal principles of a legitimate act or an emergency evacuation.

1) The defendant, as a midwifery clinic, was the fetus at the time. The fetus was crossed, and the non-indicteds of the five-month pregnant women with a rapid pain and danger of the mother's life due to extreme decline, and the mother's body was put into the body part of the woman's body for the purpose of expanding the pain and danger of childbirth in order to reduce the pain and danger of childbirth. Thus, this is a legitimate act permitted as a midwifery clinic, and even if not, the court below erred in the misapprehension of the legal principles on the so-called act of assistance in child delivery or the act of emergency evacuation, although it was inevitable to rescue the mother's body's life. Second, the judgment of the court below against the defendant is unfair when considering the above circumstances and the fact that there was no fault during the period of assistance in child delivery, and all other circumstances such as family relations, etc.

Therefore, in light of the records, the first point of the above appeal is that the defendant, as a midwifery clinic, was a pregnant woman who is pregnant five months or more of March 8, 1971, and asked the non-indicted to abortion at the birth clinic in the management of the defendant, and accordingly, he can be recognized that the non-indicted was included in the non-indicted's womb to kill the above fetus at the time, and that the non-indicted was engaged in abortion at the 11:00 p.m. of the 11:0 p.m. of the 190 p.m. of the same month after the death, and the other evidences that the court below lawfully investigated and adopted were examined. Thus, since medical acts such as abortion operation are prohibited by Article 25 of the Medical Service Act, the defendant's act of abortion such as abortion operation is not justified until the defendant's act of abortion was committed with the opinion that there is no justifiable reason to believe that the defendant's act of abortion was an urgent action of abortion, or that the defendant's act of abortion was not included in the above legal principles.

Then, considering the following factors as to the second ground for appeal, in detail, such as the health team, motive, means, result, degree of damage, age of the defendant, character and conduct, environment, criminal records, and circumstances after the crime, etc., the amount of the sentence that the court below rendered against the defendant is too unreasonable. In this regard, the defendant's appeal is justified, and therefore, the judgment of the court below cannot be reversed.

Therefore, according to Article 364(6) of the Criminal Procedure Act, the judgment of the court below shall be reversed and the members thereof shall be decided again.

Criminal facts and summary of evidence

The criminal facts of the defendant recognized as a party member and the summary of the evidence are as shown in each corresponding case of the judgment of the court below, and all of them are cited in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

The court below held that the defendant's judgment falls under Article 5 of the Act on Special Measures for the Control of Public Health Crimes, Article 25 of the Medical Service Act, and Article 53 and Article 55 (1) of the Criminal Act, since the defendant is selected to be sentenced to a limited term of imprisonment and the circumstances are considered, the defendant shall be punished by imprisonment for one year within the scope of the term of imprisonment which has been reduced under Article 53 and Article 55 (1) of the Criminal Act, and the defendant shall be punished by a fine of one million won within the scope of the amount under Article 5 and the latter part of Article 5 of the Act on Special Measures for the Control of Public Health Crimes and shall be punished by a fine of one hundred and twenty thousand won if the defendant fails to pay the above fine under Articles 70 and 69 of the Criminal Act, the period of one thousand won shall be confined to the defendant's prison term of 120 days prior to the sentence of the court below under Article 57 of the same Act, and the defendant's punishment against this case shall be included in the above imprisonment for a considerable period of two years after the sentence.

It is so decided as per Disposition for the above reasons.

Justices Kim Yong-chul (Presiding Justice)