2015 Highest 8406 Violation of the Act on Special Measures for the Control of Public Health Crimes (Unlawful Medical Service Providers)

1. A or a nurse;

Residence

Reference domicile

2. B, intention

Residence

Reference domicile

Kim Yong- rules (prosecutions) and the largest State (Trial)

Attorney Park Jin-jin (private ships for all of the defendants)

October 6, 2016

Defendant A’s imprisonment with prison labor for two years and fines for 3,00,000 won, Defendant B’s imprisonment for one year and a fine for 2,00,00 won;

each of the above provisions shall apply.

Defendant who converted the amount of KRW 100,000 into one day when the Defendants did not pay the above fine;

shall be confined in a workhouse.

except that from the date this judgment became final and conclusive, for 3 years for Defendant A, and for 2 years for Defendant B

The execution of the above imprisonment shall be suspended.

To order Defendant A to provide community service for 80 hours.

To order the Defendants to pay an amount of money equivalent to the above fine.

Facts of crime

No person other than a medical person shall perform medical practice.

Defendant B is the director of the ○○○○○○○○○○○○○○○ urology department located in the Dong-dong Incheon Nam-gu, Incheon. Defendant A is a person qualified as an assistant nurse. Defendant A, who is not a doctor, has the ability to perform medical acts, such as a light surgery, and the Defendants agreed to pay monthly salary of KRW 2 million and KRW 2 million, and to provide 7 to 10% incentives if there is an surgery patient. Defendant A conspired to perform medical acts, such as diagnosis, surgery, etc. as if he/she was a deputy director.

1. On July 10, 2012, the Defendants: (a) around July 10, 2012; (b) Defendant B, in the counseling room connected to the above clinic; (c) equipped with a book, chair, and sexual intercourse; (d) equipped with the front of the book with equipment to treat A patients by having a professional clinic, such as a man’s hair, spologic surgery, etc.; and (e) Defendant A provided the above counseling room with the name tag A’s name tag “A” on the face of the doctor in the above counseling room; and (c) provided the patient Kim Man who was born with the doctor in the above counseling room with the face of the name tag A, injecting the substitute for the part of the spoke and the spologic part; and (d) provided medical treatment with the content of the medical examination and treatment.

From that time to November 11, 2014, the Defendants conspired to give medical treatment to 11 patients, such as the above Kim Madle, and entered the contents of the medical treatment in the medical records.

2. On January 10, 2015, the Defendants: (a) around 00, at the counseling room in the above members of the Assembly; (b) Defendant A, who visited Kim Jong-gu to undergo a scopic surgery, scop out of the bar; (c) scopic flag, and scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic sc

Accordingly, the Defendants conspired to engage in the business of unlicensed medical treatment from July 10, 2012 to January 10, 2015 for profit-making purposes.

Summary of Evidence

1. Defendants’ partial statement

1. Each prosecutor and police suspect interrogation protocol against the Defendants

1. Each legal statement of the witness Kim Jong-chul and Lee ○○;

1. The prosecutor's statement concerning ○○;

1. Investigation report (the call of a retired nurse as a counter party), investigation report (the reference witness Kim ○○ currency);

1. 15 copies of on-site photographs, internal photographs of a hospital, and medical records;

Application of Statutes

1. Relevant Article of the Criminal Act and the selection of punishment for the crime;

Article 5 subparagraph 1 of the Act on Special Measures for the Control of Public Health Crimes, Article 27 (1) of the Medical Service Act

each inclusive, the choice of each limited term

1. Discretionary mitigation (Defendant B);

Articles 53 and 55(1)3 of the Criminal Act

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Suspension of execution;

Article 62 (1) of each Criminal Code (The following favorable circumstances shall be considered among the reasons for sentencing)

1. Social service order (Defendant A);

Article 62-2 of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Reasons for sentencing

1. Scope of the recommended sentences according to the sentencing criteria;

[Scope of Recommendation Form]

Illegal Medical Practice Type 2 (Business Unlicensed Practice) Basic Area (one year to six years)

【Special Convicted Persons】

None

2. Determination of sentence;

In the case of Defendant A, the following facts: (a) there was a history of having been sentenced to a fine of a large amount twice for a similar crime; (b) a crime was committed over a considerable period of time; and (c) a reflective appearance does not appear; (c) there was no criminal record exceeding a fine; (d) there was no particular criminal record other than a fine sentenced due to drinking driving; and (e) in the case of Defendant B, an act related to an intrusion, such as surgery, is not included in the contents of prosecution, under favorable circumstances; and (e) the punishment shall be determined as per the order, taking into account all the conditions of punishment, such as the age, character and conduct, environment, motive and circumstance of the Defendants, and the circumstances after the crime.

Judgment on the Defendants and defense counsel's assertion

1. The defendants and their defense counsel's assertion

The defendant A, as an assistant nurse, only assisted the medical treatment of the defendant B, who is a doctor, and there was no conspiracy to conduct non-licensed medical practice for profit.

2. Relevant legal principles and determination

A. Relevant legal principles

(1) Article 5 of the Act on Special Measures for the Control of Public Health Crimes (hereinafter “Act”) provides that a person who is not a medical doctor shall be subject to criminal punishment in violation of Article 27 of the Medical Service Act for a commercial purpose. Article 27 of the Medical Service Act prevents any person, other than a medical person, from providing medical services. Here, medical practice refers to performing diagnosis, autopsy, prescription, medication, surgery, etc. with the experience and function based on professional knowledge. Medical practice requires high level of professional knowledge and experience and is closely related to human life, body, or public health. 5, the Medical Service Act provides strict requirements for qualifications to become medical personnel, and provides that a person who is not a medical doctor shall be allowed to engage in medical practice for a non-profit purpose, and thus, shall not be subject to criminal treatment for a person’s life, body, or public health, and shall not be subject to criminal treatment for a specific purpose of development of medical practice in light of social norms, and thus, it cannot be determined specifically by the Supreme Court.

(See) "Purpose for profit" under Article 5 of the Act refers to the purpose of acquiring economic benefits (see Supreme Court Decision 2009Do4783, Oct. 29, 2009, etc.).

(2) A nursing assistant is merely capable of assisting or providing medical treatment assistance to a nurse, and a physician may instruct or delegate a nurse with assistance in medical treatment, but it is not permissible to direct or delegate a physician with only medical treatment (see Supreme Court Decision 2010Do2755, May 13, 2010, etc.).

B. Determination

6) Comprehensively taking account of the evidence duly admitted and examined by the court, the following facts were revealed: (i) the defendant was informed of the fact that he/she was not a doctor of the above hospital for light surgery; (ii) the defendant was mixed with Kim ○ without a doctor's involvement; and (iii) the defendant was informed of the above fact that he/she was not a doctor of the above hospital; (iv) the patient was not a doctor of the above hospital; and (v) the patient was informed of the above fact that he/she was not a doctor of the above medical examination and treatment; and (v) the patient was informed of the fact that he/she was not a doctor of the above medical examination and treatment; and (v) the patient was informed of the fact that he/she was not a doctor of the above medical examination and treatment; and (v) the patient was informed of the fact that he/she was not a doctor of the above medical examination and treatment; and (v) the patient was informed of the fact that he/she was not a doctor of the above medical examination and treatment before being conducted by the doctor of the above medical examination and treatment.

Judges Lee Lee Jae-hoon