[1] Whether the death of a fetus as a result of abortion treatment has an impact on the establishment of the crime of abortion (negative)

[2] The case affirming the judgment of the court below which held that in case where the defendant, who is a woman in childbed and doctor, conducted abortion by the method of induced delivery by drugs, but the fetus was born in the state of premature baby, and caused the baby to die, the defendant's criminal intent of murder is recognized

[3] The meaning of "a case where the maintenance of pregnancy under Article 14 (1) 5 of the Mother and Child Health Act is or may be seriously harmed by the mother's health for health or medical reasons"

[4] Whether allowing a patient to enter into a contract for medical treatment delegation by proposing or promising illegal medical acts constitutes "induceivement" under Article 25 (3) of the former Medical Service Act (affirmative)

[5] The case holding that the act of the defendant, who is a woman in childbirth and doctor, promising to conduct an illegal abortion during consultation on abortion by using his Internet homepage bulletin board, and soliciting and guiding the visit to the hospital constitutes "induction" under Article 25 (3) of the former Medical Service Act

[1] The crime of abortion is established by artificially discharging the fetus from the mother's body or killing it in the mother's body prior to the natural delivery of the fetus, and whether the fetus died or not does not affect the establishment of the crime of abortion.

[2] The case affirming the judgment of the court below which held that in case where the defendant, who is a obstetrician and doctor, conducted abortion by the method of induced delivery with drugs, but the fetus was born in the state of premature baby, and caused the baby to die by injecting chlolium, the defendant's act of injecting chlolium cannot be deemed as merely an act to complete abortion, and even if the living baby is found to be less likely to live normally, if the baby who was born without confirmation of the state or minimum medical practice, actively injected chlolium to kill the baby and caused the death of the baby, the defendant's criminal intent to murder the baby is recognized.

[3] One of the cases where an artificial abortion operation is permitted, "a case where the maintenance of a pregnant woman under Article 14 (1) 5 of the Mother and Child Health Act is or is likely to seriously harm the health of the pregnant woman for health and medical reasons" refers to the case where the maintenance of pregnancy causes serious danger to the life and health of the pregnant woman, and it is recognized that an artificial abortion operation is needed to save the life and health of the pregnant woman even if the pregnant woman's life and health are met.

[4] The term "induction" under Article 25 (3) of the former Medical Service Act (amended by Act No. 6686 of March 30, 2002) means the act of inducing a patient to enter into a contract for medical treatment with a specific medical institution or a specific medical person by deceiving or treating the patient. The act of inducing patients by a medical person or a founder of a medical institution also constitutes inducement under Article 25 (3) of the same Act in case where there are special circumstances, such as the provision of money or goods to the patient or an actor, or fundamental harm to the order of the medical market, and "the proper medical treatment and the protection and promotion of the health of the people" is for the purpose of the enactment of the Medical Service Act (Article 1 of the same Act). In light of the purpose of the enactment of the Medical Service Act (Article 1 of the same Act), medical personnel are prohibited from providing money or goods for the purpose of inducing patients while performing lawful medical treatment, and therefore, medical personnel are prohibited from refusing medical treatment and inducing patients to enter into a contract for medical treatment by promising.

[5] The case holding that the defendant's act of soliciting the visit of his hospital and guiding the visit of his hospital while promising that the abortion may be performed even if a legitimate induced abortion operation is not allowed by counseling board on his Internet homepage that he opened, can be viewed as "induction" under Article 25 (3) of the former Medical Service Act (amended by Act No. 6686 of March 30, 2002)

[1] Article 270 (1) of the Criminal Act / [2] Articles 250 (1) and 270 (1) of the Criminal Act / [3] Article 14 (1) 5 of the Mother and Child Health Act / [4] Articles 1 and 25 (3) of the former Medical Service Act (amended by Act No. 6686 of March 30, 2002) / [5] Article 25 (3) of the former Medical Service Act (amended by Act No. 6686 of March 30, 2002)

[3] Supreme Court Decision 84Do1958 delivered on June 11, 1985 (Gong1985, 1025) / [4] Supreme Court Decision 2004Do5724 delivered on October 27, 2004 (Gong2004Ha, 1977)

Defendant

Prosecutor and Defendant

Law Firm, Pacific, Attorneys Nacheon-soo et al.

Seoul High Court Decision 2001No2997 delivered on May 1, 2003

The judgment below is reversed and the case is remanded to the Seoul High Court. The defendant's appeal is dismissed.

1. Judgment on the defendant's appeal

A. The court below determined that the crime of abortion is established by artificially discharging a fetus out of the mother body or killing it out of the mother body or by killing it out of the mother body of the mother body before the natural part of the fetus, since it does not affect the establishment of the crime of abortion, it cannot be deemed that the defendant's act of injecting the baby into the baby born and is merely an action to complete abortion, and even if the baby born and born are found to have a chance to live normally, it cannot be deemed that the defendant's act of injecting the baby born and has a chance to live normally, and even if the baby born and is found to have a chance to live normally, it should be deemed that the defendant had the intention to kill the baby that caused the death of the baby by actively injecting the baby without confirming the situation or conducting the minimum medical practice.

In light of the records, the above selection of evidence, fact-finding, and judgment of the court below are justified, and there is no error of law by misunderstanding facts against the rules of evidence or misunderstanding legal principles as to the criminal intent of murder, as alleged in the grounds of appeal.

B. One of the cases where an artificial abortion operation is permitted, "a case where the maintenance of a pregnant woman under Article 14 (1) 5 of the Mother and Child Health Act is or is likely to be seriously harmed the health of the pregnant woman for health and medical reasons" refers to the case where the maintenance of pregnancy causes serious danger to the life and health of the pregnant woman and where it is deemed necessary to undergo an artificial abortion operation to save only the life and health of the pregnant woman (see Supreme Court Decision 84Do1958, Jun. 11, 1985).

In light of the above legal principles, even if the court below stated the "Anomaly with respect to the fetus" in the medical records of non-indicted 2, "bowel with respect to the fetus" in the medical records of non-indicted 3, and "C.H.D. with respect to the fetus" in the medical records of non-indicted 4, as alleged by the defendant, the court below's decision that the above reasons alone are not sufficient to deem that there are reasons under Article 14 (1) 5 of the Mother and Child Health Act, and there are no errors in the misapprehension and application of Article 14 (1) 5 of the Mother and Child Health Act, as alleged in the grounds for appeal.

In addition, the above determination by the court below cannot be deemed to be premised on the defendant's actual burden of proof as to the grounds for excluding illegality under Article 14 (1) 5 of the Mother and Child Health Act. Thus, the argument in the grounds of appeal on this point is without merit.

On the other hand, the argument that the act of abortion against Nonindicted 2, 3, and 4 was a legitimate act that does not violate the social rules cannot be a legitimate ground for appeal as a new argument at the appellate court. In addition, according to the records, it is difficult to view the Defendant’s act of abortion against Nonindicted 2, etc. as a justifiable act that does not violate the social rules.

2. Judgment on the prosecutor's appeal

A. The court below found the defendant's career and the name, location, and telephone number of the hospital of the defendant on the screen while providing medical counseling to the persons who have access to the defendant through the Internet homepage, and confirmed that he/she could perform abortion operations, but it is not sufficient to view that the defendant had induced patients for profit since he/she provided medical counseling and provided answers to abortion operations accordingly, and thus, found the defendant not guilty of this part of the facts charged.

B. However, the term "inducing" under Article 25 (3) of the former Medical Service Act (amended by Act No. 6686 of Mar. 30, 2002; hereinafter the same) refers to inducing a patient to enter into a contract for medical treatment with a specific medical institution or medical person by deceiving or treating the patient. Under special circumstances such as inducing a patient by a medical person or founder of a medical institution also constitutes inducement under Article 25 (3) of the same Act (see Supreme Court Decision 2004Do5724, Oct. 27, 2004). In light of the purpose of the enactment of the Medical Service Act (amended by Act No. 6686, Mar. 30, 200), the term "inducing to protect and promote the health of the public" refers to the act of inducing a patient to enter into a contract for medical treatment with a specific medical institution or medical person, as well as the act of inducing a patient to enter into a contract for medical treatment under Article 25 (3) of the same Act.

In light of the records, it can be acknowledged that the defendant provided abortion counseling using the counseling board on his own opened (title omitted) and the Internet homepage or consulted on post-ex post-explosion, etc., and that he provided the defendant with the defendant's medical history and the location, name, telephone number, etc. of the defendant's hospital as soon as possible and that the defendant provided the defendant with the defendant's medical service and the location, name, telephone number, etc. of the defendant's hospital on the screen that it is not permitted under the Mother and Child Health Act. Thus, the defendant's act of soliciting the defendant's hospital to promptly visit the defendant's hospital and guiding the defendant to enter into a medical contract for abortion operation through the above commitment, solicitation, and guidance rather than providing medical information and consultation.

Therefore, the court below should have examined the details of the defendant's Internet homepage bulletin board's detailed questions and answers in a more detailed manner to determine whether there was an incentive for the patient by making a clear statement about the illegal medical practice, but without further examining and determining it specifically, it is nothing more than providing medical counseling, or it is a mere false or exaggerated advertisement, and thereby not guilty of this part of the facts charged. The court below erred by misapprehending the legal principles as to Article 25 (3) of the Medical Service Act and failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.

3. Conclusion

Therefore, the prosecutor's appeal on the part of violation of the Medical Service Act in the judgment of the court below is with merit, and the defendant's appeal on the part of the crime of murder and the crime of occupational abortion is without merit. Since all of the judgment of the court below are concurrent crimes under the former part of Article 37 of the Criminal Act, the judgment of the court below is reversed and remanded to the court below. The defendant's appeal

Justices Jack-dam (Presiding Justice)