Whether an act of preparing and delivering a prescription by falsely stating the patient's name and resident registration number even after a medical doctor, etc. diagnosis a third person who is not a patient entered in a prescription violates Article 17 (1) of the Medical Service Act (affirmative)

A patient’s treatment through occupational work or collaboration between a doctor, dentist, etc. (hereinafter “doctor, etc.”) and a pharmacist is essential under the premise that the patient’s identity is the other party to the preparation and taking of medicines by a doctor, etc. and a pharmacist. The identity of the patient is bound to be guaranteed through the initial prescription written by a doctor, etc.. As such, “the patient’s name and resident registration number” as prescribed by Article 12(1)1 of the Enforcement Rule of the Medical Service Act among the matters stated in a prescription written by a doctor, etc. pursuant to Article 18 of the Medical Service Act refers to a specific element of the treatment act. Therefore, if a doctor, etc., who is obligated to directly examine a patient pursuant to Article 17(1) of the Medical Service Act refers to a third party, other than a person written by a doctor, etc. as a patient, and a doctor, etc., prepares and issues a prescription by falsely entering the patient’s name and resident registration number in the prescription, such act shall be deemed to violate Article 17(1) of the Medical Service Act.

Articles 17(1) and 18(1) of the Medical Service Act; Article 89 of the former Medical Service Act (Amended by Act No. 10387, Jul. 23, 2010); Article 12(1)1 of the Enforcement Rule of the Medical Service Act; Articles 23(3), 26, and 27 of the Pharmaceutical Affairs Act

Defendant

Defendant

Law Firm Taese, Attorneys Lee Gyeong-soo et al.

Seoul Central District Court Decision 2011No2035 Decided October 20, 2011

The appeal is dismissed.

The grounds of appeal are examined.

1. Article 17(1) of the Medical Service Act provides that “A person who is not a doctor engaged in the business of medical treatment and who directly conducted a medical examination shall not issue or dispatch a prescription, etc. to the patient.” Article 89 of the Medical Service Act provides that a person who violates Article 17(1) shall be punished by imprisonment for not more than one year or by a fine not exceeding five million won.

The current Medical Service Act and the Pharmaceutical Affairs Act separates the medical treatment by doctors or dentists (hereinafter “doctors, etc.”) and the preparation of medicines by pharmacists, etc., and, even if it is deemed necessary to administer the medicines to patients, doctors, etc. shall issue prescriptions to patients unless they are able to manufacture the medicines by themselves under the Pharmaceutical Affairs Act (Article 18(1) of the Medical Service Act); and a pharmacist shall not, in principle, prepare the medicines without prescriptions (Article 23(3) of the Pharmaceutical Affairs Act); and a pharmacist shall not not, in principle, prepare the medicines without any consent of doctors, etc. (Article 26 and Article 27 of the Pharmaceutical Affairs Act).

As above, treatment of a patient through the division of work or collaboration between a doctor, etc. and a pharmacist is essential on the premise that the identity of the patient who was treated by the doctor, etc. and the other party to the preparation and taking of medicines by the pharmacist is bound to be secured through the initial prescription written by the doctor, etc. Therefore, “the name and resident registration number of the patient” under Article 12(1)1 of the Enforcement Rule of the Medical Service Act among the matters stated in the prescription written by a doctor, etc. pursuant to Article 18 of the Medical Service Act shall be deemed to have an important meaning as an element specifying the subject of the treatment. Therefore, if a doctor, etc. were to directly examine a patient pursuant to Article 17(1) of the Medical Service Act refers to a third party who is not the person written in the prescription written by the doctor, etc., and a doctor, etc. prepared and issued a prescription by making a false statement on the patient’s name and resident registration number, it shall be deemed to violate Article 17(1) of the Medical Service Act.

Examining the reasoning of the judgment of the court below in light of the above legal principles, the court below is just in holding that the defendant's act of preparing and issuing a prescription in the name of non-indicted 2 and 3, who is an employee of the above council, while giving medical treatment to non-indicted 1 at the defendant's council member on June 1, 2010, is guilty, and it is not erroneous in the misapprehension of Article 17 (1) of the Medical Service Act,

2. In addition, under Article 383 subparag. 4 of the Criminal Procedure Act, an appeal on the grounds of unfair sentencing is allowed only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for more than ten years has been imposed. Thus, in this case where a more minor sentence has been imposed on the defendant, the argument that the amount of punishment is unreasonable cannot be a legitimate

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 Shin (Presiding Justice)