Plaintiff (Law Firm ELD Partners, Attorneys Ba-gu et al., Counsel for the plaintiff-appellant)

The Minister of Health and Welfare

July 11, 2018

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The disposition taken by the Defendant against the Plaintiff on January 10, 2017, such as the suspension of qualification for doctor's license, is revoked by two months.

1. Details of the disposition;

A. The Plaintiff is a doctor who operates the “○○ Mental Health Doctor” in the Cheongju-si ( Address omitted).

B. On January 10, 2017, the Defendant rendered a disposition of suspending qualification for two months pursuant to Article 4 of the Medical Service Act, on the ground that “the Plaintiff, from February 14, 2013 to February 21, 2013, issued a medical prescription to Nonparty 3, etc., the assistant nurse during his/her absence, and thereafter, requested a person other than a medical person to perform medical practice, such as entering the details of his/her outward address, etc. in the medical records and claiming medical fees, etc. that he/she did not actually performed as medical care costs, and prepares false medical records, etc.” (hereinafter “instant disposition”).

C. On January 23, 2017, the Plaintiff appealed to the Central Administrative Appeals Commission, but was dismissed on January 26, 2018.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 and 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff issued a prescription after hearing the condition of the patient by telephone, and there is no fact that the assistant nurse issued an out-of-the-counter prescription. Thus, the Plaintiff cannot be deemed to exist the grounds for the instant disposition.

2) Even if the grounds for the instant disposition exist, in light of the following: (a) there are circumstances to consider the motive of the Plaintiff’s act of violation; (b) the content of the act of violation is minor; (c) the Plaintiff was imposed a penalty surcharge in lieu of 60 days of business suspension from the government-owned market in lieu of the penalty surcharge; and (d) the instant disposition can be deemed double punishment; and (b) the Plaintiff continued to engage in voluntary activities for

B. Relevant statutes

It is as shown in the attached Form.

C. Whether the grounds for this measure exist

1) The fact that a criminal judgment already became final and conclusive on the same factual basis is significant evidence. Thus, barring any special circumstance where it is deemed difficult to employ a factual judgment in the above criminal trial in light of other evidence submitted in the administrative trial (see Supreme Court Decision 98Du10424, Nov. 26, 199, etc.). In addition, in a case where an administrative agency received a written confirmation from the other party to the investigation to the person who is responsible for a specific violation in the course of conducting a on-site investigation, barring any special circumstance such as where the written confirmation was forced against the will of the originator, or where it is difficult to use it as evidence to prove the specific fact due to lack of the content, the evidence of the written confirmation cannot be readily denied (see Supreme Court Decision 2001Du2560, Dec. 6, 2002, etc.).

2) If evidence Nos. 3-1, 2, 2, and 3 are added to the purport of the entire pleadings, the Plaintiff was sentenced to a suspended sentence on charges of violation of the Medical Service Act, and the said judgment became final and conclusive on December 10, 2016, the Plaintiff: (a) on December 2, 2016, the Cheongju District Court (2016DaMa870) issued a medical prescription to Nonparty 1, an assistant nurse, who was an employee of Nonparty 2, 7, and 8, claiming for medical treatment at the time of his/her entrustment; and (b) on October 17, 2014, the Plaintiff unfairly ordered Nonparty 1 to issue a prescription to Nonparty 2, 7, and 8, who was an employee of Nonparty 4, claiming for medical treatment at the time of his/her request for medical treatment; and (c) the Plaintiff unfairly ordered Nonparty 1, who was an employee of Nonparty 4, claiming for medical treatment at the time of his/her entrustment, etc., to receive an ex post facto prescription of the prescription.

3) As above, in the relevant criminal case, the Plaintiff was found guilty on the same factual basis as the instant disposition, and the judgment became final and conclusive on the basis of the evidence submitted by the Plaintiff, it is difficult to deem that there was a special circumstance that it is difficult to employ a factual judgment in the said criminal case, and there was no special circumstance that the Plaintiff prepared a confirmation document recognizing the grounds for the instant disposition, and that the said confirmation document was forced against the Plaintiff’s will against the Plaintiff, or that it is difficult to use it as evidence to prove the specific facts due to lack of its content. Accordingly, the Plaintiff’s assertion

(d) Whether the discretion is deviates or abused;

1) Whether a punitive administrative disposition deviates from or abused the scope of discretion under the social norms shall be determined by comparing and balancing the degree of infringement on public interest and the disadvantages suffered by an individual due to the act of violation, the public interest achieved by the act of violation, and all the relevant circumstances. In this case, even if the criteria for a punitive administrative disposition are prescribed in the form of Ordinances of Ministries, it is nothing more than that prescribed within the administrative agency's internal business affairs rules, and thus, it is not effective externally to guarantee citizens or courts. Whether such disposition is legitimate shall be determined in accordance with the provisions and purport of the relevant Acts and subordinate statutes, not only the above criteria for disposition but also with the above criteria for disposition. Thus, it cannot be immediately deemed legitimate because the above criteria for disposition meet the above criteria for disposition. However, unless the above criteria for disposition do not conform with the Constitution or laws, or if there are reasonable grounds to believe that an administrative disposition in accordance with the above criteria for disposition is considerably unfair in light of the contents and purport of the relevant Acts and subordinate statutes and regulations, it shall not be determined that such disposition has deviates from the scope of discretion or abused discretion (see, etc.).

2) Comprehensively taking account of the following circumstances acknowledged in addition to the above recognized facts and the purport of the entire arguments, the instant disposition cannot be deemed unlawful as it deviates from and abused discretion, even considering the circumstances alleged by the Plaintiff. Accordingly, the Plaintiff’s above assertion is not acceptable.

A) Since the duties of medical personnel directly affect the lives and health of the general public, the medical law regulations governing such duties should be thoroughly observed, and the medical personnel’s awareness of compliance should also be maintained at a higher level.

B) In addition, if a non-medical person engages in medical practice, it is highly likely that the patient's life or body may be harmed, and the patient's non-medical system may be disadvantaged. Therefore, it is necessary for public interest to strictly regulate the medical practice.

C) In light of the fact that the Plaintiff received a suspended sentence in a related criminal case, the Defendant rendered the instant disposition by reducing the instant disposition within the scope of 1/3 that can be mitigated to the maximum extent pursuant to Article 4 of the Rules on Administrative Measures Relating to the Medical Services Act. Therefore, the instant disposition conforms to the foregoing disposition standards. Therefore, there is no reasonable ground to believe that the instant disposition disposition does not conform with the Constitution or laws in itself, or that the relevant disciplinary disposition is remarkably unreasonable in light of the content of the relevant offense

D) It is recognized that the Cheongju Mayor imposed a penalty surcharge in lieu of business suspension pursuant to Article 64(1)2 and Article 67 of the Medical Service Act on the ground that the Plaintiff’s medical institution “the Plaintiff had an unqualified person perform medical practice.” However, the disposition of this case is related to the medical institution operated by the Plaintiff, which is subject to the disposition of this case, and is different from the disposition of this case. The disposition of this case differs from the disposition of the disposition of this case, the disposition of this case also differs from the disposition of the disposition of this case, and the disposition of the disposition of this case is different from the disposition of the disposition of the disposition of this case, and even if a single doctor as the Plaintiff established a council member, the disposition of this case does not constitute double punishment in addition to the disposition of suspension

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment]

Judges Cho Chang-chul (Presiding Judge)