2014 High Court Order 5458 Violation of the Medical Service Act

A

Clerks (prosecutions) and dives (public trials)

Attorney C, D in charge of the law firm

May 7, 2015

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

1. Summary of the facts charged

Although a medical person or founder of a medical institution must preserve medical records, etc. (10 years), the defendant was given a loan from around February 16, 2009 to 19 patients, such as E, in the medical records room of a hospital for the happiness of a high school from around 2002, while working as a doctor at a hospital for the happiness of a high school, and did not return the same upon retirement on January 19, 2010, and did not keep the above E, etc. 19 medical records.

2. Determination

The principle of no punishment without the law requires that a crime and punishment be prescribed by law in order to protect individual freedom and rights from the arbitrary exercise of the State’s penal authority, and in light of such purport, the interpretation of the penal law should be strict. It is not permitted to excessively expand or analogically interpret the meaning of the explicit penal law in the direction unfavorable to the defendant as it is against the principle of no punishment without the law (see, e.g., Supreme Court Decisions 2015Do354, Feb. 26, 2015; 2013Do4503, Sept. 24, 2014; 2012Do4230, Nov. 28, 2013).

In addition, Articles 90 and 22(2) of the Medical Service Act stipulate the duty of preparing and preserving medical records, etc., the purpose of Article 22 of the Medical Service Act is to allow a doctor in charge of medical treatment to voluntarily record and preserve the information on the patient’s condition and the progress of medical treatment and to use it for the treatment of the patient continuing, and to provide other persons engaged in medical treatment with such information with appropriate medical treatment, and allow them to use it as data to determine the propriety of the medical act after the completion of the medical act.

In light of the above principle of no crime without the law, the legislative intent of the above provision, and the legal interest protected by the law, etc., it does not include a patient’s intent to provide a loan for the purpose of research of the medical records of the patient stored in a university hospital, not a doctor who actually provided medical treatment for the patient. Therefore, it is reasonable to interpret that the defendant is not a person who is obligated to keep the medical records under Article 22(2) of the Medical Service Act, but a school foundation is directly subject to the above provision as a founder of a medical institution. Thus, the defendant violates the duty to return under the private law stipulated in the loan agreement entered into with the founder of a medical institution who is obligated to keep the medical records under Article 22(2) of the Medical Service Act. On the other hand, deeming that the defendant’s occupation is the same as the patient’s doctor or the founder of a medical institution who is in charge of keeping the medical records under the above Act on the ground that the defendant’s occupation

3. Conclusion

Thus, since the facts charged in this case are not a crime or there is no proof of a crime, the defendant shall be acquitted under the former or latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment against the defendant shall be publicly announced under Article 58(2)

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

Judges Kim Gin-jin