Defendant 1 and one other

Both parties

He/she shall hold a public trial on his/her own, such as prosecution and her own stay.

Law Firm continental Asia et al.

Seoul Central District Court Decision 2013Ma1076 Decided November 25, 2013

All appeals by the Defendants and the Prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendants

(1) misunderstanding of facts or misapprehension of legal principles, violation of the rules of evidence

(A) Defendant 1

In light of the purport of the Narcotics Act to prevent the misuse and abuse of narcotics, etc., “medical purpose” should be strictly interpreted, and any purpose or intent shall not be accompanied thereby. Thus, if “non-medical purpose” is accompanied even by gold, it constitutes an element of punishment. In addition, it shall be subject to punishment as well as continuous medication for patients with toxicity or dependence, and any additional medication is likely to cause addiction and psychological dependence, and even in a case where the additional medication is a medication to a degree that it may cause addiction and psychological dependence, the lower court found the Defendant guilty of all of the facts charged in the instant case on the premise that the Defendant committed a crime under the premise that the crime was established even in a case where the additional medication is a medication to a degree that it may cause addiction and psychological dependence.

However, strictly interpreting the scope of "medical purpose" that is allowed to handle narcotics under the Narcotics Act despite the legitimacy of the purpose of "regulation on abuse of narcotics" leads to the expansion and interpretation of the elements (non-medical purpose) so it goes against the basic principle of the principle of no punishment without law that the elements of a crime should be strictly interpreted. It is unfair in that the concept of "existence" itself and its judgment criteria may lead to arbitrary expansion interpretation by judicial authorities in a situation where there is no legally clear definition, and further, the crime at issue does not lead to the existence of awareness of the objective element, which is a crime requiring "non-medical purpose," and thus, it cannot be presumed that the existence of purpose exists only by the existence of awareness of the objective element, which is the crime requiring "non-medical purpose," and thus, there is no room to acknowledge "non-medical purpose" solely on the basis of "non-medical purpose," which cannot have the meaning above the negligence under the Criminal Act. Nevertheless, the court below erred in the misapprehension of the legal principles as to "non-medical purpose" in this case where co-defendant 3 or non-indicted 1, etc. were dependent at the time of this case.

(B) Defendant 2

(1) Failure to prove the public offering.

In order to establish a public contest relationship between the defendant and co-defendant 4 of the court below and co-defendant 5 of the court below, the defendant, who is a doctor, and the other party to the medication, should have an intention to use propool for purposes other than business and obtain the effect of resolving conflicts arising from dependence. In this case, evidence that can be recognized as a public contest is one of co-defendant 4 of the court below's prosecutor's office's office and co-defendant 5 of the court below's office's office's office's non-indicted 4 and co-defendant 5 of the court below's office's office's office's non-indicted 4 and co-defendant 6 of the court below's office's non-indicted 7's statement or non-indicted 4's non-indicted 5's statement or non-indicted 5's non-indicted 4's statement or non-indicted 5's statement or non-indicted 5's non-indicted 9's non-indicted 5's statement or non-indicted 6's statement.

(2) Absence of motive for crime

In light of the fact that the Defendant’s profits from mms surgery are very low in the total sales, in particular, Co-Defendant 4 of the lower court committed a free-of-charge operation with Co-Defendant 5, Non-Party 6, and Non-Party 7, the lower court did not receive any separate expenses for malination from Co-Defendant 5, Non-Party 6, and Non-Party 7, it cannot be deemed that the Defendant

③ Non-existence of “non-medical purpose”

In light of the fact that the medical necessity for chronic pain treatment is growing day, and the right to choose an appropriate method of medical examination and treatment should be guaranteed, and in light of the necessity and adequacy of cardiompine anesthesia procedures, there should be a minimum medical standard if it is possible to determine “non-medical purpose” in the light of the necessity and adequacy of cardiompine anesthesia, but there should be no sufficient proof to prove that the amount of medication is excessive or inevitably dependent, and the defendant did not know that Co-Defendant 4 and Co-Defendant 5 of the court below did not recognize the fact that he had been anesthesia in the ▽▽△△○ clinic, and that there was no problem when considering only his medical treatment, it did not consider all the circumstances that determined that only the period and frequency was “non-medical purpose” is an act of “non-medical purpose” in determining “non-medical purpose” by mistakeing facts and misapprehending the legal principles as to “non-medical purpose” in applying objective criteria for determining “non-medical purpose”.

(4) Non-existence of a particularly reliable state concerning statements made by the public prosecutor

The defendant, who denied his protocol for illegal medication in the prosecutor's office, made a statement to the effect that he recognized it later, reversed it later, and maintained the attitude of denying it in the court below. The same applies to co-defendant 4 and co-defendant 5 of the court below. The same applies to co-defendant 5 of the court below, and even ten witnesses related to the defendant who appeared in the court of the court below, reversed the prosecutor's statement in the prosecutor's office without exception, and made the prosecutor's investigation without sufficient understanding of dependence and other concepts, or made a statement different from his statement. In light of the content of each witness's testimony, it is obvious that each protocol cannot be deemed as a document prepared under particularly reliable circumstances as evidence of guilt. However, in light of the content of each witness's testimony, the court below erred by misapprehending the purport of the Criminal Procedure Act and the legal principles, thereby violating the rules of evidence evidence.

(2) Unreasonable sentencing

The punishment sentenced by the court below (Defendant 1: Imprisonment with prison labor for a year and six months, imprisonment for a year and six months, and fine for a fine of three million won, each of the defendants' suspended execution for a period of two years, community service hours and additional collection for a period of 80 hours) is too unreasonable.

(b) Prosecutors;

The sentence imposed by the court below against the defendants is too uneasible and unfair.

2. Criteria to determine whether propool medication is "for purposes other than business purposes"

A. The meaning of "business" for a narcotics handler who is a doctor

As properly explained by the court below, the Act on the Control of Narcotics, Etc. (hereinafter referred to as the "Narcotic Act") prohibits in principle the handling or use of "narcotics, etc." including the propool designated as a propool (Article 3 of the Narcotics Act), and only in the case of "person handling narcotics, etc. permitted or designated under the Acts and subordinate statutes" (Article 3 of the Narcotics Act), prohibits a person other than a person handling narcotics, from handling narcotics, and at the same time, strictly prohibits a person handling narcotics, etc. for any purpose other than his/her business (Articles 4 and 5 of the Narcotics Act), and also strictly prohibits a person handling narcotics, etc. from handling narcotics, etc. for any purpose other than his/her business, and even in the case of a person handling narcotics, only the person handling narcotics, etc. may handle or use a propool for any purpose other than his/her business (Article 4 and 5 of the Narcotics Act). Accordingly, if a person handling narcotics, who is a doctor at a hospital, handles narcotics, is prohibited from handling or using a propool for any purpose other purpose.

B. Criteria to determine whether a propool medication accompanied by a doctor’s treatment is illegal as a “out-of-business purpose” medication

As properly explained by the court below, even if the medication is conducted concurrently with the treatment purpose, such as cosmetic surgery and pain surgery within a hospital, the administration is not conducted for the purpose of medical treatment, such as disease prevention or treatment, but also included in the medication for the purpose of "non-medical treatment". 1 The concept of "medical purpose" should be strictly interpreted in determining whether a person handling narcotics, etc. can exceptionally handle narcotics only for the purpose of medical treatment, and thus, it should not be applied to the determination of whether a patient's level of dependence on the purpose of medical treatment depends on the patient's specific usage of medication for the purpose other than the purpose of medical treatment. 3) It is also necessary to determine whether a person who administers narcotics, etc. can administer propool for the purpose of medical treatment without any specific intent or purpose.

(7) On the premise of this point, the court below shall consider whether there is any inevitable reason to continue and repeatedly administer the relevant medication, (5) whether there is a need to rely on the medication, (3) whether there is any possibility that additional medication might depend on the other party's mental side effects during the relevant medication, (4) whether there is any other relevant medication in light of the total period of time, frequency, quantity of times, distance of procedure, procedure, and substance of the medication, (5) whether there is a possibility that additional medication might depend on the other party's side effects, (4) whether the additional medication has already been administered, (5) whether there is any inevitable reason to ensure that the relevant medication has been conducted, (3) whether there is any possibility that additional medication might depend on the other party's side effects during the relevant medication, (4) whether the additional medication has been made, (5) whether there is any possibility that additional medication has been made, (4) whether there is any possibility that additional medication has been administered, or not there are other relevant factors.

On the other hand, “the act of administering propool for any purpose other than business” is not a so-called “purpose crime” which requires separate purposes other than intentional intent as an excessive subjective illegal element for the establishment of a crime under the interpretation of the relevant provision of the law. Thus, in the establishment of a crime, it is sufficient only to recognize the intention of an objective constituent element (including dolusent intention), namely, the act of administering propool for any purpose other than business, and to

3. Establishment of accomplices in conduct of medication for purposes other than business affairs;

In order to establish a co-principal relationship under Article 30 of the Criminal Act, a co-principal relationship must be established in addition to the act of committing a crime through functional control, with the intent of co-processing to move his own intent by using one another's act in order to implement a specific criminal act as a co-principal. In this case, in dolusent recognition of the fact that a doctor is to administer a propool with the other party's dependence or addiction symptoms or to the degree of a risk of dependence on the other party, and the other party to the medication administers a propool without recognizing it as dolusora, and the other party to the medication has already been aware of the fact that he is an abuse of propool dependence or at least a propool dependence on the part of the other party, and it is recognized that he was administered as described in the facts charged first in the manner of demanding anesthesia, the Defendants and the other party to the medication, as well as the purpose of the non-medical purpose medication, and thus, constitute a co-principal under Article 30 of the Criminal Act.

4. Whether there is a particularly reliable state as to the statements made by Defendant 2, Co-defendant 4 of the lower court, Co-defendant 5 of the lower court, and Co-defendant 5

A. In the case of Defendant 2, Co-defendant 4 of the court below, Co-defendant 5 of the court below

As the court below properly explained on this, Defendant 2, Co-defendant 4 of the court below, Co-defendant 5 of the court below's judgment, each of the statements made by Co-defendant 4 of the court below and Co-defendant 5 of the court below, the reasons why they made a statement to the effect that they made a confession, their statements are sufficiently supported as data on the period and frequency of propool medication and total frequency of Co-defendant 4 of the court below and Co-defendant 5 of the court below, and their mutual statements are consistent and are consistent with the statements made by Non-Indicted 8, 9, and 10 of the court below's witness, the prosecutor's statements made by Defendant 2 of the court below and Co-defendant

B. In the case of Nonindicted 7 and Nonindicted 6

Non-Indicted 7 and Non-Indicted 6 made a statement to the effect that they are dependent on their own propool in the prosecution, but they denied that there was propool dependence in the original trial. However, in light of the record, Non-Indicted 6’s propool medication period, frequency, frequency, interval, details of the procedure, Non-Indicted 7 and Non-Indicted 6’s criminal suspicion that he was administered with the Defendant 2 and received Immms from the court, and it became final without requesting a formal trial. Non-Indicted 11, a doctor who employs △△△△△△△△△△, made a statement to the effect that he was found to have a propool dependence on the part of Non-Indicted 6’s medical record + Non-Indicted 6’s medical record “PH” + their credibility in their statements.

C. In the case of Nonindicted 8

Non-Indicted 8's statement at the prosecutor's office appears to be sufficiently reliable in light of the following: (a) Non-Indicted 8's statement at the prosecutor's office is deemed to have the intention to obtain propool and diving; and (b) Non-Indicted 5's prosecutor's statement at the prosecutor's office was naturally included in propool when conducting Ims procedures; and (c) Non-Indicted 8's statement at the court of the court below was found to have been found to have been propool to find out that he was propools propos in co-defendant 5 at the court of the court below; and (d) Non-Indicted 8's statement at the court of the court below was distorted and changed to the contents of the statement because the above statement was distorted, but there was no interest in Non-Indicted 8's statement at the court of the court below; and (e) the period, frequency, and frequency of the propool administered during which Non-Indicted 5 was administered.

D. Sub-determination

Therefore, Defendant 2’s assertion that Defendant 2, Co-Defendant 4 of the lower court, Co-Defendant 5 of the lower court, and Co-Defendant 5 of the lower court did not have any particularly reliable state.

5. Whether Defendant 1’s “non-medical purposes” propool medication

A. As to Co-defendant 3 of the court below

According to the evidence duly adopted and examined by the court below, Co-Defendant 3's total propool medication period, frequency, frequency, and propool medication together with the reasoning of the court below, and circumstances such as the reasoning of the court below, the court below found that Co-Defendant 3 was guilty and sentenced to two-year suspended sentence in August of the court below as to Co-Defendant 3, who illegally received propool medication treatment from Defendant 1, and the court below's decision became final by withdrawing appeal after Co-Defendant 3 appealed, it was recognized that Co-Defendant 3 had already been or was more dependent on propool administration to Co-Defendant 3 at least at least at the time of designation of propool, or that Co-Defendant 3 had no possibility of dependence on propool medication treatment than the court below's decision that Co-Defendant 3 had already known that there was a possibility of dependence on the propool medication treatment, or that there was no possibility of dependence on the propool medication treatment more than the court below's decision that it constitutes a crime other than Defendant 1.

B. Regarding Nonindicted 1, 2, 3, 4, and 5

원심이 적법하게 채택하여 조사한 증거들에 의하여 인정되는 공소외 1, 공소외 2, 공소외 3, 공소외 4, 공소외 5의 프로포폴 총 투약 기간, 횟수, 빈도, 프로포폴 투약과 함께 시행되는 시술 내용, 프로포폴 투약 비용 송금 내역 등 원심 설시와 같은 사실 및 위 사실들에 의하여 알 수 있는 원심 설시의 사정들에다가, ① 검찰에서 피고인 1 스스로 공소외 1, 공소외 2, 공소외 3, 공소외 4, 공소외 5가 프로포폴 중독으로 판단되어 시술 및 투약횟수를 줄여나가다가 병원에 출입하는 것을 금지시켰고, 공소외 1 등이 프로포폴에 대한 저항력이 강하여 많은 양의 프로포폴을 사용하여 시술하였으며, 시술 후 이들의 요구로 몇 차례 더 투여한 사실도 있었는데 이는 잘못된 것이라고 진술하기도 하였고(제1회 검찰 피의자신문조서), 공소외 1 등에 대하여 프로포폴 향정약품 지정 초기에도 몇 번 투약하다가 중단하였는데 투약의 정도나 횟수가 늘면서 차츰 중독을 의심하였고, 시술 주기를 1주내로 짧게 잡고 시술 후 집에 가지 않고 프로포폴을 요구하면 중독이라고 판단할 수 있는데 공소외 1 등에게는 짧은 기간 내에 많은 횟수가 투약되었다고 인정하기도 하였으며(제4회 검찰 피의자신문조서), 부인과 시술 외에는 환자의 요구로 프로포폴을 투약하였다고 진술한 점, ② 국내에서는 2010. 8. 중앙약사심의위원회에서 프로포폴을 향정약품으로 지정하여 관리하기로 의결하여 마약류 지정을 추진하였고, 결국 2011. 2. 1. 프로포폴이 향정약품으로 지정되었는바, 공소외 1 등이 ○○○의원에서 프로포폴 투약을 한 기간에 비추어 볼 때 피고인 1이 위 지정 이전부터 이들의 중독성에 대해 인식하고 있었으리라고 보이는 점, ③ 의사인 공소외 13은 공소외 1 등이 받은 시술에 대해 원칙적으로 수면마취가 필요 없고 시술 부위에 리도카인 연고를 발라 국소마취를 하면 충분하다고 진술하고 있는 점, ④ 공소외 14도 검찰에서 2011. 3. 7.부터 피고인 1 운영의 ○○○의원에서 근무하였는데 처음에 중독자들이 몇 명 와서 투약해 줬고, 피고인 1이 중독자임을 알아채고 투약해 주지 않자 오지 않았으며, 공소외 1은 프로포폴 투여가 필요 없는 시술을 받고 아프다며 투약을 요구하였고, 공소외 3은 피고인 1이 투약을 거부하고 투약 횟수를 줄였으며, 본인도 투약하지 않기로 다짐하기도 하였고, 피고인 1이 투약을 결정한 일은 거의 없고 환자들이 요구할 때만 투약하였다고 진술한 점, ⑤ 공소외 1의 경우 검찰에서 스스로 프로포폴을 계속 투약하고 싶었다고 진술하였고, 피고인 1도 공소외 1에 대해서 자주 프로포폴을 원했고 시술 후 추가 시술하겠다며 투약을 요구하였다고 진술하였으며, 공소외 1이 2011. 10. 4. 프로포폴을 훔쳐 투약한 혐의로 인천지방법원에서 유죄판결을 받아 위 판결이 확정되기도 한 점, ⑥ 공소외 2의 경우 프로포폴이 향정약품으로 지정된 2011. 2. 1. 이전인 2010. 1. 경부터 피고인 1로부터 시술과 병행하여 프로로폴을 투약 받아 왔고, 공소외 15는 원심 법정에서 중독 증상 때문에 공소외 2를 내원 금지시켰는데 2011. 5. 14.과 2011. 5. 16. 무조건 돈을 입금한 후 병원을 방문하여 환불해주었다고 진술하고 있는 점, ⑦ 공소외 3의 경우 공소외 3이 검찰에서 2012. 6.부터 피고인 1이 투약을 거부하여 3~4회 더 간 후 중단하였고 시술 후 요구(통증호소)하면 관리사가 5회까지 투약해 준 일도 있었다고 진술하였고, 피고인 1은 공소외 3에 대해 유흥업소종사자로서 내원하는 횟수 등을 보면서 중독을 의심하고 투약 횟수를 제한하다가 결국 내원을 금지시켰는데, 공소외 3의 진료기록부상 투약한 프로포폴의 양은 과다하며, 공소외 3이 피고인 1로부터 시술 및 투약을 받기 전에 여러 피부과를 다닌 사실 알고 있었다고 진술한 점, ⑧ 공소외 4는 프로포폴이 향정약품으로 지정되기 이전부터 프로포폴 투약을 위해 7,000만 원가량을 지출하였고, 검찰 피의자신문 당시 ○○○의원에서 자신이 중독자인 것을 알고 있었으며 프로포폴 투약을 위해 필요 없는 시술을 해주고 있었다는 취지로 진술하였고, 피고인 1도 공소외 4가 중독된 것을 알고 병원에 오지 못하게 하였다고 진술한 점, ⑨ 공소외 1은 검찰에서 공소외 5에 관하여 자신은 공소외 5의 소개로 ○○○ 의원 등을 다니기 시작하였는데, 공소외 5가 잠을 못 잤고 프로포폴을 많이 투약받았으며, 하루 걸러 또는 매일 프로포폴을 투약하러 갈때도 있었고, 때로 혼자 몰래가기도 하였다고 진술하였고, 피고인 1과 공소외 15도 공소외 5가 중독증상을 보여 내원을 금지하였다고 진술하고 있는 점, ⑩ 프로포폴에 대한 의존성 내지 의존성 발생 가능성에 대한 판단은 내심의 의사 등 주관적인 요소 뿐만 아니라 투약기간, 횟수, 빈도, 투약량, 비용 지출 규모 등 객관직인 지표를 통해서도 판단할 수 있는 점 등을 보태어 보면, 공소외 1, 공소외 2, 공소외 3, 공소외 4, 공소외 5는 프로포폴의 향정약품 지정 무렵 이미 프로포폴 의존성이 있었고, 적어도 공소외 1 등에게 더 이상의 프로포폴 투여 시술은 의존성 발생 가능성이 있다고 인정되며, 공소외 1 등이 이미 의존성이 있다는 사실을 알고 있거나 공소외 1 등에게 더 이상의 프로포폴 투여 시술은 적어도 의존성 발생 가능성이 있다는 점을 미필적으로라도 인식하고 있었다고 보이는 피고인 1이 공소외 1 등의 요구를 그대로 수용하여 미용시술을 하면서 원심 판시 범죄사실 별지 범죄일람표 (3) 기재와 같이 프로포폴을 투약한 것은 결국 ‘의료 외의 목적’에 의한 투약에 해당한다고 할 것이다.

C. Sub-decision

Therefore, Defendant 1’s assertion of mistake or misapprehension of legal principles is without merit.

6. Whether Defendant 2’s “non-medical purposes” propool medication and accomplices are established

Even if Co-Defendant 4 and Co-Defendant 5 had no record of malkic malkic malkic malkic malkic malkic malkic malkic malkic malkic malkic malkic malkic malkic malkic malkic malkic malkic malkic malkic malkic malkic malkic malkic malkic malkic malkic malkic malkic malkic malkic malkic malkic malkic malkic malkic malkic malkic malkic malkic malkic.

Therefore, Defendant 2’s assertion of mistake or misapprehension of legal principles is without merit.

7. Determination on the assertion of unfair sentencing by Defendants and prosecutors

As doctors dealing with the life and health of human beings, the Defendants already know about harm caused by abuse of propool, but to administer propool by undermining their customers who are likely to depend on or dependent on their own health can cause serious harm to their health. In addition, in the process, the Defendants illegally manipulate or destroy medical records and management books of propool to be strictly recorded and managed for patients' health, etc. In light of the fact that the nature of the crime is very poor, Defendant 1 did not have any significant consequence of the death of the Defendants by negligence in the process of taking advantage of his own interests, Defendant 2 did not want to have any advantage of the provision of a punishment of imprisonment with prison labor for the same kind or more than that of the lower court, and it is not easy for the Defendants to have been subject to the suspension of the execution of cosmetic treatment because it did not want to have any advantage of the provision of a punishment on propool treatment because it is somewhat less likely that propool is subject to punishment than other narcotics.

8. Conclusion

Therefore, the appeal by the defendants and the prosecutor is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act, since all of the appeals by the defendants are without merit.

Judges final (Presiding Judge) Kim Jong-sung