[1] In a case where a person engaged in a business without a license for profit-making purposes fails to receive some money, whether the person constitutes a violation of the Medical Service Act separately in addition to “violation of the Act on Special Measures for the Control of Public Health Crimes (negative)

[2] The case holding that the judgment of the court below which recognized the crime of violation of the Act on Special Measures for the Control of Public Health Crimes as a crime of violation of the Medical Service Act on the ground that the former constitutes a crime of violation of the Act on Special Measures for the Control of Public Health Crimes, and that the latter constitutes a crime of violation of the Act on Special Measures, and that there was an error in the misapprehension of legal principles as to the number of crimes of unauthorized Medical Practice in the case

[1] Since non-licensed medical practice is expected to repeat the same kind of crime due to the nature of the elements of the crime, it is reasonable to view that the evaluation of the act is already included in the assessment of the constituent elements of the crime of violation of the Act on Special Measures for the Control of Public Health Crimes if a non-licensed medical practice without any money is conducted without any money. If it is deemed that a violation of the Medical Service Act is established separately from the non-licensed medical practice without money, in addition to the violation of the Act on Special Measures for the Control of Public Health Crimes, if a non-licensed medical practice without money is conducted with no money, it shall be punished within the statutory punishment as one crime of violation of the Act on Special Measures for the Control of Public Health Crimes. On the other hand, if a non-licensed medical practice without money is conducted without money, it shall be deemed that the crime of violation of the Act on Special Measures for the Control of Public Health Crimes and the crime of violation of the Medical Service Act are concurrent crimes, which are more severe.

[2] The case holding that the judgment of the court below which recognized the crime of violation of the Act on Special Measures for the Control of Public Health Crimes and the latter as a crime of violation of the Medical Service Act on the grounds that the former constitutes a crime of violation of the Act on Special Measures for the Control of Public Health Crimes by separating the acts of receiving money from a series of unauthorized Medical Practice conducted with the same criminal intent in the same manner at the same place, and that there

[1] Article 37 of the Criminal Act; Article 5 of the Act on Special Measures for the Control of Public Health Crimes; Articles 27(1) and 87(1)2 of the former Medical Service Act (amended by Act No. 9386 of Jan. 30, 2009) / [2] Article 37 of the Criminal Act; Article 5 of the Act on Special Measures for the Control of Public Health Crimes; Articles 27(1) and 87(1)2 of the former Medical Service Act (amended by Act No. 9386 of Jan. 30, 209)

Defendant 1 and three others

Defendant and Prosecutor

Attorney Analary Correction

Seoul Eastern District Court Decision 2009No1230 decided January 22, 2010

The part of the judgment of the court below against Defendant 1 and 2 is reversed, and that part of the case is remanded to the Panel Division of the Seoul Eastern District Court. The prosecutor's appeal is dismissed in entirety.

The grounds of appeal are examined.

1. Defendant 1 and 2’s appeal

A. The term "medical practice" means the act of preventing or treating diseases caused by the diagnosis, autopsy, prescription, medication, or surgical surgery with medical expertise based on experience and function, and other acts that may cause harm to public health and sanitation if performed by medical personnel (see Supreme Court Decision 2004Do3405, Oct. 28, 2004, etc.).

In light of the following circumstances, i.e., Defendant 1’s “○○ Cancer Research Institute” on the first instance court’s lawfully adopted evidence, the lower court determined that Defendant 1 was an act of research and treatment of cancer to patients suffering from cancer, and that K-6, which was made on the basis of beer’s name, was an act of treatment of patients, i.e., “unexplosion”, and that it would have been an act of treatment of patients, and that it would have been an act of treatment of patients, and that it would have been an act of treatment of patients, such as those of patients who were under the control of the first instance court’s office, and that it would have been an act of treatment of patients, and that it would have been an act of treatment of patients, such as the act of treatment of patients, and that it would have been an act of treatment of patients, and that it would have been an act of treatment of patients, such as the act of treatment of patients and the act of treatment of patients, and that it would have been an act of treatment of patients by using the first instance.

B. Article 27(1) of the former Medical Service Act (amended by Act No. 9386 of Jan. 30, 2009) prohibits a person without a license, who is not a medical person, and is not a medical person, shall not perform any medical act other than a licensed one, and shall be punished under Article 87(1)2 of the same Act. In addition, Article 5 of the Act on Special Measures for the Control of Public Health Crimes provides that “a person who engages in a non-licensed medical act for profit-making purposes in violation of Article 27 of the Medical Service Act” shall be punished under Article 27(1) of the same Act. Since repeated medical act is anticipated to constitute one crime due to the nature of the elements of the crime, it is reasonable to view that the illegality of a medical act is included in the assessment of the elements of a non-licensed medical act without money for a non-exclusive purpose, and that if a non-licensed person violates the Medical Service Act with no money for a violation of the Act on Special Measures for the Control of Public Health Crimes, there is no money to be deemed to be a violation of the Medical Service Act separately established.

According to the reasoning of the judgment below, the court below determined that the crime of violation of the Act on Special Measures for the Control of Public Health Crimes and the crime of violation of the Medical Service Act, which the court below recognized as a substantive concurrent crime, are a series of unauthorized medical acts with the same criminal intent at the same place. Nevertheless, the court below classified the act of receiving money and the act of not receiving money from a series of unauthorized medical acts, and classified the former into the crime of violation of the Act on Special Measures for the Control of Public Health Crimes, the latter constitutes the crime of violation of the Medical Service Act, and the latter constitutes the crime of violation of the Medical Service Act, and determined the punishment by aggravated punishment. Thus, the court below erred

2. Prosecutor's appeal

The court below held that the facts charged against the defendant 3 and 4 constitute a case where there is no proof of facts constituting a crime for the reasons stated in its reasoning. The judgment of the court below is acceptable in light of the records as it is based on the reasonable free evaluation of the judge of the fact-finding court, and there is no

3. Conclusion

Therefore, the part of the judgment of the court below against Defendant 1 and 2 is reversed, and that part of the case is remanded to the court below for a new trial and determination. The prosecutor's appeal is dismissed in entirety. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)