Defendant

Defendant

Kim Jong-chul (prosecution), leaptable (Public trial)

Law Firm Seo-ok et al., Counsel for the defendant-appellant

Gwangju District Court Decision 2013Gohap117 Decided March 5, 2014

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. Meritorious of legal principles

1) False medical advertisement part

A) According to the Constitutional Court Decision 2003Hun-Ga3 Decided October 27, 2005, the amendment process thereto, and the language and text of the current Medical Service Act, “the provision on the punishment of false and exaggerated advertisements with respect to career” was deleted. Furthermore, medical advertisement with false and exaggerated contents under Article 56(3) of the Medical Service Act shall be related to medical practice in light of the Constitutional Court Order 201Hun-Ma651 Decided December 26, 2013, and “medical practice” refers to the act of preventing or treating diseases caused by diagnosis, examination, prescription, medication, or external surgery with medical expertise and the act that may cause harm to public health and sanitation if performed by medical personnel (see Supreme Court Decision 2010Do5964, May 10, 2012). As such, medical advertisement with false and exaggerated contents are not related to medical practice records (see Supreme Court Decision 2010Do5964, May 10, 2012).

B) Even if the Defendant’s career records relate to medical treatment, it does not constitute advertising to keep a medical record on one side of the inner wall of the hospital.

2) Non-signing part of medical records

In Article 2 (1) of the Medical Service Act, the term "medical person" in this Act means a medical doctor, dentist, oriental medical doctor, midwife, or nurse licensed by the Minister of Health and Welfare. Thus, since the defendant cannot be deemed to have a duty to directly state medical records, the defendant's statement is not in violation of the law, and it is too harsh to punish only a person who did not write his/her name in the medical records.

3) The point of the non-examination of medical service advertisements

The contents of the interview done by the defendant are not medical advertisements.

B. The point of unfair sentencing

The punishment of the lower court (a fine of three million won) is too unreasonable.

2. Addition of ancillary facts charged

(1) With respect to Article 89 and Article 56 (2) 5 of the Medical Service Act in the facts charged, the prosecutor shall not put a medical advertisement which is expressed in the form of an article or expert opinion using a newspaper, broadcasting, magazine, etc. in the facts charged.

Nevertheless, on the same day on December 28, 2010, the Defendant applied for the amendment of the indictment to add the phrase “(s)” to a medical advertisement expressed in the form of an article using the newspaper, as the title “○○○○○○ and a person who has been in actual study in the U.S.” at the newspaper of the Hague Economic Telecommunications Korea on the same day, and this Court permitted it.

3. Determination

A. Judgment on the misapprehension of legal principles

1) False medical advertisement part

A) Relevant statutes

(1) Article 46 of the Medical Service Act (amended by Act No. 6686 of March 30, 2002)

(1) No medical corporation, medical institution, or medical person shall make a false or exaggerated advertisement concerning the business of medical treatment.

(3) No person shall advertise by means of mass advertisement, crymmetric description, photograph, printed material, broadcast, design, etc. with respect to the functions, methods of medical treatment, midwifery method, career, efficacy, etc. of a specific medical institution or specific medical person.

(2) Article 46 of the Medical Service Act amended by Act No. 8203 on January 3, 2007

(3) No medical corporation, medical institution, or medical person shall run a medical advertisement with a false or exaggerated content.

(3) Article 56 of the current Medical Service Act

(3) No medical corporation, medical institution, or medical person shall run any medical advertisement with a false or exaggerated content.

(5) Necessary matters concerning medical advertisements, such as detailed standards of medical advertisements prohibited pursuant to paragraph (1) or (2), shall be prescribed by Presidential Decree.

(4) Article 23 (Standards for Prohibition of Medical Service Advertisement)

(1) The detailed criteria for medical advertisements prohibited pursuant to Article 56 (5) of the Act shall be as follows:

2. To express that the medical skills or methods of a specific medical institution or specific medical person have an essential effect on medical treatment of a disease, or to advertise "the experience in medical treatment of a patient or his/her clinical career for not more than

5. The advertisement that causes the general public to feel aversion by inserting videos and photographs showing the scenes of operations of patients performed by a medical person, or the affected parts, etc. of patients;

B) Determination as to whether the provision on the punishment of false or exaggerated advertisements with respect to medical personnel’s career was deleted under the current Medical Service Act

Article 46(1) of the Medical Service Act (amended by Act No. 8203, Oct. 27, 2005; 2003; 3) provides that “The above provision on medical personnel’s career or method of medical examination and treatment is deleted by the amendment of the Medical Service Act by Act No. 8203, Jan. 3, 2007.” However, if the above provision on medical personnel’s career or method of medical examination and treatment is due to objective facts, and is notified to consumers without exaggeration of medical care or method of medical care of the relevant medical personnel, this provision is an important matter concerning medical personnel’s rational choice, thereby promoting public interest, and the provision on medical personnel’s medical personnel’s health care or method of medical treatment is not in violation of the above provision on medical personnel’s unconstitutionality Act (amended by Act No. 6686, Mar. 30, 200).

C) Determination as to whether the medical advertisement is limited to the advertisement of medical practice

The defendant's defense counsel asserts that medical advertisements with false or exaggerated contents under Article 56 (3) of the Medical Service Act are limited to medical practices in light of the Constitutional Court Order 201HunMa651 Decided December 26, 2013 and Supreme Court Decision 2009Do7455 Decided November 12, 2009 cited in the above Order.

① However, the above decision of the Constitutional Court is limited to medical advertising in accordance with Article 56(2)3 of the Medical Service Act prohibiting the advertisement of contents in comparison with other medical institutions and medical personnel’s functions or methods. The above decision of the Supreme Court is limited to medical advertising in accordance with Article 56(1) of the Medical Service Act prohibiting the advertisement of medical services by a medical corporation, medical institution, or a person other than medical personnel. The above decision of the Supreme Court is limited to the subject of medical advertising in accordance with Article 56(1) of the Medical Service Act prohibiting the advertisement of medical services by a medical corporation, medical institution, or a person other than medical personnel. ② In interpreting as alleged by the defendant’s defense counsel, “an advertisement without deliberation in accordance with Article 57 of the Medical Service Act or differently from the subject of deliberation” prohibited by Article 56(2)9 of the same Act, the contents of the advertisement can not be punished unless it relates to medical services. ③ In light of Article 56(5) of the Medical Service Act’s detailed criteria for medical advertising prohibited under Article 23(1) of the Enforcement Decree of the Medical Service Act, the Medical Service Act.

D) Whether a medical record stating false career can be seen as an advertisement

The defendant's defense counsel asserts that keeping the medical records in the hospital with false career of the defendant is merely merely an indication and not an advertisement.

① However, according to Article 2 subparag. 2 of the Act on Fair Labeling and Advertising and Article 2 of the Enforcement Decree of the same Act, advertising disturbance includes that a business operator, etc. widely inform or present to consumers of matters concerning himself/herself or other business operators by using the leaflet, poster, poster or other similar media or means. ② The Defendant’s posting of his/her medical records in his/her hospital room constitutes not only a patient being treated, but also an unspecified and unspecified person visiting a hospital, such as a patient’s guardian or visitors who have not yet decided on whether to treat the patient or a patient who visited the hospital for consultation, etc. without consultation. ③ The medical records of the medical personnel are one of the important factors considered when determining whether to receive medical treatment from the medical personnel in a broad sense. In full view of the above, the Defendant’s act of keeping a medical records containing false career in a hospital constitutes an advertisement in which the Defendant solicits consumers to choose the medical services provided by the Defendant. This part of the Defendant’s assertion is without merit.

2) Non-signing part of medical records

According to Articles 90 and 22(1) of the Medical Service Act (amended by Act No. 10565, Apr. 7, 2011), each medical person shall keep records of medical treatment, assistance in child delivery, nursing records, and other records concerning medical treatment (hereinafter “medical records, etc.”) and shall record and sign the matters and opinions concerning the relevant medical practice in detail. Thus, the Defendant, who is a medical doctor, has a duty to prepare and sign the medical records directly.

Therefore, the defendant's defense counsel's assertion that since the nurse who is a medical person prepares medical records, it is not in violation of the law, and punishing the defendant only by omitting his/her signature is too harsh is not reasonable.

3) The point of the non-examination of medical service advertisements

The Defendant’s defense counsel asserted that the contents of the interview cannot be viewed as medical advertising. However, the Defendant’s interview contents are as follows: “○○○○○○○○○ and Defendant’s president, located in the south-west ( Address omitted) of the Republic of Korea, established the latest-type hospital with the highest facilities located in the Suwon-gun and the Navy, leading to study in the U.S. D. D. D. D. dental college without the end of △△ Director and the charges of learning. The extensive clinical experience and career of the △ Director were sufficient to care for the patients, but it is sufficiently sufficient to obtain academic knowledge and expertise of the △ Director, which are supporting this, and that the Defendant’s △△○○○○○’s request for medical treatment for the promotion of the quality of technology held by the Director of △△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△.” Furthermore, the Defendant’s authority of the Defendant was 5th.

B. The point of unfair sentencing

In full view of all sentencing conditions in the instant case, including the Defendant’s age, character and behavior, environment, background and consequence of the instant crime, circumstance after the instant crime, etc., the lower court’s punishment is too unreasonable, and the Defendant’s above assertion is not reasonable, on the grounds that there are favorable circumstances, such as the fact that there is no specific penalty power in addition to the fine, and the circumstance that the instant crime was discovered, etc., may be somewhat considered to be considered in light of the circumstances favorable to the Defendant, or that the Defendant only contributed to consumers through false exaggerated advertising, as well as that the Defendant was unable to properly manage the medical records that should be prepared and managed as a matter of course.

4. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Jong-ho (Presiding Judge)