[1] Whether a violation of Article 41 of the Medical Service Act, which is punished pursuant to Article 90 of the Medical Service Act, is limited to cases where a medical person on duty is not on duty (affirmative), and whether a punishment for failing to comply with the number of medical persons on duty under Article 18(1) of the Enforcement Decree of the Medical Service Act is against the principle of no punishment without law

[2] In a case where the Defendant, who is an operator of a convalescent hospital, was indicted for violating the Medical Service Act on the grounds that he operated the hospital without any medical personnel on duty necessary for the treatment of patients with 130 or more inpatientss, the case holding that the Defendant not guilty on the ground that the Defendant cannot be punished on the ground that he did not violate Article 41 of the Medical Service Act since he placed three nurses at the time of the hospital as a medical personnel on duty, and that he failed

[1] Article 41 of the Medical Service Act provides that "All kinds of hospitals shall have medical personnel on duty necessary for the treatment, etc. of emergency patients and inpatients," and there is no provision in the Medical Service Act as to the specific contents of medical personnel on duty, such as the number of medical personnel on duty and the qualification of medical personnel on duty, and there is no provision to delegate the specific contents of medical personnel on duty to other subordinate regulations, such as Presidential Decree, to other subordinate regulations.

Although Article 18(1) of the Enforcement Decree of the Medical Service Act provides the number of medical personnel on duty to be placed according to the scale of this hospital, this provision is without specific delegation of the law. However, as the subordinate law was delegated by the subordinate law, the subordinate law does not directly provide for matters that restrict the freedom and rights of the people, as if the subordinate law was delegated by the subordinate law, the violation of Article 41 of the Medical Service Act, which is punished pursuant to Article 90 of the Medical Service Act, is limited to cases where there is no medical personnel on duty, and it goes beyond this, punishing the act of not complying with the number of medical personnel on duty as provided by Article 18(1) of the Enforcement Decree of the Medical Service Act, which

[2] In a case where the Defendant, who is an operator of a convalescent, was indicted for violating the Medical Service Act on the grounds that he operated the hospital without any medical personnel on duty necessary for the treatment of patients with 130 or more inpatientss, the case holding that the first instance court which found the Defendant guilty erred by misapprehending the legal principles or by misapprehending the legal principles, even though the Defendant cannot be punished on the ground that he did not meet the number of medical personnel on duty under the Enforcement Decree of the Medical Service Act, since three nurses were placed and worked as medical personnel on duty at the time, so long as the Defendant did not have any medical personnel on duty

[1] Articles 12(1) and 37(2) of the Constitution of the Republic of Korea; Articles 2, 41, and 90 of the Medical Service Act; Article 18(1) of the Enforcement Decree of the Medical Service Act / [2] Articles 12(1) and 37(2) of the Constitution of the Republic of Korea; Articles 2, 41, and 90 of the Medical Service Act; Article 18(1) of the Enforcement Decree of the Medical Service Act; Article 325 of the Criminal Procedure Act

[1] Constitutional Court en banc Order 2002Hun-Ga20, 21 Decided January 29, 2004 (Hun-Gong89, 211)

Defendant

Defendant

Jeong-ho et al.

Attorney Han Dong-dong et al.

Daegu District Court Decision 2014Gohap2117 Decided November 5, 2014

The judgment of the court below is reversed.

The defendant shall be innocent.

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

1. Summary of grounds for appeal;

In light of the legislative purport of the Medical Service Act and the Enforcement Decree of the Medical Service Act, it cannot be deemed that the place on duty prescribed in Article 41 of the Medical Service Act is limited to the place where a medical person on duty works, and in the case of a convalescent hospital where there is no need for an urgent medical treatment of an emergency patient, medical personnel on duty may be placed according to its own standard pursuant to Article 18(2) of the Enforcement Decree of the Medical Service Act. Thus, once the defendant has placed a physician on duty in an emergency way while staying in a four-minute distance from the outside of the hospital and waiting for an emergency call, it cannot be deemed that the defendant violated Article 41 of the Medical Service Act. Nevertheless, the judgment of the court below guilty of the charges

2. Ex officio determination

The grounds for appeal are examined ex officio before determining the grounds for appeal by the defendant.

A. Summary of the facts charged in this case

The defendant is a person who operates the "○○○ Long-term Care Hospital" in Daegu Dong-gu ( Address omitted).

Although all kinds of hospitals have medical personnel on duty necessary for the treatment of emergency patients and inpatients, the Defendant operated the above hospital without having medical personnel on duty necessary for the treatment, etc. of patients with approximately 130 in the above ○○ hospital from around 18:00 on June 24, 2014 to around 09:00 on June 25, 2014.

B. Relevant statutes

The entries in the attached statutes are as follows.

C. Judgment of the court below

(1) Delegation of matters that limit the freedom and rights of the people to a subordinate norm, other than a law, should be prescribed by the law itself to delegate it to a subordinate norm. As a result of delegation of the subordinate law with respect to matters that are not completely delegated by the subordinate law, the subordinate law cannot directly stipulate matters that limit the freedom and rights of the people, as if it was delegated by the subordinate law. If so, it would result in allowing the subordinate law to define and restrict the freedom and rights of the people, not by the law, but by the subordinate law. Thus, it is because the restriction on all freedom and rights of the people is directly in violation of the former part of Article 37(2) of the Constitution that prescribes that the restriction on all freedom and rights of the people can only be imposed by the law (see Constitutional Court en banc Decision 2002Hun-Ga20, Jan. 29,

(2) Based on the above legal principle, Article 41 of the Medical Service Act only provides that “All kinds of hospitals shall have medical personnel on duty necessary for the treatment of emergency patients and inpatients, etc.,” and there is no provision in the Medical Service Act concerning the specific contents of medical personnel on duty, such as the number of medical personnel on duty and the qualification of medical personnel on duty, and there is no provision to delegate the specific contents of medical personnel on duty to other subordinate regulations, such as Presidential Decree, at all.

Although Article 18(1) of the Enforcement Decree of the Medical Service Act provides the number of medical personnel on duty to be placed according to the scale of this hospital, this provision provides without specific delegation of the law. As such, the subordinate law can not directly provide for matters that are not wholly delegated by the subordinate law, as if the law was delegated by the subordinate law, which restrict the freedom and rights of the people, so a violation of Article 41 of the Medical Service Act, which is punished pursuant to Article 90 of the Medical Service Act, shall be limited to cases where there is no medical personnel on duty, and further punishment for failing to comply with the number of medical personnel on duty as provided by Article 18(1) of the Enforcement Decree of the Medical Service Act, which is not based on the law,

(3) According to the evidence duly adopted and examined by the court below, it is recognized that three nurses were placed as medical personnel on duty at the time of the instant hospital at the time of the instant case. As long as the Defendant placed a medical personnel on duty as above, it cannot be deemed that the Defendant violated Article 41 of the Medical Service Act, and that the Defendant failed to meet the number of medical personnel on duty under the Enforcement Decree of the Medical Service Act, the Defendant cannot be punished. Nevertheless, the court below found the Defendant guilty of the facts charged in the instant case, by misapprehending the legal principles as to the principle of legality or

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364 (2) of the Criminal Procedure Act without examining the grounds for appeal by the defendant, and the judgment below is reversed and it is again decided as follows after pleading.

Re-written Judgment

The summary of the facts charged of this case is as stated in Article 2-A(a) of the above Act, and as seen in Article 2-3(c) of the above Act, since the facts charged of this case fall under the case when there is no proof of crime or no crime, it shall be sentenced not to the defendant pursuant to Article 325 of the Criminal Procedure Act, and the summary of the judgment of not guilty against the defendant pursuant to Article 58(2) of the Criminal Act shall be announced

[Attachment] Relevant Statutes: omitted

Judges Kim Jong-hee (Presiding Judge)

1) “Medical person” under Article 2(1) of the Medical Service Act includes not only a doctor but also a nurse.