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Article 347 of criminal law provides the act of deceiving another, thereby taking property or obtaining pecuniary advantage from another. On the other hand, the concepts of fraud and abuse are confused upon interpretation since the definition in National Healthcare Insurance Law is unclear, and it affects closely to the administrative measures such as surcharge levy by the period of inspection, therefore, the disputes continue in the forms of formal objection, administrative ruling and administrative litigation. This study aims to look over the legal problems on application of criminal fraud toward the abuse of ‘Paid Medical Expenses(Article 57, Sections 1 and 4 of the National Health Insurance Act)’. The main issues are concept of abuse(Article 57, Sections 1 and 4 of the National Health Insurance Act), the problems of Directions of Health-Welfare Ministry on aspect of ‘Nullum crimen sine lege’ Principles, the proper sentencing guidelines of fraud.

The Issuance of false medical certificates on Criminal Law or the Medical Service Act are frequently applied to the insurance fraud cases related with the medical certificate, prescriptions. The meaning of medical certificate is not defined on the crime of Issuance of false medical certificates, but considering the rule of Paragraph 1 of Article 17 of the Medical Service Act, which punishes drawing up the medical certificate by anyone except the doctor who has directly examined, and the principle of legality, the medical certificate applied with the crime of Issuance of false medical certificates should (1) include the judgment after current medical examination, (2) be written for the purpose of verifying the health status and (3) have a style that can be recognizable as medical document usually written by doctors. In addition, since there have been many argues on the range of application of the Paragraph 1 of Article 17 of the Medical Service Act, which generally regulates various kinds of documents such as medical certificates, prescriptions and others, which have different purpose and characters, the range of application of the clause above is needed to be interpreted strictly.

Vor kurzer Zeit gibt es viele Diskussion über die Unterbrechung der Freiheitsstrafe aufgrund der Krankheit. Man wollte ihre Voraussetzungen einerseits durch ‘Kommission für die Unterbrechung der Freiheitsstrafe’ andererseits durch doppelte medizinische Gutachten strenger machen. Jedoch muss man auf die im voraus zu entscheidende Frage antworten, ob das Recht des Gefangenen auf Gesundheit geschutzt wird, insbesondere die Gefangenen in Justizvollzugsanstalten medizinische Behandlungen genug nutzen können. Meine Antwort ist ‘Nein!’. Im kStvollzG bestehen die Regelungen für medizinische Behandlung mit staatlicher Beteilung und mit Selbstbeteiligung außer Justizvollzugsanstalten. Im Prinzip muss der Staat für die Behandlungskosten der Gefangenen bezahlen. In der Tat aber nicht. In diesem Beitrag wurden die Antwort auf die Vorfrage aufgrund der Erfolgen der zwei Rundfragen zu geben versucht, um die Voraussetzungen der Unterbrechung der Freiheitsstrafe strenger zu machen.

It is not easy to regulate the amount of radiation used for the medical purpose as there usually is more good than harm to the patient’s health and life caused by the medical exposure to the radiation. However, the rapid increase of the use of diagnostic radiation involves a high possibility of increasing the radiation hazard exposure. Therefore, it is imperative to implement effective regulations in order to secure the safety of diagnostic radiation. The one and only rule we currently have for the diagnostic radiation is “Medicine Act” with only one clause dedicated to regulate the safety management that does not include any rules for the medical radiation. A set of inclusive rules for the whole medical radiation inclusive of diagnostic radiation and therapeutic radiation need to be based on the “Medicine Act” rather than “Nuclear Safety Act” in order to protect the medical professionals, patients and the guardians of patients from the hazards of diagnostic and/or therapeutic radiation that was not used the purpose of medical treatment. If there is an administrative measure to be imposed to secure the safety of diagnostic radiation, it is considered as exertion of governmental authority of administrative agency. There must be clear and realistic legal guidelines for infringe on people’s interests. The administrative measures for the safety management of the diagnostic radiation must be clearly and specifically based on the law and the detailed standards for the administrative measures must be delegated by the presidential decree or departmental ordinance. Accordingly, the restrictions imposed by the administrative measures to the “Safety Inspection Institute of Radiation along with Radiation Exposure Measuring Institutes” should have clear legal basis as well and the detailed standards for the administrative measures should be regulated by the Ministry of Health and Welfare decree instead of the notification by the Director of Korean Centers for Disease Control and Prevention. While securing the safety of radiation on one side, careful review and upgrade on our legal system for the safety management of the diagnostic radiation is required on the other side to guarantee the legality, interest balance and reliability of the administrative measures.

In order to achieve the purpose of treatment for patients by a doctor, the instruction explanation obligation, which means that he should give patients the description in more details to prepare for postoperative sequelae or complications, is common with the advice explanation obligation as a doctor should explain some information to patients. Since the advice explanation obligation is the benefit and protection of the law for self determination right, but the instruction explanation obligation is one for the integrity of body and life, one can be distinct from the other. Judgments giving the instruction on the concept of instruction explanation obligation, specific methods of implementation and a range of compensation for damage are recently being made by courts at all levels including the Supreme Court. It is the time to systematize them. The contents which have been mainly discussed so far include the essence of above mentioned instruction explanation obligation. However, when the tendency of practice is considered, the efforts are required to admit the organic relevance between instruction explanation obligation and advice explanation obligation and to explain the relationship without any contradiction. For whereabouts of liability of proof, patients theoretically demonstrate the failure to implement it. However, when the theoretical consistency is maintained, it is likely to fail the intent to recognize the instruction explanation obligation and it may ask patients to prove something impossible to be proven. Thus, these things should be considered. Moreover, as the instruction explanation obligation is associated with medicine instruction obligation of a pharmacist and the coverage is being extended, it is the time to require the systematic study on the theoretical limit.

Traditionally, the Supreme Court has held that medical treatment agreements covered by national health insurance should be distinguished from other medical treatment agreements which are viewed as a consummation of the autonomous free will between doctor and patient. Namely, the Supreme Court views medical treatment agreements covered by national health insurance to be bound by the National Health Insurance Law with the intent to promote the applicability and comprehensiveness of the national health insurance scheme. Yet, issues of voluntary non-reimbursable treatments are triggered not only by the mistakes or moral hazard of medical care institutions but also by systemic limitations of national health insurance coverage criteria. Thus, there is a need for legislative measures that allow certain medical treatments to be included or reflected in the national health insurance coverage system so that patients may receive prompt and flexible medical treatments. To reflect such concerns, the Supreme Court made an exception for voluntary non-reimbursable treatments and developed a strict test to be applied in such cases in Supreme Court Judgment 2010 Doo 27639, 27646 (ruled on June 8, 2012 by the Grand Bench). Such judgment, however, is not a fundamental overturn of the Supreme Court’s prior rulings that voluntary non-reimbursable treatments are not allowed under the law. It is only a slight revision of its previous stance for cases in which there is a lack of legislative measures to make coverage of a new yet valid medical treatment possible under the current national health insurance coverage system.

In connection to the civil liability of the medical malpractice, plaintiff and courts are solving the medical disputes with theory of the liability based on tort law. because contract law does not enact the right of claim of solatium and a plaintiff’s lawyer and courts hesitate to use contract law. Medical treatment of doctor is main debt in medical contract and its incomplete performance gives rise to the violations of human’s life, body and health. Consequently a breach of medical contract leads to violations of personal rights. These violations spring from liability of contract as well as tort and damages from them are recognized based on medical contract law. A duty of explanation of doctor is a independent and appendant debt to the treatment debt. However its breach provokes violations of human’s life, body and health as well as a right self-determination. Therefore consolation money claim should be recognized. In case of the violation of patient’s life, body and health, patient’s family also can demand consolation money due to the violation of their’s own mental pain. However in case of the violation of only patient’s self-determination without informed concent, they can not demand it by reason of the violation of patient’s self-determination. But by reason of the violation of patient’s life, body and health that were recognized by proximate causal relation between violation of duty of explanation and abd execution, they can do.

Recently several hospitals have established a new nursing position so called, ‘the nurse in charge of education (NCE).’ The job description of NCE is to give a detail explanation on examination or test introduced to patients or a guide for those who are not familiar to hospital facilities at the out-patients level. The motivation of NCE position is the quality improvement in patient education on the sophisticated procedures or the follow up care for medical purposes to improve their compliances, as well in delivering services for outpatients or visitors in more informative and efficient way. The application of NCEA has been turned out positive and effective in patient satisfaction and unit management. However, special attention is brought to the scope and depth of the contents of education delivered by NCE which might overlap with the duty of physicians by the Medical Act. It is needed to clarify the role and job description of NCE in the context of Medical Act. The engagement of NCE to the Advanced Nursing Practitioner (ANP) is one of the possible solutions for a duty charge on patient education since ANP is a legislatively official position with higher license of RN at master level. Further discussion is needed to elaborate and arrange the details on the scope and content of patent education among health science professionals including RN, ANP and physicians.

A physician has to do his best for the better treatment of his patiensts. But, if a physician cannot remedy his patients because of the lack of hospital facilities, the lack of medical knowledge and etc., the physician must transfer his patients to another suitable hospital immediately. This is called the duty of interhospital transfer of patients. The necessity of interhospital transfer of patients is primarily ocurred in emergency medical care situations. The Supreme Court Decision 2010DO7070 delivered on April 29, 2010 is one of the important decisions related to the duty of interhospital transfer of patients. The Supreme Court ruled that there were the physician's medical malpractice and the causation between the physician's medical malpractice and the death of patient, as the physician has left the patient without due observations for 1 hour and 30 minutes after the caesarean operation inspite of mass bleeding during the operation, and has transferred the patient to another suitable hospital later. And the Supreme Court ruled that the transferring physician has to explain the situation of the patient in detail to the physician being transferred. I agree with the Supreme Court Decision. As decided by the Supreme Court, physicians will treat their patients more carefully and in case of necessity for transfer, physicians will transfer their patients with more caustion. However, the study for this issue should be continued hereafter because concrete standards are not given to lawers and physicians just by the Supreme Court Decisions itself.