A physician's co-principal liability for unlicensed medical practice

1. 01Question

   Can a physician who conspires with a non-physician, so that their common intent gives the physician functional control of the acts, be punished as a joint principal offender under Article 5(i) of the Special Act on Control of Health Crimes, does that offence survive the 2020 insertion of Article 87-2(2)(iii) of the Medical Act, and what do the purpose of profit and carrying on medical treatment as a business mean under Article 5(i)?

2. 02Holding

   The offence is made out where a person who is not a physician carries on medical treatment in breach of Article 27 of the Medical Act for the purpose of profit, and a physician who conspires with that person and exercises functional control over the acts under their common intent is liable as a joint principal offender. The 2020 insertion of Article 87-2(2)(iii) of the Medical Act did not displace it, because that provision punishes every act of causing unlicensed medical treatment regardless of a profit purpose or carrying on as a business, so the Special Act still applies, including where a physician is an accomplice. The purpose of profit is the aim of gaining economic benefit and need not belong to the person performing the treatment, and carrying on as a business covers treatment given with an intent to repeat, so a single act may suffice.

   Summary of the holding, verbatim

   그 신설 후에도 영리를 목적으로 무면허 의료행위를 업으로 하는 행위는 보건범죄단속법 제5조 제1호 위반죄에 해당하고, 이는 의사 등 의료인이 위 죄의 공범으로서 죄책을 지는 경우에도 마찬가지다.

   Unofficial English translation

   Even after the said new enactment, an act of engaging in unlicensed medical practice for profit as a business constitutes the crime of violating Article 5, subparagraph 1 of the Special Act on the Punishment of Health Crimes, and the same holds true where a doctor or other medical professional is held culpable as an accomplice of the said crime.

3. 03Disposition

   Dismissed Stated in the decision

   상고를 모두 기각한다.

   Unofficial English translation

   All appeals are dismissed.

4. 04Form of the test

   Elements stated Stated in the decision

   의료행위를 ‘업으로 한다.’고 함은 사실상 반복 계속하여 의료행위를 한 경우뿐만 아니라 반복 계속할 의사로써 의료행위를 한 경우도 포함하므로 단 한 번의 행위도 이에 해당할 수 있다.

   Unofficial English translation

   To 'engage in' medical practice 'as a business' includes not only the case where the person has in fact repeatedly and continuously performed medical practice, but also the case where the person has performed medical practice with the intent to do so repeatedly and continuously; accordingly, even a single act may fall within this.

5. 05Factors

   • 의사가 아니면서 영리를 목적으로 의료법 제27조를 위반하여 의료행위를 업으로 한 경우에 성립하는데
   • 그 공동의사에 의한 기능적 행위지배가 있다면 의사도 보건범죄단속법 제5조 제1호 위반죄의 공동정범으로서 죄책을 진다.
   • ‘영리의 목적’이란 널리 경제적인 이익을 취득할 목적을 말하는 것으로 무면허 의료행위를 행하는 사람이 반드시 그 경제적 이익의 귀속자나 경영의 주체와 일치하여야 할 필요는 없으며
   • 의료행위를 ‘업으로 한다.’고 함은 사실상 반복 계속하여 의료행위를 한 경우뿐만 아니라 반복 계속할 의사로써 의료행위를 한 경우도 포함하므로 단 한 번의 행위도 이에 해당할 수 있다.

   Unofficial English translation

   • the crime is established where a person who is not a doctor, for profit and in violation of Article 27 of the Medical Service Act, engages in medical practice as a business, and

   • if there is a functional control over the act based on their joint intent, the doctor is also held culpable as a joint principal offender of the crime of violating Article 5, subparagraph 1 of the Special Act on the Punishment of Health Crimes.

   • 'for profit' refers broadly to the purpose of obtaining economic benefits, and the person who performs unlicensed medical practice need not necessarily coincide with the person to whom those economic benefits accrue or the person who operates the business, and

   • to 'engage in' medical practice 'as a business' includes not only the case where the person has in fact repeatedly and continuously performed medical practice, but also the case where the person has performed medical practice with the intent to do so repeatedly and continuously; accordingly, even a single act may fall within this.

6. 06Relation to precedent

   Follows earlier decisions Stated in the decision

   대법원 2003. 9. 5. 선고 2003도2903 판결 등 참조

   Unofficial English translation

   See, e.g., Supreme Court Decision 2003Do2903 decided September 5, 2003

   Decisions referred to

   [2] 대법원 1989. 1. 10. 선고 88도1896 판결(공1989, 257), 대법원 2003. 9. 5. 선고 2003도2903 판결(공2003하, 2042)

7. 07Burden of proof

   Not addressed Not in the decision

8. 08Open question and revisit condition

   How strong must a physician's functional control over a non-physician's acts be before the physician is liable as a joint principal offender rather than an accomplice?

   A later decision defining the functional control required for joint principal liability in health crimes would make this entry be read again. So would an amendment to Article 5(i) of the Special Act on Control of Health Crimes or to Article 87-2(2)(iii) of the Medical Act, and the 2022No227 record, once the judgment becomes final, would show how the elements were proved in this case.

Read 2026-10-24 · Cross-read 2026-10-24. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.

Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.