무면허의료행위에 가담한 의사의 형사책임 - 대법 2012.5.10. 2010도5964와 대법 2014.9.4. 2012도16119를 중심으로 -

Abstract

Recent case law on the criminal liability of physicians for participating in the unlicensed practice of medicine by nonphysicians has recognized co-principal by functional control. One may question whether joint criminal liability can be established because of the physician’s passive status as a tort excluder. Existing case law and some theories believe that passive status is included in Article 33 of the Criminal Law, which regulates complicity and status, and therefore the doctor can be guilty of co-principal as well as being an accessory. However, considering the literal interpretation of Article 33 of the Criminal Law, the differing legislative intentions of the provision, and the existence of joint criminal liability, it is somewhat unreasonable to include passive status in Article 33. In particular, the inclusion theory does not provide a clear argument for recognizing the joint criminality of an unlawfully excluded person who participates in the crime of a non-status person, as is the case here. The few recent cases and many theories addressing this issue also no longer rely on Article 33 of the Criminal Law. Several recent cases and a number of theories suggest that the issue can be resolved under general complicity theory rather than Article 33. This position, in turn, is divided into two camps based on whether the passive identifiers can be jointly criminalized: those who believe that the passive identifiers’ identity marker excludes criminalization and therefore only accessory can be established, and those who believe that co-principal as well as accessory is possible. The former view is valid, but the criminal liability of a doctor who conspires with a non-medical practitioner to engage in unlicensed medical practice and a doctor who only aid it should be distinguished. In other words, even if a person is in an illegal excluded status, the illegality of engaging in illegal medical practice cannot be excluded, so as long as there is functional control, joint criminality can be established even if the person is in an illegal excluded status. However, unlike the attitude of recent cases that recognize joint criminality of doctors without any specific reasoning, it seems that it is necessary to closely examine whether it is an aider, abettor, and co-principal, or no crime is established depending on the type of case.