의사의 배임수재죄에 있어서의 타인의 사무 개념

Article 357 of the Korean Criminal Code prohibits giving economic benefits to a person who is entrusted with conducting the business of another person if such benefits are related to an improper request made in connection with the duties of the person in question. The case laws of the Korean Supreme Court and commentators' recent positions have adopted "Physicians's Conducting the Business of Medical Institutions" theory for the purpose of applying the commercial bribery provision to physicians who received illegal rebates from pharmaceutical or medical device companies by defining physicians' duties relating to their criminal liabilities as their responsibilities to properly select drugs or medical devices for their employers, medical institutions. However, considering that the legal relationships between physicians and their patients constitute delegation agreements, physicians should provide "the best treatment" to their patients under the Medical Services Act and the Korean Supreme Court also held that a physician has legal rights and duties as a proxy for his/her patients to select drugs on behalf of them, the major legal ground of physicians' criminal liabilities under the commercial bribery provision should be considered as being derived from the violations of responsibilities arising from the legal relationships between physicians and their patients. This "Physicians's Conducting the Business of Patient" theory can solve legal problems of "Physicians's Conducting the Business of Medical Institutions" theory, such as impossibility to apply the commercial bribery provision to physicians who run their own clinics and have no employer even in case of their receiving illegal rebates. It would be more reasonable interpretation of laws to recognize patients' legal status as parties of medical service agreements to cooperate with physicians for their treatment, the main purpose of such agreements and victims of criminal bribery cases triggered by physicians' receiving illegal rebates.