2. Of the costs of lawsuit, the part arising between the Plaintiff and the Defendant is assessed against the Defendant’s Intervenor, respectively.

A. On May 8, 2017, the Plaintiff submitted a medical institution establishment report to the Defendant to establish the △△△△△△△△△△△△ (hereinafter “instant building”). The Plaintiff filed a medical institution establishment report with the Defendant in order to establish the “mental Health Institute” (the facility area of 473.85m2, four sick rooms, one medical specialist, one nurse, one assistant nurse, and one assistant nurse; hereinafter “instant council member”). However, the Defendant’s “the instant council member” is unlawful in the facility standards of mental medical institutions as stipulated in Article 33 of the Medical Service Act, Article 25 of the Enforcement Rule of the same Act, Article 12 of the Mental Health Act, Article 7 of the Enforcement Rule of the Mental Health Act, and the establishment and safety standards of fire-fighting systems are inappropriate due to the failure to install a commercial automation facility under Article 7 of the Installation and Safety Standards of Fire-Fighting Systems, and the establishment report is unlawful in light of the safety and interests of the users under Article 5 of the Act on the Ownership and Management of Aggregate Buildings, and the Building Act.

B. On May 26, 2017, the Plaintiff filed a new report on the establishment of the instant Council member (hereinafter “instant report”) with the Defendant by supplementing the grounds for the foregoing non-acceptance, and the Defendant, as a result of the investigation of the instant Council member’s facilities in accordance with the instant report, determined that “the instant Council member’s facilities conform to the relevant statutes, but are inappropriate for public welfare by going against the safety and common interest of the buildings, sectional owners, etc.”

C. As a result of the foregoing investigation, on June 16, 2017, the Defendant rejected the instant report from the Plaintiff on the ground that “the establishment of the instant council member is contrary to the safety and common interests of the sectional owners, occupants, and facility users under Article 5 of the Act on Ownership and Management of Condominium Buildings, and is detrimental to the promotion of public welfare due to the safety of a building under Article 1 of the Building Act, and the exercise of property rights under Article 23 of the Constitution is unlawful for public welfare (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 to 6, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The instant report falls under the so-called “report that does not require acceptance,” and the Defendant is authorized to examine only the formal requirements prescribed by relevant statutes, and it is unlawful to accept the instant report on the grounds of substantial requirements, such as the instant non-acceptance reason.

2) Since the establishment of the instant member cannot be deemed as impeding the promotion of public welfare or threatening safety, the reason for non-acceptance of the instant case is unreasonable, as well as the disposition of the instant case violates the principle of equality in comparison with the psychiatrists established at a place similar to the instant building.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Legal nature of the instant report

A) The term “report” means “public law making a private person known a certain fact to an administrative body for the purpose of causing the effect of public law.” If the instant report falls under a report as its original meaning, that is, a report that does not require acceptance, an administrative agency may conduct an examination within a formal scope, such as whether there is any defect in the matters to be stated in the report, whether necessary documents are attached, and whether the report is in conformity with the form prescribed in other statutes. On the other hand, if the instant report is accepted by the administrative agency, the administrative agency may determine whether to accept the report in addition to the above formal requirements, if it falls under the so-called “report requiring acceptance.”

B) According to such classification, in light of the following circumstances acknowledged by comprehensively taking into account the legal nature of the instant report and the content, purport, and history of the relevant provisions of the Medical Service Act, it is reasonable to deem that the establishment report of a medical institution of the same nature as the instant report falls under the so-called “report that does not require acceptance.” Thus, an administrative agency should accept the instant report as a matter of course without any further review or decision in a case where the requirements in form are not satisfied (see Supreme Court Decision 84Do2953, Apr. 23, 1985).

① Since the amendment of the Medical Service Act by Act No. 2533 on February 16, 1973, where a medical doctor, dentist, etc. intends to establish a clinic, dental clinic (at least 30 patient beds), etc., the Medical Service Act shall require the head of a Si/Gun/Gu to report to him/her (Article 33(3) of the Medical Service Act); where a general hospital, hospital, dental hospital, oriental medical hospital, or convalescent hospital is intended to establish a general hospital, dental hospital, oriental medical hospital, or convalescent hospital, the person shall obtain permission from the Mayor/Do Governor (Article 33(4) of the Medical Service Act); where a medical institution already established intends to relocate its place or change the important matters prescribed by Ordinance of the Ministry of Health and Welfare among the reported or permitted matters on the establishment of the medical institution, the said Act also provides that the

② Unlike those cases where a medical institution is established without permission, the Medical Service Act imposes an administrative fine not exceeding three years, or a fine not exceeding ten million won upon the person who established the medical institution without permission (Articles 88 and 33(4) of the Medical Service Act). Unlike those where a medical institution is established without reporting (Articles 90 and 33(3) of the Medical Service Act), the Medical Service Act imposes an administrative fine not exceeding three million won upon the person who fails to report any change in the matters originally permitted (Articles 90 and 33(5) of the Medical Service Act). As such, the Medical Service Act clearly distinguish cases where a person violates a duty to report and violates a duty to report (Articles 92(3)2 and 33(5) of the same Act).

③ Article 40 of the Administrative Procedures Act provides that “a report that terminates an obligation by notifying a competent administrative agency of certain matters” shall be deemed to have been fulfilled upon the arrival of the receiving agency of the report, if the report satisfies the requirements prescribed in the form prescribed in statutes, such as any defect in the matters stated in the report, any necessary document is attached, and other Acts and subordinate statutes. The notification obligation shall be deemed to have been fulfilled upon the arrival of the receiving agency. Even if such formal requirements are satisfied, the acceptance of the report shall not be denied on the ground of substantive reasons related to the reported contents (see, e.g., Supreme Court Decision 2005Du11784, Jul. 28, 2011). In the Medical Service Act, there is no special provision that, if a medical institution reports the establishment, the administrative agency may substantially review and decide on

[Defendant may verify whether the establishment of a medical institution is restricted or prohibited pursuant to Article 33(3) of the Medical Service Act, and Article 25(2)4 of the Enforcement Rule of the Medical Service Act, so it is reasonable to interpret that the report on establishment of a medical institution constitutes "the reporting "the establishment of a medical institution pursuant to other Acts and subordinate statutes," and that the report on establishment of a medical institution is merely a meaning that it can confirm whether the establishment of a medical institution complies with the type requirements prescribed in Article 25(2)1 through 3 of the Enforcement Rule of the Medical Service Act, as seen earlier, in light of the contents of Article 25(2)1 through 3 of the Enforcement Rule of the Medical Service Act, and in light of the contents of Article 25(2)4 of the Enforcement Rule of the Medical Service Act.

2) The illegality of the instant disposition on the ground of the non-acceptance of the instant case

A) In light of the above relevant legal principles and the contents of the relevant provisions, the Defendant’s facility of the instant Council members is appropriate to the relevant law, but the fact that the instant disposition was rendered on the ground of the instant non-acceptance reason that it is against the safety and common interest of sectional owners, etc., and may hamper the promotion of public welfare due to the obstruction of building safety. As seen earlier, the Defendant’s ground for non-acceptance of the instant report cited by the Defendant is related to the substantial reason for the instant report beyond the scope of the examination of formal requirements under the relevant laws and regulations, such as the Medical Service Act, and is not included in the scope of the Defendant’

B) Therefore, the instant disposition that the Defendant did not receive the instant report is unlawful without further examining the substantive requirements, such as the instant non-acceptance reason, which is not a form requirement, separately.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition by admitting it.

[Attachment]

Judges Han Young-young (Presiding Judge)