[2] In the case of the establishment of a mental hospital, etc. under Article 19(1) of the Act on the Improvement of Mental Health and the Support for Welfare Services for Mental Patients and the Medical Service Act, whether the establishment of a mental clinic is in violation of the principle of equality under the Constitution and the obligation of the State to protect fundamental rights (negative)

Meanwhile, Article 33(3) of the Medical Service Act provides that a person who intends to establish a medical clinic, dental clinic, oriental medical clinic, or midwifery clinic shall report to the head of the competent Si/Gun/Gu (Article 33(4)). However, where a person intends to establish a general hospital, hospital, dental hospital, oriental medical hospital, or convalescent hospital, he/she shall obtain permission from the competent Mayor/Do Governor (Article 33(4)). As can be seen, the Medical Service Act separates the system of permission and reporting depending on the type of medical institution. The purpose of the provision is to ensure that a person who establishes a clinic-level medical institution subject to reporting can promptly establish the relevant medical institution by excluding, in principle, rejection of the report

In full view of the contents of the relevant statutes and the purport of the reporting system, when a person who intends to establish a mental medical clinic satisfies the requirements prescribed by statutes and reports the establishment thereof, the administrative agency, in principle, shall accept the report and issue a certificate of completion of report, and shall not refuse to accept the report on the establishment of a clinic-level medical institution for reasons other

[2] The principle of equality under the Constitution prevents a person from arbitrarily treating the same in essence. It refers to a relative equality that does not mean an absolute equality that denies any and all discriminatory treatments, but rather a discrimination that does not have any reasonable grounds when enacting and applying the law. As such, discrimination or inequality based on a reasonable ground does not go against the principle of equality. In addition, the duty to protect fundamental rights under the Constitution refers to the State’s duty to protect fundamental legal interests from illegal infringement or risk of infringement by a private person, who is the subject of fundamental rights, and mainly refers to a matter of personal life or physical harm by a third party, who is a private person.

In light of such legal principles, the pertinent statutes stipulate the establishment of mental hospitals, etc. as permission system, and the establishment of mental clinics as reporting system is reasonable discrimination that reflects differences in the purpose and scale of establishment of each medical institution, and cannot be deemed as violating the principle of equality. Moreover, the reporting system cannot be said to have increased the risk of personal life or physical damage by a third party, which is a private person, and thus, cannot be deemed to violate the duty to protect fundamental rights.

1. Regarding ground of appeal No. 1

A. Article 19(1) of the Act on the Improvement of Mental Health and the Support for Welfare Services for Mental Patients (hereinafter “mental Health Improvement Act”) provides that “Establishment of a mental medical institution shall be governed by the Medical Service Act. Notwithstanding Article 36 of the Medical Service Act, matters necessary for the standards for facilities and equipment of a mental medical institution and the number of and qualifications for employees, including medical personnel, shall be determined separately by Ordinance of the Ministry of Health and Welfare, taking into account the scale of the mental medical institution.” According to the delegation of the latter part of the foregoing provision, the Enforcement Rule [Attachment 3] and [Attachment 4] of the same Act specifically stipulate the standards for facilities and equipment and the number of employees

Meanwhile, Article 33(3) of the Medical Service Act provides that a person who intends to establish a medical clinic, dental clinic, oriental medical clinic, or midwifery clinic shall report to the head of the competent Si/Gun/Gu (Article 33(4)). However, where a person intends to establish a general hospital, hospital, dental hospital, oriental medical hospital, or convalescent hospital, he/she shall obtain permission from the competent Mayor/Do Governor (Article 33(4)). As can be seen, the Medical Service Act separates the system of permission and reporting depending on the type of medical institution. The purpose of the provision is to ensure that a person who establishes a clinic-level medical institution subject to reporting can promptly establish the relevant medical institution by excluding, in principle, the return of the report

B. In full view of the contents of the relevant statutes and the purport of the reporting system, when a person who intends to establish a psychiatrist satisfies the requirements stipulated in the statutes and reports the establishment thereof, the administrative agency, in principle, shall accept the report and issue a certificate of completion of report, and shall not refuse to accept the report on establishment of a clinic-level medical institution for reasons other than those stipulated

C. According to the reasoning of the lower judgment and the record, even though the Plaintiff satisfied all the requirements stipulated in the law and reported the establishment of a mental medical clinic, the Defendant, on the ground that the establishment of a mental medical clinic is contrary to the safety and common interest of the sectional owners, etc. of the pertinent building, impeding the promotion of safety, function, environment, and public welfare of the building, and the exercise of property rights inappropriate for public welfare, can be seen as

Examining these circumstances in light of the legal principles as seen earlier, the instant disposition rejecting the establishment report solely on the ground that it does not meet the legal requirements on the establishment report of a psychiatrist is unlawful.

D. Of the reasoning of the lower judgment, it is not appropriate to determine that the Plaintiff’s report on establishment was “report which does not require acceptance.” However, the lower court’s conclusion that the instant return disposition was unlawful on the ground that the Defendant cannot refuse to accept the said report on establishment on the ground that it was not prescribed by statutes. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did

2. Regarding ground of appeal No. 2

A. The Intervenor asserts that the establishment of a mental medical institution under Article 19(1) of the Mental Health Improvement Act is unconstitutional because it violates the principle of equality under the Constitution and the State’s duty to protect fundamental rights, thereby having the head of a Si/Gun/Gu report to the head of a Si/Gun/Gu for the establishment of a mental medical institution, unlike a mental hospital, etc. which requires permission from the competent Mayor/

B. The principle of equality under the Constitution prevents a person from arbitrarily treating the same in essence. It refers to a relative equality that does not mean an absolute equality that denies any and all discriminatory treatments, but rather a discrimination that does not have any reasonable grounds when enacting and applying the law. As such, discrimination or inequality on which a reasonable ground exists is not contrary to the principle of equality (see, e.g., Supreme Court en banc Decision 2005Du14417, Oct. 29, 2007). In addition, the duty to protect fundamental rights under the Constitution refers to the State’s duty to protect the legal interests that are fundamental rights from illegal infringement or danger by a private person, the subject of fundamental rights, and mainly refers to the damage of personal life or body by a third party, a private person (see, e.g., Constitutional Court en banc Decision 2008Hun-Ba40, Feb. 24, 2011).

C. Examining in light of the aforementioned legal principles, the pertinent statutes provide for the establishment of mental hospitals, etc. as a permit system, and for the establishment of mental clinics as a report system, it is reasonable discrimination that reflects differences in the purpose and scale of establishment of each medical institution, and cannot be deemed as contrary to the principle of equality. In addition, the reporting system cannot be said to have increased the risk of personal life or physical damage by a third party, who is a private person, thereby violating the duty to protect fundamental rights. Accordingly, the foregoing ground of appeal cannot be accepted.

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)