The establishment of a medical institution prohibited by Article 33(2) and Article 87(1)2 of the Medical Service Act means that a non-medical person treats the facilities and human resources of the medical institution from the lead point of view, such as the supplement and management of the medical institution, the establishment report, the implementation of medical services, the raising of necessary funds, the reversion of the operational performance, etc.

Meanwhile, whether an act of establishing a medical institution by entering into an agreement between a non-medical person and a medical person, etc. constitutes an act of establishing a medical institution prohibited by the Medical Service Act ought to be determined by comprehensively taking into account the content and form of the business relationship, the degree of participation in the establishment of a medical institution, the types of operation of a medical institution, etc. in the position of who is led by all.

Accordingly, it is reasonable to view that the establishment of a legitimate medical institution is pretended only formally, and in substance, if it is deemed that non-medical persons established and operated a medical institution led, it violates the Medical Service Act (see, e.g., Supreme Court Decisions 2009Do2629, Oct. 27, 201; 2017Do378, Apr. 7, 2017). Furthermore, criminal facts have been proved to the extent that there is no reasonable doubt (Article 307(2) of the Criminal Procedure Act). However, the choice of evidence and the probative value of evidence conducted on the premise of fact-finding belongs to the free judgment of the fact-finding court (Article 308 of the Criminal Procedure Act). The lower court, on the grounds stated in its reasoning, participated in the fact-finding by the non-medicalF that actually established and operated the non-medical institution with sexual intercourse.

Recognizing that the first deliberation judgment as set forth by the person is reasonable, the Defendants’ assertion of the grounds of appeal by misunderstanding the facts and misunderstanding the legal principles on this issue is rejected, and also the assertion that the indictment needs to be changed in order to specify the completion period of the crime of establishing a medical institution is not acceptable.