(영문) 서울행정법원 2017.1.26. 선고 2016구합73894 판결

On June 1, 2016, the Defendant’s disposition to return the report to the Plaintiff on the establishment of a medical care place (catching place) shall be revoked.

Reasons

1. Details of the disposition;

A. On May 12, 2016, the Plaintiff reported the establishment of a medical institution to the Defendant on May 12, 2016 in order to establish a bed treatment facility in Dongdaemun-gu Seoul Metropolitan Government

B. On May 18, 2016, the Defendant requested the Plaintiff to supplement the following civil petition documents:

○ Change of the purpose of use of a copy of the certificate of medical care provider (inception and death) who is qualified pursuant to the provisions before the Medical Service Act enters into force (Enforcement Date: March 20, 1962) into a neighborhood living facility.

C. On June 1, 2016, the Defendant rejected the above establishment report on the following grounds (hereinafter “instant disposition”).

Pursuant to Article 81 of the Medical Service Act and Article 22 of the Enforcement Decree of the same Act, the Plaintiff’s report on the establishment of a civil petition shall be rejected. Pursuant to Article 81(1) of the Medical Service Act, a similar medical practitioner qualified pursuant to the provisions prior to the enforcement of the Medical Service Act may engage in medical practice as his/her business, but does not constitute C’s bedclothes qualification issued by “A Institute of Standard Dental Research”. ○○ B’s bedclothes qualification is not a private qualification registered pursuant to the Framework Act on Qualifications, but is not a private qualification registered pursuant to Article 17(1) of the Framework Act on Qualifications, and the qualification of a medical care provider under the Medical Service Act does not fall under a field where the Framework Act on Qualifications can be newly established.

[Reasons for Recognition] Unsatisfy, Gap evidence 2 to 4, Eul evidence 2 and 3 (including branch numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) According to Article 81(1) of the Medical Service Act, only a person who is qualified to engage in the pertinent procedure under the former National Medical Service Act before the full amendment to the Medical Service Act on March 20, 1962 can engage in the pertinent procedure as a business. This is unreasonable to require the current eligibility (hereinafter referred to as “the Chapter 1”).

2) Pursuant to Article 3 of the Addenda to the Framework Act on Qualifications (amended by Presidential Decree No. 11722, Apr. 5, 2013), bedclothess constitute a private qualification that can be operated pursuant to the Framework Act on Qualifications, and “a private qualification is administered and operated by the relevant specialized institution or organization designated by the Minister of Education”. As such, C, the Plaintiff’s representative, should be treated as the same qualification as that recognized by the State (hereinafter “section 2”).

3) In light of the fact that the Korea Vocational Skills Development Institute, which is an institution affiliated with the Prime Minister, recommended the Plaintiff to obtain the ISO certification having the same effect as the national certification, and the Plaintiff entered into an agreement on industry-academic cooperation with Duniversity on March 25, 2004 pursuant to the “Guidelines for the Implementation of Entrusted Education to the Enterprises of Junior Colleges”, and the Plaintiff provided entrusted education with the authorization of the Ministry of Education, and the Plaintiff provided the qualification for bedclothes workers by conducting the qualifying examination for bedclothess for those who completed the commissioned education at Duniversity, and the tax authority imposed the Plaintiff on the application fee for the qualification examination conducted by the Plaintiff, the instant disposition infringes on the Plaintiff’s trust interest granted by the State agency (hereinafter “Chapter Three”).

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(i) the outline and meaning of the relevant laws and regulations;

A) The former Medical Service Act, enacted by Act No. 221 on September 25, 1951, which was wholly amended by Act No. 1035 on March 20, 1962, stipulated that “the Medical Service Act of Korea, which was wholly amended by the Medical Service Act No. 1035 on March 20, 1962, shall be determined by the Ordinance of the Ministry of Maritime Affairs (Article 59)” (Article 59), and upon delegation, the Medical Care Act was enacted on January 1, 1960.

On March 20, 1962, the Korean Medical Service Act was wholly amended by Act No. 1035 on March 20, 1962. The amended Medical Service Act provides that "medical doctors, dentists, oriental medical doctors, midwifery clinics, and nursing centers shall be established as medical professionals, medical doctors, not dentists, and dental doctors, not dentists, not oriental medical doctors, not oriental medical doctors, not oriental medical doctors, not oriental medical doctors, not midwifery clinics, and not nursing professionals, shall provide nursing services (Article 2 and Article 25), and deleted the provisions concerning the medical care provider system, and further deleted the provisions concerning medical doctors, oriental medical doctors, oriental medical doctors, oriental medical doctors, oriental medical doctors, oriental medical doctors, maternity clinics, nursing centers, and other medical care providers' licenses and qualifications as well as other rights under this Act.

On the other hand, the Ministry of Health and Welfare was amended on July 21, 1962 by the Ministry of Health and Welfare No. 85 on July 21, 1962, and deleted the provision on the qualification of the operator of a charnel, bed, bed, bed, bed, bed

The former Medical Service Act, which was amended by Act No. 2533 on February 16, 1973, provides that no person, other than a medical person, shall conduct any medical practice, and no medical person, shall conduct any medical practice other than a licensed one (Article 24). Before this Act enters into force, the former Medical Service Act provides that a medical care provider, such as terrings, bedins, bedins, and bedins, shall be allowed to conduct such medical practice as a business (Article 59(1)), and the medical care provider’s age was abolished on October 31, 1973.

B) The title of the Medical Service Act seeking to protect and improve the health of the people based on the appropriateness of medical care

In light of the nature of the act of practice of medical care providers, such as hostiles and beds, the Korean Medical Service Act was wholly amended by Act No. 1035 on March 20, 1962, and the system of medical care providers providing qualifications to medical care providers was abolished. Only a doctor, etc. who passed a certain national examination and obtained knowledge and experience, and only a doctor, etc. who has been recognized as qualified by the previous provision (National Medical Service Act) was allowed to continue to perform such practice.

2) As to Chapter 1

As seen earlier, the Medical Service Act’s abolition of the medical care provider system allows herb doctors, etc. to perform such surgery only with respect to herb doctors, etc., but only limited to medical care providers, such as bedins, who obtained qualification under the former Medical Service Act. This cannot be deemed unreasonable to protect the people’s right to life and health and to fulfill the State’s duty to protect public health.

On the other hand, if there is a father (a broad meaning) who has excellent medical capacity for a specific field, not a medical person recognized by the law, it would be desirable for a legislative person to sufficiently verify his knowledge and ability in order to protect and promote national health, closely examine the net function and adverse effects of the case where he grants qualifications to medical personnel, and hold a way to conduct medical practice even to them, if there is a positive evaluation. However, it is only a matter of legislative policy (see Constitutional Court en banc Decision 2008Hun-Ga19, July 29, 2010; 2008Hun-Ba108, 2008Hun-Ba269, 736, 2010Hun-Ba2010Hun-Ma275, August 29, 2010).

Therefore, it cannot be deemed unfair to require the Defendant to prove the qualification under the provisions prior to the enforcement of the Medical Service Act (National Medical Service Act) pursuant to Article 81(1) of the Medical Service Act. Therefore, this part of the Plaintiff’s assertion is rejected

3) As to the second proposal

According to Article 17 (1) of the Framework Act on Qualifications, corporations, organizations, or individuals other than the State may establish, manage, and operate private qualifications, but the establishment, management, and operation of private qualifications shall be prohibited in the fields related to activities prohibited by other Acts and subordinate statutes, and the fields directly connected to the lives and health of the people.

As seen earlier, medical malpractice acts are directly connected to the lives and health of the people, medical personnel under the Medical Service Act, such as Korea's History, and persons other than medical care providers who have acquired qualifications under the provisions prior to the enforcement of the Medical Service Act are prohibited from engaging in the act of medical malpractice. Therefore, it is not possible to newly establish, manage, and operate bedclothes qualification regardless of whether the ‘Korea Institute of Education' has registered private qualifications to the relevant specialized institution or organization designated by the Minister

Therefore, we cannot accept this part of the plaintiff's assertion.

4) As to the third proposal

In general, in administrative legal relations, in order to apply the principle of protection of trust to the acts of an administrative agency, the first administrative agency should name the public opinion that is the object of trust to the individual, second, that the public opinion statement of the administrative agency is justifiable and trusted, there is no cause attributable to the individual, third, that individual should have trusted that opinion statement of the administrative agency, and third, that administrative agency should have conducted any act corresponding thereto. Fourth, the administrative agency should have made a disposition contrary to the above opinion statement, thereby infringing on the interests of the individual who trusted that opinion statement of the administrative agency. Lastly, when taking an administrative disposition in accordance with the above opinion statement of the administrative agency, it should not be likely to seriously undermine the public interest or legitimate interests of a third party (see, e.g., Supreme Court Decision 2004Du13592, Feb. 24, 2006).

With respect to this case, a state agency shall not be deemed to have any of the statements in evidence Nos. 14 to 17

It is difficult to see that the Plaintiff expressed the public opinion that the Plaintiff can conduct the medical care business, and there is no other evidence to acknowledge it.

Therefore, we cannot accept this part of the plaintiff's assertion.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.