In violation of Article 30 (2) 1 of the former Medical Service Act, medical personnel may be recognized as having established a medical institution overlapping in violation of the same Act.

Considering the legislative purport, etc. of Article 30(2)1 of the former Medical Service Act (amended by Act No. 8366 of Apr. 11, 2007) that allows a new member to establish only one council member, a doctor may not be exempted from the liability for the crime of violating the above Medical Service Act in cases where a doctor who already opens and operates a council member in his/her own name employs a different doctor and directly engages in the establishment and operation of a new council member in his/her own name. Furthermore, if a new member directly provides a medical act or hires a non-medical person and engages in a medical act under his/her own jurisdiction, he/she cannot be exempted from the liability for the crime of violating the said Medical Service Act. This does not change because a new member’s another doctor directly provided a part of the medical act at the relevant council member or reported the establishment of the two members separately, or that the said two members actually provided a single member at the same place

Article 30(2)1 (see current Article 33(2)1) and Article 66 subparag. 3 (see current Article 87(1)2) of the former Medical Service Act (Amended by Act No. 8366, Apr. 11, 2007)

[Plaintiff-Appellant] Plaintiff 2003Na256 delivered on October 23, 2003 (Gong2003Ha, 2279)

Defendant 1 and one other

Defendants

Law Firm, Pacific, Attorneys Noh Young-soo et al.

Seoul High Court Decision 2006No414 decided June 23, 2006

All appeals are dismissed.

The grounds of appeal are examined.

1. In the case of the exercise of rights by means of deception, if the act belonging to the exercise of rights and the deception belonging to such means are comprehensively observed, and such deception is not acceptable as a means of exercise by social norms, the act belonging to the exercise of rights constitutes fraud. Therefore, as long as the operator of a medical institution claims insurance money with false contents to the extent that he/she actually received some amount of money from the insurance company to believe that it is true, there is fraud that takes the amount of fraud with the amount of fraud. It does not change even if there are circumstances where the ordinary insurance claim to be additionally paid by the insurance

In the same purport, the court below's decision that recognized fraud with the amount of money actually received by claiming the false insurance money from the medical institution established and operated by the defendants is just, and there is no illegality of misunderstanding the legal principles on the establishment of fraud and the amount of fraud. The defendants' assertion in this part is not acceptable.

2. Considering the legislative purport, etc. of Article 30(2)1 of the former Medical Service Act (amended by Act No. 8366 of Apr. 11, 2007) that allows a medical doctor to establish only one member, a doctor may not be exempted from liability for a crime of violation of the above Medical Service Act in a case where a doctor who has already established and operated a new member in his/her own name employs another doctor in his/her name and directly participates in the establishment and operation of a new member in his/her own name. Furthermore, if a member directly conducts a medical act or hires a non-medical person and allows another person to conduct a medical act under his/her own jurisdiction (see, e.g., Supreme Court Decision 2003Do256, Oct. 23, 2003). This does not change because another doctor, who is a new member of a council, has partially performed a medical act in his/her own name or has been separately established in the same two members, but has not been separated from each other, and has not been operated as a member in fact at the same place.

In the same purport, the judgment of the court below that Defendant 1 reported the establishment of three council members in the same name and the name of two other council members employed by Defendant 1, and in fact, he operated as one council member and performed medical acts for the patient, so long as he performed the medical acts for the patient, the court below is just, and it is not erroneous in the misapprehension of legal principles as to the scope of application of the above provision of the law. This part of the defendant 1's assertion is also rejected.

3. The remainder of the Defendants’ grounds of appeal is nothing more than a legitimate ground of appeal on the assessment of probative value or fact-finding by the lower court.

4. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)