The purport of Article 33(8) of the Medical Service Act that limits the number of medical institutions in which a doctor can establish and operate to one place / Where a doctor who already establishes and operates a medical institution in his/her name can be deemed to have established and operated a medical institution in duplicate.

The purport of Article 33(8) of the Medical Service Act, which limits the number of medical institutions that a doctor can establish and operate, to one place, is to set up a temporary limit so that a doctor who establishes a medical institution can concentrate on medical practice conducted at a medical institution based on his/her license, thereby protecting and promoting the health of the people.

Therefore, in a case where a doctor who already establishes and operates a medical institution under his/her own name employs another doctor and directly engages in the establishment and operation of a new medical institution under his/her own name, and further, where he/she directly provides medical services or hires a non-medical person to provide medical services under his/her own name, the above doctor who already establishes and operates a medical institution under his/her own name constitutes a case where a medical institution is already established and operated under his/her own name. In addition, where a doctor who already establishes and operates a medical institution under his/her own name takes over an existing medical institution where another doctor has established and operates the medical institution under his/her own name without filing a report or permission on change of the name under Article 33(5) of the Medical Service Act, or by borrowing another doctor's license, excluding the previous founder by receiving a report or permission on change of the name of the founder under his/her own name, and can be deemed to have practically controlled and managed the operation of the medical institution, such as the management of facilities and human resources of the medical institution, execution of necessary business, raising funds for operation, etc.

Article 33(2), (5), (8), and Article 87(1)2 of the Medical Service Act

Supreme Court Decision 2003Do256 Decided October 23, 2003 (Gong2003Ha, 2279) Supreme Court Decision 2006Do4652 Decided September 25, 2008 (Gong2008Ha, 1492)

Defendant 1 and one other

Defendants

Attorneys Cho Jae-sik et al.

Suwon District Court Decision 2016No2573 decided July 1, 2016

All appeals are dismissed.

The grounds of appeal are examined.

1. As to Defendant 1’s ground of appeal

The argument that the lower court erred in incomplete deliberation as to the grounds for sentencing constitutes an allegation of unfair sentencing. However, under Article 383 Subparag. 4 of the Criminal Procedure Act, only in the case where death penalty, life imprisonment, or imprisonment with or without labor for not less than ten years is imposed, an appeal on the grounds of unfair sentencing is allowed. As such, the argument that the sentencing of the sentence is unfair against the Defendant does not constitute legitimate grounds for appeal.

2. As to Defendant 2’s ground of appeal

A. The purport of Article 33(8) of the Medical Service Act that limits the number of medical institutions that a doctor can establish and operate to one place is to set the limit in place to ensure that a doctor who establishes a medical institution can concentrate on medical practice conducted at a medical institution based on his/her license, thereby ensuring the appropriateness of medical treatment and protecting and promoting the health of the people.

Therefore, in a case where a doctor who already establishes and operates a medical institution under his/her own name employs another doctor and directly engages in the establishment and operation of a new medical institution under his/her own name, and further, where the medical institution directly provides medical services or engages in non-medical activities under his/her own name by employing a non-medical person, the above doctor who already established and operates a medical institution under his/her own name constitutes a case where the former medical institution is established and operated in duplicate (see Supreme Court Decisions 2003Do256, Oct. 23, 2003; 2006Do4652, Sept. 25, 2008; 2006Do4652, a doctor who already established and operates a medical institution under his/her own name takes over the existing medical institution under which another doctor has established and operates, and without receiving a report or permission on change of the name of the founder under his/her own name, etc., or by borrowing his/her license under his/her own name, and thus, constitutes an act of establishing and managing the medical institution under his/her own name.

B. Review of the reasoning of the lower judgment and the evidence duly admitted and examined by the first instance court as cited by the lower court reveals the following facts.

(1) Around July 2013, Defendant 2, who had operated the “○○ Hospital” in the Silsan City ( Address 1 omitted), concluded an exchange contract with Nonindicted 2, who had operated the “△△△△ Hospital” in the Silsan-si ( Address 2 omitted), to exchange and operate the “△△△△ Hospital” (hereinafter “instant exchange contract”). At the time, Nonindicted 2 was in a situation where it was difficult for the △△△ Hospital to normally operate the “△△△ Hospital due to the burden of large amount of debt, and Nonindicted 2 was in the process of the real estate auction due to the fact that, as to the building of the △△△△ Hospital, it was in progress due to the fact that it was difficult for the Suwon District Court to normally operate the “△△△△△ Hospital”.

(2) According to the instant exchange contract, Defendant 2 operated the name of the founder of the △△△ Hospital on August 5, 2013 with the permission of change from Nonindicted 2 to Defendant 2 pursuant to Article 33(5) of the Medical Service Act (hereinafter “△△△ Hospital”); and Nonindicted 2 operated the name of the founder of the ○○ Hospital on August 6, 2013 with the permission of change from Defendant 2 to Nonindicted 2 (hereinafter “○○ Hospital”).

(3) As Nonindicted 2 started to operate the ○○ Hospital as above, it was difficult for the existing creditors with respect to Nonindicted 2 to operate the hospital any longer by taking a provisional attachment on the ○○ Hospital’s property operated by Nonindicted 2. Accordingly, Nonindicted 2, as a U.S. citizen, was living in the U.S. on September 3, 2013, prepared a transfer contract with respect to the ○○ Hospital by lending the name of Nonindicted 4, a doctor who is unable to provide senior medical treatment, and was changed from Nonindicted 2 to Nonindicted 4 on September 4, 2013. Nonindicted 4 was paid KRW 500,000 per month in return for the above name transfer, and Nonindicted 2 was actually engaged in the medical treatment business at the ○○ Hospital.

(4) At the time of the change from Defendant 2 to Nonindicted 2, and from Nonindicted 2 to Nonindicted 4, Defendant 2 succeeded most of the employment of the employees of the ○ Hospital that Defendant 2 had been previously operated. The facilities were used as it was, and the customer was maintained.

C. According to the reasoning of the judgment below, the court below rejected the judgment of the court below that: (a) around September 5, 2013, Defendant 2 instructed Nonindicted 5, an employee of the △△△ Hospital, to work at the △△ Hospital; (b) had Nonindicted 5 take charge of the fund management work of the △△ Hospital from around that time to December 5, 2013; (c) exercised the right to make decisions on the payment of wages, purchase of goods, etc.; (d) Nonindicted 2 entered into an employment contract with the ○○ Hospital and received certain wages on or around September 5, 2013; and (c) Defendant 2 acquired profits from the operation of the △△△ Hospital through Nonindicted 5; and (d) Defendant 2 acquired profits from the operation of the △△△ Hospital through the △△△ Hospital; and (d) Defendant 2, Nonindicted 2, and Nonindicted 1, 2013, concluded that the △△△ Hospital was transferred to Defendant 21, following the agreement with the △△△ Hospital.

Examining the above facts and circumstances in light of the aforementioned legal principles, the lower court’s aforementioned measures are justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine

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

Justices Kim Jae-hyung (Presiding Justice)