[1] The scope of application of the legal principles on partial invalidation and relation with the mandatory law

[2] Whether Article 41 (3) of the former Medical Service Act, which provides that a medical corporation shall obtain permission from the Mayor/Do Governor in cases where it intends to dispose of its property (affirmative)

[3] Where a medical corporation has agreed to provide collateral in excess of the permitted limit pursuant to Article 41(3) of the former Medical Service Act, whether the part of the agreement to provide collateral that exceeds the permitted limit is null and void (negative)

[1] Article 137 of the Civil Act / [2] Article 41(3) (see current Article 48(3)) of the former Medical Service Act (amended by Act No. 8366 of Apr. 11, 2007) / [3] Article 137 of the Civil Act, Article 41(3) (see current Article 48(3)) of the former Medical Service Act (amended by Act No. 8366 of Apr. 11, 2007)

[1] Supreme Court Decision 2003Da1601 Decided June 11, 2004 (Gong2004Ha, 1148), Supreme Court Decision 2004Da2199 Decided June 25, 2004, Supreme Court Decision 2006Da38161, 38178 Decided June 28, 2007 (Gong2007Ha, 1150) / [2] Supreme Court Decision 93Da2094 Decided July 16, 1993 (Gong193Ha, 2288)

Plaintiff (Law Firm Dongin, Attorneys Ansan-gu et al., Counsel for the plaintiff-appellant)

1. A person who is a party to a contract;

Seoul High Court Decision 2007Na58225 decided April 16, 2008

All appeals are dismissed. The costs of appeal are assessed against each party.

We examine the grounds of appeal.

1. As to the Plaintiff’s appeal

Article 137 of the Civil Act is a voluntary provision that applies in the area governed by the principle of autonomy of intention. Thus, in cases where part of a juristic act becomes null and void due to its violation of the validity clause, which is a mandatory law, determination of whether such part affects the validity and invalidity of the remaining part, if an individual law provides for the validity of partial invalidation, it shall be followed, and if there is no such provision, Article 137 of the Civil Act shall apply in principle. However, if the remaining part is null and void in light of the legislative purport of the pertinent validity provision and its validity provision, it shall not be deemed null and void (see Supreme Court Decisions 2003Da1601, Jun. 11, 2004; 2004Da2199, Jun. 25, 2004; 2004; 3816Da3817, Jun. 28, 2007, etc.).

According to the reasoning of the judgment below, the non-party medical corporation established a right to collateral security with the maximum amount exceeding 3.12 billion won on February 2, 2002 under the condition that the non-party medical corporation obtained only the limit of collateral security with respect to the same (number 1 omitted) as 750.7 square meters on the same (number 2 omitted) and 1522 square meters on the land owned by it from the head of the Dong-dong, Daejeon Special Metropolitan City (hereinafter "the land of this case"), which was subject to the above provision of Article 41 (3) of the former Medical Service Act, for which the non-party medical corporation had already obtained the above provision of collateral security with the maximum amount of collateral security amount exceeding 3.12 billion won on the land of the non-party medical corporation, which had already been subject to the above provision of Article 41 (3) of the former Medical Service Act (amended by Act No. 8366 of Apr. 11, 2007). The above provision is null and void for the above provision of 97.

The court below determined that the agreement on the establishment of a collateral security on the part already permitted among the above collateral security established with respect to the land of this case is valid, and the above determination by the court below is just in its reasoning, but it is not erroneous in the incomplete deliberation which affected the conclusion of the judgment, or in the misapprehension of the legal principles as to the violation of the rules of evidence or the partial invalidation.

2. As to the defendant's appeal

The defendant did not submit the appellate brief within the statutory period, and the defendant did not state the grounds for appeal in the petition of appeal filed by the defendant.

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 Ill-sook (Presiding Justice)