[1] The purpose of Article 30(2)1 of the Medical Service Act, which limits the number of medical institutions a doctor can establish, to one place

[2] In a case where a doctor who has a medical institution under his/her own name established at a medical institution under another doctor's name, directly provides medical services or hires an unqualified person to provide medical services, whether the case constitutes a case where a medical institution is established in duplicate (affirmative)

[1] The purpose of Article 30(2)1 of the Medical Service Act, which limits the number of medical institutions that can be established by a doctor to one place, is to prevent in advance those who are not doctors by permitting the establishment of medical institutions only within the scope of the place where a doctor can directly perform medical practice.

[2] A doctor who establishes a medical institution under his/her own name and directly engages in the management of a newly established medical institution, such as opening another medical institution under the name of another doctor, employing his/her employees, paying allowances, and taking profits accruing from such business, cannot be deemed to have established a separate medical institution by borrowing another doctor's license. However, even if a medical institution established under another doctor's name, which directly provides a medical act or hires a unqualified person and provided a medical act under his/her own supervision, the case where a doctor, who is the title holder, newly established a medical institution, has already established a medical institution under his/her own name.

[1] Article 30 (2) 1 and Article 66 subparagraph 3 of the Medical Service Act / [2] Article 30 (2) 1 and Article 66 subparagraph 3 of the Medical Service Act

[1] [2] Supreme Court Decision 98Do2119 decided Oct. 27, 1998 (Gong1998Ha, 2812)

Defendant 1 and one other

Defendant 1 and Prosecutor

Law Firm Rate, Attorneys So-young et al.

Seoul District Court Decision 2002No1008 Delivered on December 27, 2002

The part of the lower judgment against Defendant 1 is reversed, and that part of the case is remanded to the Seoul District Court Panel Division. The Prosecutor’s appeal against Defendant 2 is dismissed.

1. Judgment on the grounds of appeal by the prosecutor

A. Summary of the facts charged as to the violation of the Medical Service Act

Co-defendant in the first instance trial established and operated "(the name of co-defendant in the first instance trial) internal medicine and mental medicine, Defendant 1, and Defendant 2 shall be a psychiatrist in each mental department, and even if a medical person could establish only one medical institution, the co-defendant in the third floor in the Gangnam-gu Seoul, Gangnam-gu, Seoul, on March 12, 1994, established and operated "(the name of co-defendant in the first instance trial) internal medicine in the third floor in the 501, Gangnam-gu, Seoul, Seoul, and prepared to establish a medical institution on May 12, 199, after installing and preparing for the installation of a medical device at the level of KRW 100,500,000,000 inside the 7th floor in the third building in the Gangnam-gu, Seoul, Seoul,

(1) Co-defendant 1 and Defendant 1 conspired, from May 12, 1999 to April 3, 2001, proposed that Co-defendant 7 of the above Samju Building will pay KRW 5 million per month to Defendant 1, and Defendant 1 accepted this, and the Co-defendant 1 established the "Scareman", which is a medical institution, with Defendant 1's medical license (as a result of the fact recognized by the original trial, it appears to be a clerical error of the "Scareman" as a medical institution according to the facts recognized by the original trial).

(2) Co-Defendant 2 and Defendant 2 conspired with each other between April 4, 2001 and June 6 of the same year, proposed that the co-defendant 2 pay 40% of the revenue if the monthly wage exceeds KRW 6 million and the gross sales exceed KRW 20 million to Defendant 2, and Defendant 2 accepted this and the Co-defendant 2 established "Seman Parkh" as a medical institution with Defendant 2's medical license.

B. The judgment of the court below

In full view of the evidence in its reasoning, the court below decided that Co-defendant 1 and 2 did not constitute the above co-defendant 1 and 5 in the name of Gangnam-gu Seoul on March 21, 1994, in the case of opening and operating the 501-1 and 5 mental health department (the name of Co-defendant 1 omitted) with Defendant 1's intention to pay KRW 5 million per month to Defendant 1, and that Co-defendant 1 did not constitute the 7th floor of the building located in Gangnam-gu, Seoul on May 12, 1999 with Defendant 1's own intention to establish 1 and 60,000 won for each of the above facts that Co-defendant 1 and 60,000 won for new medical institutions established under the name of the above co-defendant 1 and 60,000 won for the first time on April 25, 200, each of the above facts that Co-defendant 2 and 5,000 won for new medical institutions's own.

C. The judgment of this Court

(1) The purport of Article 30(2)1 of the Medical Service Act, which limits the number of medical institutions that can be established by a doctor to one place, is to prevent in advance those who are not doctors by permitting the establishment of medical institutions only within the scope of the place where a doctor can directly perform medical practice.

Therefore, it cannot be deemed that a doctor who establishes a medical institution under his own name directly engaged in the management of a newly established medical institution, such as opening another medical institution under another doctor’s name and directly employing its employees, paying the salary, and taking profits accruing from such business, etc. However, even if a medical institution established under another doctor’s name was established and provided with a separate medical institution under his/her own supervision, the above doctor who already established the medical institution under his/her own name, even if another doctor provided a part of the medical act directly at the newly established medical institution, constitutes a case where a doctor who already established the medical institution under his/her own name, established the medical institution (see Supreme Court Decision 98Do2119, Oct. 27, 199).

(2) Defendant 1’s violation of the Medical Service Act

According to the records, around March 198, Defendant 1 was employed as a mental doctor in charge of the above internal medicine and worked for 4 million won per week on condition that he receives 4 million won per month from March 1999 on condition that he worked for 4 days (monthly, chemical, chemical, or gold) on condition that he worked for 4 days per week on condition that he was employed. On May 12, 1999, Co-Defendant 1 was paid 500,000 won per month on condition that he established 4 days (monthly, chemical, chemical, or gold) on condition that he was employed for 4 million won per week on condition that he was employed as a mental doctor in charge of the above internal medicine. On the other hand, Co-defendant 1 of the first instance court established Ma-dong with Defendant 1's license on May 12, 199, and Defendant 1 provided medical treatment in his name against the above internal spirit and provided medical treatment under the above 1st instance court's name, and even if there was no patient with this, Defendant 1 and his own own own own own name.

Nevertheless, as seen above, the court below determined that Co-Defendant 1 did not constitute double establishment of a medical institution on the ground that Co-Defendant 1 employed a disqualified person and did not perform the duty of treatment. In so doing, the court below erred by misapprehending the legal principles on Article 30 (2) of the Medical Service Act, which affected the conclusion of the judgment.

(3) Defendant 2’s violation of the Medical Service Act

According to the records, Defendant 2 knew that he reported the establishment of the Red Gambling Council under his name on the condition that he will treat in his own daily, and there is no evidence to prove that Co-Defendant 2 committed a medical act in the Red Gambling Council established in the name of Defendant 2 on the record.

Thus, Co-defendant 2 of the first instance court is merely a part of the operation of the above hospital, such as obtaining profits from the business of Red Gambling established in the name of Defendant 2, and cannot be deemed as a case of overlapping the establishment of a medical institution contrary to the above provisions of the Medical Service Act. Thus, it is just in its conclusion that the court below acquitted Defendant 2 on the violation of the Medical Service Act, and there is no error of law such as misunderstanding of the legal principles as to the prohibition of overlapping the establishment

2. Judgment on Defendant 1’s grounds of appeal

In full view of the evidence in its reasoning, the court below acknowledged the facts as stated in its reasoning, such as the fact that Defendant 1 provided a mental therapy at the request of co-defendant of the court of first instance, even though it did not recognize that Defendant 1 conspired with the co-defendant of the court of first instance to commit a crime of defraudation of medical expenses, the court below found Defendant 1 guilty of aiding and abetting the criminal act of defraudation of medical expenses, which is the principal offender, even though it is not recognized that Defendant 1 committed a crime of defraudation of medical expenses. The court below's above recognition and determination are acceptable according to the records, and there is no error of law such as misunderstanding of facts and misunderstanding of legal principles as to accessories due to a violation of the rules of evidence that affected the conclusion of the judgment, as alleged in

3. If so, the part of the judgment of the court below as to Defendant 1's acquittal should be reversed, and the appeal against Defendant 1's guilty portion is without merit. However, since each crime which the court below found Defendant 1 guilty and the crime which found Defendant 1 not guilty as seen above are concurrent crimes under the former part of Article 37 of the Criminal Act, the part of the judgment of the court below as to Defendant 1's acquittal should also be reversed together with the part as seen above.

4. Therefore, the part of the judgment of the court below against Defendant 1 is reversed, and that part of the case is remanded to the court below. The prosecutor's appeal against Defendant 2 is dismissed. It is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)