Whether an act of a non-medical person who employs a qualified medical person and reports the establishment of a medical institution in his/her name violates the main sentence of Article 33(2) of the Medical Service Act (affirmative), and whether the same legal principle applies to a case where the establishment of a medical institution is reported in the name of a consumer cooperative established under the Consumer Cooperatives Act, which explicitly permits medical business

It is reasonable to deem that an act of an ordinary person who is not qualified for medical personnel (hereinafter referred to as "non-medical person") by investing necessary funds in a facility and employing a qualified medical person and filing a report on the establishment of a medical institution under the name of the medical person is the most formally only the act of establishing a legitimate medical institution, and practically violates the main sentence of Article 33(2) of the Medical Service Act, as a non-medical person established a medical institution. It is not reasonable to deem that the report on establishment was made under the name of a medical person or

In addition, this legal doctrine also applies to a case where a medical institution is established and reported in the name of a consumer cooperative (hereinafter “consumer”) established under the Consumer Cooperatives Act explicitly permitted medical business (hereinafter “Consumer Cooperatives Act”). The purpose of the Consumer Cooperatives Act is to promote consumers’ independent, independent, and autonomous activities of the cooperative, thereby contributing to the improvement of their members’ lives as well as the improvement of the welfare and living culture of the people. As to a business that a biological cooperative established to achieve such purpose, Article 45(1)4 of the Act provides for “public health and medical business for the improvement of members’ health” and Article 11(3) of the Act provides that “this Act shall take precedence over the relevant Acts relating to public health and medical business of cooperatives, etc.” As such, the Act first applies to health and medical business of the cooperative, etc. to the public health and medical business of the cooperative, rather than to ensure that the Act first applies to the public health and medical business of the cooperative, as the case where it conflicts with the Act to attain the objectives of its formal health and medical cooperative business.

Articles 33(2) and 87(1)2 of the Medical Service Act, Article 1, 11(3), and 45(1)4 of the Consumer Cooperatives Act

Supreme Court Decision 81Do3227 Decided December 14, 1982 (Gong1983, 314) Supreme Court Decision 2009Do2629 Decided October 27, 201 (Gong2011Ha, 2478)

Defendant 1 and 13 others

Defendants

Attorneys Im Chang-chul et al.

Cheongju District Court Decision 2012No506 decided November 9, 2012

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the grounds of appeal by the remaining Defendants except Defendant 1, 8, and 11

A. As to the misapprehension of the legal principles on the establishment of medical institutions by the above Defendants or the assertion of mistake of facts

(1) The main sentence of Article 33(2) of the Medical Service Act provides that "no person, other than a person falling under any of the following subparagraphs, may establish a medical institution." The person who can establish a medical institution under any of the following subparagraphs shall be qualified as a medical doctor, dentist, oriental medical doctor, midwife, State or local government, corporation established for the purpose of rendering medical services, non-profit corporation established under the Civil Act or any special Act, quasi-government organization established under the Act on the Management of Public Institutions, local medical center established under the Act on the Establishment and Operation of Local Medical Centers, or the Korea Veterans Welfare and Healthcare Corporation established under the Korea Veterans Welfare and Healthcare Corporation Act." The purpose of the above provision is to protect and promote the health of the people by strictly restricting the medical person who has medical expertise or public nature, or any other person who establishes a medical institution by prohibiting the establishment of a medical institution (see Supreme Court Decision 2004Do3875, Sept. 24, 2004).

Therefore, it is reasonable to view that the act of an ordinary person who is not qualified for medical personnel (hereinafter “non-medical person”) with facilities by investing necessary funds in the name of a qualified medical person and reporting the establishment of a medical institution under the name of the medical person is presumed to be a lawful establishment of a medical institution only formally, and it violates the main sentence of Article 33(2) of the Medical Service Act as it actually established by a non-medical person. It is not reasonable to deem that the report on establishment was made under the name of a medical person or the report on establishment was directly conducted by a medical person who is the name of a medical person. (See Supreme Court Decision 81Do327, Dec. 14,

In addition, this legal doctrine also applies to cases where a medical institution establishment is established and reported in the name of a consumer cooperative (hereinafter “consumer”) established under the Consumer Cooperatives Act explicitly permitted medical business (hereinafter “Consumer Cooperatives Act”). The purpose of the Consumer Cooperatives Act is to promote consumer’s independent, self-reliance, and autonomous activities of the cooperative, thereby contributing to the improvement of consumer’s lives as well as the improvement of the welfare and living culture of the people. As to the projects that can be carried out by the biological cooperative established to achieve such purpose, Article 45(1)4 of the Act provides that “public health and medical business for the improvement of health of union members” and Article 11(3) of the Act provides that “this Act shall take precedence over the relevant Acts in relation to public health and medical business of the cooperative, etc.” As such, the Act first applies to the public health and medical business of the cooperative, not to the case where the Health and Medical Cooperatives Act grants permission to the health and medical business of the cooperative, but to the case where it conflicts with the relevant Acts such as the Medical Service Act.

(2) On the grounds indicated in its reasoning, the lower court determined that each of the instant medical institutions was established under the name of each of the relevant medical cooperative associations on the sole basis of its own cost and responsibility, and rejected the allegation in the grounds of appeal for erroneous determination of facts, on the ground that it was sufficiently recognized that each of the instant medical institutions was established under the name of each of the relevant medical cooperative associations.

The ground of appeal disputing the lower court’s fact-finding is merely disputing the lower court’s determination on the selection and probative value of evidence belonging to the free judgment of the fact-finding court. In light of the evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

(3) In addition, the lower court rejected the allegation in the grounds of appeal by misapprehending the legal doctrine that argues that the above Defendants’ act constitutes the establishment of medical institutions by non-medical persons prohibited under Article 33(2) of the Medical Service Act.

The judgment of the court below seems to be based on the above legal principles, and there is no error in the misapprehension of legal principles as to the provisions of the Biological Cooperation Act, the establishment of medical institutions under the Medical Service Act, and the principle of no punishment without law, etc.

B. As to the remaining grounds of appeal by Defendant 3 and 6

“Act which does not contravene social norms” under Article 20 of the Criminal Act refers to an act permissible in light of the overall spirit of legal order, or the social ethics or social norms surrounding the act. Whether certain act is a legitimate act that does not contravene social norms and thus, the illegality of the act should be avoided, based on specific circumstances, on an individual basis, based on the following: (a) the justification of the motive or purpose of the act; (b) the reasonableness of the means or method of the act; (c) the balance between the protected interests and infringed interests; and (d) supplementary nature that there is no other means or method other than the act (see Supreme Court Decision 2003Do300, Sept. 26, 2003).

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine as to legitimate acts, contrary to what is alleged in the grounds of appeal, by misapprehending the legal doctrine on the establishment of the medical institution in this case by the said Defendants.

C. As to the remaining grounds of appeal by Defendant 4, 5, 7, and 12

For the reasons indicated in its holding, the lower court determined that the establishment of a medical institution constitutes a violation of the Medical Service Act by establishing the medical institution, and thus, it does not affect its punishment, and rejected the Defendants’ allegation in the grounds of appeal regarding the misapprehension of legal doctrine.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine, the lower court did not err in its judgment as alleged in the grounds of appeal.

D. As to Defendant 14’s remaining grounds of appeal

Defendant 14’s second supplementary statement of grounds of appeal was submitted after the deadline for submitting the second supplementary statement, and the grounds alleged in such written statement of grounds of appeal are not legitimate grounds of appeal.

In addition, the above defendant is one of the above reasons under the premise that the court below erred in finding facts on the premise that the court below made the appearance of the above defendant as if it established a medical institution of the non-indicted 1's medical cooperative. However, the court below held that the above defendant made the appearance of the non-indicted 2's medical cooperative as if it established a medical institution, and it was evident in the records that it was recognized that ○○○ Council was established by using the name of the non-indicted 2's medical cooperative. Thus, the above argument is erroneous and acceptable.

E. As to Defendant 2’s remaining grounds of appeal

According to Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed, an appeal on the grounds of unfair sentencing is permitted. Thus, in this case where Defendant 2 was sentenced to a minor punishment, the argument that the amount of punishment is unreasonable is not legitimate grounds for appeal

2. As to Defendant 1’s ground of appeal

According to Article 383 subparag. 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed, an appeal on the grounds of unfair sentencing is permitted. As such, in this case where Defendant 1 was sentenced to a fine, the argument that the amount of punishment is unreasonable is not a

In addition, other grounds for appeal by Defendant 1 do not constitute legitimate grounds for appeal under Article 383 of the Criminal Procedure Act.

3. As to Defendant 8’s appeal

The court of final appeal may investigate and determine only within the extent of filing an objection based on the grounds of final appeal. As such, the grounds of final appeal clearly state specific grounds for appeal as to what points of the judgment below is in violation of the law and regulations. Defendant 8’s grounds of final appeal, which simply states that “I will file an appeal on the grounds of misunderstanding of legal principles and misunderstanding of facts,” did not state any specific grounds as to what is erroneous and unreasonable in the application of any statute, and which evidence selection has violated the rules of evidence, and thus, it cannot be deemed that legitimate grounds of final appeal have been submitted (see, e.g., Supreme Court Decisions 9Do513, Apr. 21, 200; 2008Do10177, Sept. 10, 2009).

4. As to Defendant 11’s ground of appeal

The main text of Article 33(2) of the Medical Service Act provides for the qualification requirements for the founders of medical institutions with a view to promoting the health of the people by controlling the quality of medical care and establishing a sound order in medical care, and preventing in advance risks to national health that may arise when a non-medical person or a profit-making corporation establishes a medical institution for the purpose of profit-making. Thus, the legislative decision that limits the freedom to choose occupation that the non-medical person or profit-making corporation established and operated a medical institution under the above provision of the Act cannot be deemed to have exceeded the constitutional limits by clearly deviating from legislative discretion (see Constitutional Court en banc Decision 2001Hun-Ba87, Mar. 31, 2005). Therefore, the allegation in the grounds of appeal

5. Conclusion

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

Justices Shin Young-chul (Presiding Justice)