[1] Standard for determining whether the act of establishing a medical institution by an agreement between a non-medical person and a medical person on his/her job constitutes “the act of establishing a non-medical institution” prohibited under the former Medical Service Act

[2] Whether a medical person constitutes a co-principal in violation of Article 87(1)2 and Article 33(2) of the former Medical Service Act in a case where a non-medical person conspired to establish a medical institution and processed it (affirmative)

[1] Whether the act of establishing a medical institution by an unincorporated general person (hereinafter “non-medical person”) and a medical person under an agreement on his/her business, etc. constitutes the act of establishing a non-medical institution prohibited by the former Medical Service Act (amended by Act No. 10565, Apr. 7, 2011; hereinafter “Medical Service Act”) ought to be determined by comprehensively taking into account the content and form of business relationship, the degree of actual participation in the establishment of a medical institution, the type of operation of a medical institution, etc. Accordingly, the determination of who was led to the process of establishing and operating a medical institution should be made. Accordingly, if only formally is the most formally legitimate establishment of a medical institution, and practically it is determined that a non-medical person established and operated a medical institution led by non-medical person, it is in violation of the Medical Service Act.

[2] If a medical person conspireds to establish a medical institution by an ordinary citizen who is not qualified as a medical personnel and processes it, it constitutes a co-principal of a violation of Article 87(1)2 and Article 33(2) of the former Medical Service Act (amended by Act No. 10565, Apr. 7, 201).

[1] Articles 33(2) and 87(1)2 of the former Medical Service Act (Amended by Act No. 10565, Apr. 7, 201) / [2] Article 30 of the Criminal Act; Articles 33(2) and 87(1)2 of the former Medical Service Act (Amended by Act No. 10565, Apr. 7, 201)

[2] Supreme Court Decision 2001Do2015 decided Nov. 30, 2001 (Gong2002Sang, 238)

Defendant 1 and one other

Defendants

Law Firm (LLC) LLC et al.

Seoul High Court Decision 2016No781 decided December 15, 2016

All appeals are dismissed.

The grounds of appeal are examined.

1. Whether the Defendants violated the Medical Service Act

A. An act of establishing a medical institution prohibited under Articles 33(2) and 87(1)2 of the former Medical Service Act (amended by Act No. 10565, Apr. 7, 201; hereinafter “Medical Service Act”) means that a general person who is not qualified as a medical personnel (hereinafter “non-medical person”) treats the relevant medical institution as a leading person, such as recruitment and management of facilities and human resources, reporting on establishment, implementation of medical business, raising of necessary funds, and reversion of the operational performance of the medical institution. It constitutes an act of establishing and operating a medical institution by a non-medical person who already established a non-medical person, including taking over medical facilities and medical personnel, and controlling and managing the former medical institution through the procedure for change of the name of the founder (see, e.g., Supreme Court Decision 2009Do2629, Oct. 27, 2011).

Meanwhile, whether non-medical persons and medical persons constitute the act of establishing a medical institution under the Medical Service Act by entering into an agreement on business, etc. should be determined by comprehensively taking into account the content and mode of business relationship, the degree of actual participation in the establishment of a medical institution, the types of operation of a medical institution, etc. Accordingly, it is reasonable to deem that the act of establishing a medical institution violates the Medical Service Act in a case where it is deemed that a non-medical person, who is not a medical person, established and operated a medical institution, can be evaluated as having led to the establishment and operation of a medical institution only in the form of a legitimate medical institution.

In addition, if a non-medical person conspired to establish a medical institution and process it, it constitutes a co-principal in violation of Article 87(1)2 and Article 33(2) of the Medical Service Act (see Supreme Court Decision 2001Do2015, Nov. 30, 2001, etc.).

B. For the following reasons, the lower court acknowledged the Defendants’ violation of the Medical Service Act among the facts charged in the instant case. (1) Defendant 1, a non-medical person, was employed by Defendant 2, who was an employee of the instant ○ Hospital, not merely worked as an employee of the instant ○ Hospital, but was in charge of the acquisition, establishment, and operation of the ○ Hospital, at least in the position of Defendant 2 and its partner. (2) Defendant 2 conspireded Defendant 1, a non-medical person,

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted by the first instance court, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the establishment of a crime of violating the Medical Service Act due to the establishment

2. Whether Defendant 2 violated the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

The lower court acknowledged Defendant 2’s violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) among the facts charged in the instant case. In other words, the lower court, in collusion with Defendant 1, by deceiving Defendant 2 as if the ○ Hospital established by Defendant 2 in violation of Article 33(2) of the Medical Service Act was a medical care institution lawfully established under the Medical Service Act, claiming expenses for benefits from the National Health Insurance Corporation, by deceiving Defendant 1,630,560,050 won from local governments, and by deceiving Defendant 2 from local governments.

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court and the first instance court, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending

3. Whether the Defendants violated the Act on Special Measures for the Control of Public Health Crimes (Unlawful Medical Person)

Of the facts charged in the instant case against the Defendants, the lower court acknowledged the Defendants’ violation of the Act on Special Measures for the Control of Public Health Crimes related to Nonindicted 1 (hereinafter “Public Health Crimes Control Act”). In other words, the Defendants, in collusion with Nonindicted 1, who was not a doctor, engaged in the business of unlicensed medical practice for profit by having Nonindicted 1, who was not a doctor, operate the skin center within the ○○ Hospital, operate it.

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court and the first instance court, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the establishment of joint principal

4. Whether Defendant 2 violated the Act on the Control of Public Health Crimes (Unlawful Medical Person)

The lower court acknowledged Defendant 2’s violation of the Health Crimes Control Act (Unlawful Medical Business Operator) with respect to Nonindicted 2 among the facts charged in the instant case as to Defendant 2. In other words, Defendant 2 conspired with Defendant 1, who was employed by Defendant 2 as an employee of Nonindicted Party 2, and had Defendant 2 perform the surgery related to the skin and bronon for the purpose of making profits.

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court and the first instance court, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the establishment of joint principal

5. Conclusion

The Defendants’ final appeals are all dismissed as they are without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)