[1] Whether an act of employing a person qualified as a medical person by investing necessary funds in the general public who is not qualified as a medical personnel, and filing a report on the establishment of a medical institution under the name of the person qualified as a medical personnel violates the main sentence of Article 33(2) of the Medical Service Act (affirmative), and whether the same applies to the case where the report on establishment was made under the name of a medical person or the medical person who is the reporter of establishment directly conducts medical acts (affirmative)

[2] The method of proving that the defendant denies the intention, which is a subjective element of the elements of crime

[1] Articles 33(2) and 87(1)2 of the Medical Service Act, Articles 45(1)4 and 46-2 of the Consumer Cooperatives Act / [2] Articles 13 and 347 of the Criminal Act, Article 308 of the Criminal Procedure Act

[1] Supreme Court Decision 81Do3227 Decided December 14, 1982 (Gong1983, 314), Supreme Court Decision 2012Do14360 Decided August 20, 2014 (Gong2014Ha, 1919) / [2] Supreme Court Decision 2016Do15470 Decided January 12, 2017 (Gong2017Sang, 427)

Defendant 1 and seven others

Defendants

Law Firm Enhancement, Attorneys Fishing Incarceration et al.

Gwangju High Court Decision 2016No342 decided January 19, 2017

All appeals are dismissed.

The grounds of appeal are examined.

1. The Defendants’ violation of the Medical Service Act

A. Articles 33(2) and 87(1)2 of the Medical Service Act prohibit a person, who is not qualified to establish a medical institution, from establishing a medical institution, by restricting the qualification of a medical institution founder’s doctor, herb doctor, etc., and imposes criminal punishment upon such person. This is to prevent in advance risks to national health, which may arise when establishing a medical institution for the purpose of establishing sound medical order and profit-making by strictly restricting the qualification of a medical person with expertise in establishing a medical institution, or a person with public character. The act of employing an unqualified general person (hereinafter “non-medical person”) with facilities and reporting the establishment of a medical institution in the name of a medical institution is the most lawful establishment of a medical institution only formally, but it is reasonable to deem that the establishment of a non-medical person is in violation of the main sentence of Article 33(2) of the Medical Service Act. The same applies to the case where a report on establishment was made under the name of a medical person or directly performed by a medical person who is the reporter under the name of a medical person (see Supreme Court Decision 28Do27, Dec. 27, 19, 1982).

This legal doctrine applies to a case where the establishment of a medical institution is reported in the name of a consumer cooperative (hereinafter “consumer cooperative”) established under the Consumer Cooperatives Act (hereinafter “Consumer Cooperatives”) that explicitly permits medical business (see Supreme Court Decision 2012Do14360, Aug. 20, 2014, etc.).

B. The lower court found the Defendants guilty of this part of the facts charged on the following grounds. (1) Comprehensively taking account of the process of establishing each of the instant medical cooperation associations and the process of operating each of the instant convalescent hospitals, Defendant 1, a non-medical person, was aware of having lawfully established each of the instant convalescent hospitals in the name of each of the medical cooperation associations, but actually, Defendant 1 opened each of the instant convalescent hospitals using the name of each of the medical cooperation associations. (2) Such act constitutes the establishment of non-medical persons prohibited under Article 33(2) of the Medical Service Act. (3) The remaining Defendants, including Defendant 2, etc., were involved in the establishment of medical institutions in collusion with Defendant 1, and all of the Defendants’ intent are recognized.

C. The allegation in the grounds of appeal disputing the establishment process of each of the instant medical cooperative associations or the operation process of each of the instant convalescent hospitals is nothing more than misunderstanding the lower court’s determination on the admission and probative value of evidence, which belongs to the free judgment of the fact-finding court. In addition, examining the reasoning of the lower judgment in light of the aforementioned legal principles and the evidence duly admitted, the lower court is justifiable to have determined that the Defendants’ act constitutes a co-principal of violating the Medical Service Act due to the establishment of non-medical personnel. In so doing, 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 exceeding the bounds of the principle of free evaluation of evidence

2. The defendants' violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

A. In a case where a criminal defendant denies the criminal intent, which is a subjective element of a constituent element of a crime, the criminal intent itself cannot be objectively proved, and therefore, it is inevitable to prove the criminal intent by means of proving indirect or circumstantial facts relevant to the criminal intent in light of the nature of an object. Determination of what constitutes an indirect or circumstantial fact ought to be based on normal empirical rule in a way that reasonably determines the connection of the fact by using a close observation or analysis power based on the normal empirical rule (see, e.g., Supreme Court Decision 2016Do15470, Jan. 12, 2017).

B. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court is justifiable to have determined that the Defendants intentionally committed deception by receiving medical care benefit costs from the victim National Health Insurance Corporation as if each of the instant convalescent hospitals was legally established under the Medical Service Act. In so doing, the lower court did not err by misapprehending the legal doctrine on the intent of fraud.

3. Defendant 1’s violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)

A. The lower court found Defendant 1 guilty of this part of the charges against the above Defendant on the ground that Defendant 1’s embezzlementd by arbitrarily using KRW 2,898,953,149 as a sum of KRW 2,308,953,149, while Defendant 1, as a director of the ○○○○○ Medical Cooperation Association, deposited KRW 3,00,000 in the account in the name of the ○○○○○○○○ Medical Cooperation Association, for the purpose of business keeping KRW 3,30,00,000,000 in total, such as repayment of the Defendant’s personal loan obligation of KRW 2,308,953,149. The lower court rejected Defendant 1’s assertion that “the lower court paid

B. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the said lower court’s determination is justifiable. In so doing, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on embezzlement, lease agreement, and the Commercial Building Lease Protection Act.

4. Conclusion

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

Justices Park Poe-young (Presiding Justice)