A. Whether Article 41(3) of the Medical Service Act violates the principle of equality under the Constitution

(b) Whether the permission of the Minister of Health and Welfare under Article 41 (3) of the Medical Service Act is necessary even in the case of a successful bid where a collateral security is established with the permission of the Minister of Health and Welfare on real estate subject to a compulsory auction and the proceeds of a successful bid are distributed to a mortgagee;

A. The purpose of Article 41(3) of the Medical Service Act is to ensure the proper development of medical care and to protect national health by preventing a medical corporation from unfairly reducing its property and by securing the sound development of the medical corporation with property necessary for its management at all times. Therefore, the above provision is reasonable in that sense, and thus, it cannot be said that it violates the principle of equality under the Constitution.

B. The permission of the Minister of Health and Welfare pursuant to the provision of Article 41 (3) of the Medical Service Act shall be deemed to be effective in the case of a compulsory auction. However, in the case of a compulsory auction, a collateral security was established with the permission of the Minister of Health and Welfare for the real estate subject to compulsory auction. If the successful bid price was fully distributed to the above bank and the collateral security was extinguished, it would be without any reason to distinguish it from the execution of the voluntary auction by the above bank. In the case of a compulsory auction with the permission of the Minister of Health and Welfare for the provision of collateral, it would not be interpreted that a separate permission is not required in the case of the above auction.

(b)Article 41(3) of the Medical Service Act;

B. Supreme Court Decision 91Da41996 Decided February 8, 1966 (Gong192, 1579) Decided April 14, 1992

Medical Corporation, Attorneys Park Hun-sik et al., Counsel for the defendant-appellant-appellant

Defendant 1 and five defendants, et al., Counsel for the plaintiff-appellant-appellee)

Daegu High Court Decision 92Na2296 delivered on November 26, 1992

The judgment below is reversed, and the case is remanded to the Daegu High Court.

The Defendants’ grounds of appeal (the grounds of further appeal by Defendants 1 and 2 are to the extent of supplement in case of the grounds of appeal)

According to the reasoning of the judgment below, the court below acknowledged that the non-party Dongdong Pharmaceutical Co., Ltd. applied for a compulsory auction on the real estate of this case owned by the plaintiff based on the original copy of the judgment with executory power against the plaintiff, and the auction procedure was conducted, and the registration of ownership transfer was completed upon the successful bid by the defendant 1 and the non-party of the judgment below. The registration of establishment of a mortgage with the defendant 2, the defendant 3, the defendant 4, the defendant 5, and the defendant 6 was completed, and the above real estate was a medical corporation, but the above real estate was acquired by the successful bid, but without the permission of the Minister of Health and Welfare under Article 41 (3) of the Medical Service Act, the disposal of the property made without the permission of the Minister of Health and Welfare is null and void, and the above registration of transfer of ownership and the registration of establishment of each of the above mortgages on the basis of the above invalid bid

Furthermore, the court below rejected the plaintiff's assertion that the auction price of the real estate of this case was valid even if the defendant 1 and the non-party of the court below did not obtain the permission of the Minister of Health and Welfare in the case of successful bid since the plaintiff offered the real estate of this case to the non-party 1 bank as collateral and completed the registration of establishment of mortgage with the permission of the Minister of Health and Welfare, and actually, the auction price of the above real estate was preferentially paid to the above non-party 1 and the non-party of the court below did not obtain the permission of the Minister of Health and Welfare in the case of successful bid, as alleged above. However, since the above compulsory auction constitutes the disposal of the property that is entirely separate from the above plaintiff's act of offering collateral, the permission of the Minister of Health and Welfare is required separately for this, and even if the above compulsory auction price was preferentially paid to the above non-party 1, the auction price of this case is not valid.

Article 41(3) of the Medical Service Act provides that when a medical corporation intends to dispose of its property or amend its articles of incorporation, the permission of the Minister of Health and Welfare shall be obtained. This provision aims to ensure the appropriateness of medical care and to protect national health by securing the sound development of the medical corporation by providing at all times any property necessary for its management through prevention of improper reduction of its property. Therefore, the above provision is reasonable in that sense. Accordingly, the permission of the Minister of Health and Welfare pursuant to the above provision shall not be deemed to be an effective requirement even in the case of compulsory sale by official auction. Thus, the opinion contrary thereto shall not be adopted.

However, at the time of the compulsory auction of this case, the above real estate was established as a collateral security with the permission of the Minister of Health and Welfare, and it is evident in the record that all the successful bid price was distributed to the above bank and the collateral security was extinguished. Thus, it is not reasonable to distinguish it from the execution of voluntary auction by the execution of the collateral security by the Han-il Bank. In this case, when the permission of the Minister of Health and Welfare is obtained with respect to the provision of collateral, it is not interpreted that the permission should be again required at the time of auction by the execution of the mortgage (refer to the party members 65Ma1166, Feb. 8, 196).

In this respect, the judgment of the court below is erroneous in the misunderstanding of legal principles as to Article 41 (3) of the Medical Service Act. There is reason to discuss.

It is so decided as per Disposition by the assent of all participating Justices on the bench that the judgment of the court below is reversed and the case is remanded to the court below.

Justices Yoon Young-young (Presiding Justice)