[1] Meaning of “the act of establishing a non-medical person’s medical institution” prohibited by Article 30(2) of the former Medical Service Act, and whether it constitutes a case where a non-medical person can be deemed that the former founder’s act of establishing and operating a medical institution was committed with a new establishment and operation that is severed from that

[2] In a case where a non-medical person was prosecuted for violating the former Medical Service Act by newly establishing and operating a hospital established by her husband Gap, who is a medical person, the case holding that the court below erred by misapprehending the legal principles as to the establishment of a non-medical person by establishing a medical institution by excluding A from a certain point of time and by controlling and managing a hospital, and thereby violating Articles 66 subparagraph 3 and 30 (2) of the same Act

[1] An act of establishing a medical institution prohibited by Article 30(2) and Article 66 subparag. 3 of the former Medical Service Act (amended by Act No. 8203, Jan. 3, 2007; hereinafter “Medical Service Act”) refers to the act of a non-medical person to supplement and manage facilities and human resources, report on establishment, conduct of medical business, raise necessary funds, and transfer of management performance of the medical institution. Therefore, an act of establishing a medical institution and reporting the establishment of a medical institution under the name of a qualified medical person is merely the act of establishing a medical institution through investment of necessary funds by a general public without qualification and employing qualified medical personnel under the name of the medical institution, and it cannot be deemed that a person who is neither a medical person nor a medical person has established a medical institution under the name of a medical person, or a person who has reported the establishment thereof directly performed medical acts. Meanwhile, in light of the purport of establishing and operating the new medical institution and the purport of establishing and operating the medical institution under the former Medical Service Act as well as the act of establishing and operating the medical institution under its name.

[2] In a case where a non-medical person was indicted for violation of the former Medical Service Act (amended by Act No. 8203, Jan. 3, 2007; hereinafter “Medical Service Act”) on the ground that the Defendant newly established and operated a hospital established by her husband Gap, a medical person, and was charged with the violation of the former Medical Service Act, the case holding that the judgment below erred by misapprehending the legal principles as to “non-medical person established and managed a medical institution” since the Defendant violated Articles 66 subparag. 3 and 30(2) of the Medical Service Act by establishing and managing the medical institution from a certain point of time, even if the Defendant took advantage of the profits while continuing the operation of the hospital Gap, which was established and operated by her husband Gap; and on the contrary, in light of all the circumstances, the relationship between the Defendant and the Defendant, and the process of various lawsuits between the two parties, etc., the above measures by the Defendant were merely a unilateral claim and exercise of the right to divorce due to the failure of marriage.

[1] Article 30(2), (3), (6) (see current Article 33(2), (3), and (5)), Article 66 subparag. 3 (see current Article 87(1)2) of the former Medical Service Act (Amended by Act No. 8203, Jan. 3, 2007); Article 22-2, Article 22-3 (see current Articles 25 and 26) of the former Enforcement Rule of the Medical Service Act (Amended by Act No. 11, Apr. 11, 2008); Article 30(2) (see current Article 33(2) and Article 66 subparag. 3 (see current Article 87(1)2) of the former Medical Service Act (Amended by Act No. 8203, Jan. 3, 2007) / [2] Article 30(2) of the former Medical Service Act (Amended by Act No. 8203, Jan. 3, 2007);

[1] Supreme Court Decision 81Do3227 delivered on December 14, 1982 (Gong1983, 314) Supreme Court Decision 87Do1926 delivered on October 26, 1987 (Gong1987, 1835) Supreme Court Decision 95Do2154 delivered on December 12, 1995 (Gong196Sang, 455) Supreme Court Decision 2008Do7388 delivered on November 13, 2008

Defendant 1 and two others

Defendants

Law Firm Mau, Attorney Lee Dong-sung

Seoul Northern District Court Decision 2008No890 Decided March 19, 2009

The judgment of the court below is reversed, and the case is remanded to the Seoul Northern District Court Panel Division.

We examine the grounds of appeal.

1. As to Defendant 1

A. Although penal provisions shall be strictly interpreted and applied in accordance with the language and text, and they shall not be analogical interpretation disadvantageous to the defendant without permission. However, in the interpretation of penal provisions, the teleological interpretation in consideration of the legislative intent and purpose, legislative history, etc. of the relevant Acts shall not be excluded unless it goes beyond the ordinary meaning of the text and text of the law (see, e.g., Supreme Court Decisions 2005Do6525, May 12, 2006; 2007Do2162, Jun. 14, 2007).

Article 30(2) of the former Medical Service Act (amended by Act No. 8203, Jan. 3, 2007; hereinafter “Medical Service Act”) provides that a person who violates Article 66 subparag. 3 of the same Act shall be punished. The legislative intent of the aforementioned provision is to prevent such person from reporting the establishment of a medical institution in the name of a medical person with medical expertise or a person with public nature in establishing a medical institution for the purpose of establishing a sound medical order and to prevent risks to national health (see Supreme Court Decision 2004Do7245, Feb. 25, 2005). In light of the aforementioned provision’s legislative purpose, the establishment of a medical institution prohibited by the foregoing provision constitutes an act of establishing and operating a medical institution under the name of a person who established and manages the medical institution under the name of a new medical person, not an act of establishing and operating the medical institution under the name of a person who established and operated the medical institution, not an act of establishing and operating the medical institution under the name of a new medical person.

B. After comprehensively taking account of the adopted evidence, the lower court determined that Defendant 1 established a medical institution by excluding Nonindicted 1 from August 2005, and by controlling and managing the instant hospital.

① On March 23, 201, Defendant 1 filed a lawsuit against the above non-indicted 2 with his husband, and then employed Defendant 2, etc., and transferred the above hospital's business name to the defendant 2 with the agreement of the Ministry of Health and Welfare on November 29, 2004. ② After November 29, the above hospital's revenues were deposited into the above non-indicted 2's account with the non-indicted 2's non-indicted 2's non-indicted 2's non-indicted 1's non-indicted 6's non-indicted 2's non-indicted 1's non-indicted 6's non-indicted 1's non-indicted 2's non-indicted 6's non-indicted 2's non-indicted 1's non-indicted 6's non-indicted 2's non-indicted 9's non-indicted 2's non-indicted 1's non-indicted 6's non-indicted 2's non-indicted 1's non-indicted 2's non-indicted 2's non-indicted 2'

C. However, in light of the aforementioned legal principles and records, we cannot agree with the judgment of the court below that Defendant 1 established a medical institution by excluding Nonindicted 1 from August 2005, and by controlling and managing the instant hospital.

In light of the records to the same purport as the facts acknowledged by the court below, even if the hospital of this case changed its name to Defendant 2 on November 29, 2004, the hospital of this case had already been in charge of the financial and operation of the hospital, and had been managed by Defendant 1 under the delegation of Nonindicted 1, who is the actual founder and operator of the hospital, around August 2005, since the marriage did not occur, Defendant 1 maintained the same state after August 2005. However, Defendant 1 unilaterally demanded divorce from Nonindicted 1 and unilaterally suspended the payment of operating profits, and Defendant 2 was also an employment doctor who has no actual authority to establish and operate the above hospital, and was in cooperation with Defendant 1’s assertion. On August 2005, there was no procedure ordinarily necessary for the acquisition of the hospital of this case. The medical personnel and medical facilities of the above hospital of this case had been employed by Nonindicted 1, who had no legal authority to establish and operate the hospital of this case, and there was no other new legal relationship between Defendant 1 and the above right holder.

Under the above circumstances, even if Defendant 1 excluded Nonindicted Party 1 from around August 2005 and took exclusive charge of the proceeds therefrom while continuing the operation of the instant hospital, it cannot be deemed that the initial medical facilities and medical personnel of the instant hospital established and operated by Nonindicted Party 1 were taken over or newly equipped by the said Defendant, and changed the founder to establish a new medical institution and actually establish a new medical institution. Rather, in light of the aforementioned circumstances and the relationship between Defendant 1 and Nonindicted Party 1 and the process of various lawsuits revealed in the record, it is reasonable to view that the above measures by Defendant 1 were merely the assertion and exercise of a unilateral right as to the accrual of operating proceeds in mind of divorce due to the failure of marriage under the former conditions of establishment and operation, and that the disputes arising therefrom were continued for a certain period.

D. Nevertheless, the judgment of the court below that Defendant 1 violated Article 66 subparag. 3 and 30(2) of the Medical Service Act by controlling and managing the instant hospital from around August 2005, by establishing a medical institution. In so doing, the judgment below erred by misapprehending the legal principles on “establishment of medical institutions” by non-medical persons, which affected the conclusion of the judgment. The purport of the appeal pointing this out is with merit.

2. As to the defendant 2 and 3

Defendant 2 and Defendant 3 did not submit the appellate brief even until the time the appellate brief was not timely filed. The appellate brief and the appellate brief submitted by the defense counsel of the above Defendants did not contain specific grounds for appeal. However, in this case, the judgment of the court below is reversed for Defendant 1’s benefit and the reasons for reversal are common to Defendant 2 and Defendant 3, who did not submit the appellate brief. Thus, the judgment of the court below is reversed in accordance with Article 392 of the Criminal Procedure Act.

3. Conclusion

Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)