[1] The validity of a business agreement under which a person, other than a doctor or a doctor, concurrently establishes and operates a medical institution by investing property, and the operation, profit, loss, etc. of a medical institution belongs to a person who is not a medical practitioner (negative), and the subject to whom benefits or property acquired in relation to the operation of a medical institution

[2] The case holding that in case where Gap, a doctor Gap, concluded a partnership agreement with Eul et al. to open and operate a hospital with Eul et al, and concluded a lease agreement with Byung et al. on the building where the hospital is located, the lease agreement itself cannot be deemed null and void solely on the ground that Byung et al. knew of the purpose of the lease agreement, and the lease agreement itself cannot be deemed null and void because Eul et al. violated Article 33 (2) of the Medical Service Act, and it can be deemed that Eul waived all the rights of the hospital including the right of the lessee in the prior lawsuit filed against Eul et al., and Gap cannot seek the return of the lease deposit on the premise that

[1] Article 33(2) of the Medical Service Act, Article 103 of the Civil Act / [2] Article 33(2) of the Medical Service Act, Articles 618 and 741 of the Civil Act

[1] Supreme Court Decision 2014Da30568 Decided September 26, 2014

Plaintiff (Law Firm Woo, Attorneys Lee Bi-seok et al., Counsel for plaintiff-appellant)

Defendant 1 and one other (Attorney Ahn Young-young, Counsel for the defendant-appellant)

Seoul High Court Decision 2012Na79707 decided June 7, 2013

The part of the lower judgment against the Defendants is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. The lower court determined as follows.

On August 4, 2009, the Plaintiff and Nonparty 1, who are not doctors, concluded a partnership agreement with the Plaintiff to expand the existing facilities of ○○○○ Hospital (hereinafter “○○ Hospital”) and to establish a new hospital under the name of the Plaintiff, and concluded a partnership agreement to revise the above terms and conditions of the contract on October 6, 2009 (hereinafter “instant partnership agreement”). On August 13, 2009, the Plaintiff, via Nonparty 1, transferred the six and seven floors of the building in Jungdong-gu, Seoul ( Address omitted) in Seoul (hereinafter “the instant lease deposit”), KRW 20 million, monthly rent KRW 9.5 million, and the lease agreement was concluded between August 24, 2009 to the Defendants, with the purpose of returning the lease deposit amount to the Defendants, and thus, the said agreement was null and void, as long as the Defendants were aware of the legal grounds for the aforementioned lease deposit and delayed damages were returned to the Defendants.

2. However, it is difficult to accept the above determination by the court below for the following reasons.

A. A. A business agreement under which a person, other than a doctor or a doctor, concurrently establishes and operates a medical institution by investing property, and the operation of a medical institution and profit or loss, etc. accrue to a person who is not a medical person, is null and void in violation of Article 33(2) of the Medical Service Act, which is a mandatory law, and both profits or property acquired in connection with the operation of a medical institution, and obligations borne by him/her are reverted to an individual (see Supreme Court Decision 2014Da30568, Sept. 26,

B. According to the reasoning of the judgment below, the Plaintiff agreed to establish and operate a medical institution prohibited under Article 33(2) of the Medical Service Act with Nonparty 1, and then concluded the instant lease agreement with the Defendants on the building in which ○○ Hospital is located. It is clear that the Defendants are not the parties to the instant lease agreement. Therefore, even if the Plaintiff and Nonparty 1 concluded the instant lease agreement as a juristic act of a partnership with the Plaintiff and Nonparty 1, it shall be deemed that the said lease agreement belongs to the Plaintiff’s individual, and the said agreement itself cannot be deemed null and void solely on the ground that the Defendants knew the Plaintiff’s purpose of the lease agreement.

C. Nevertheless, solely based on the circumstances stated in its holding, the instant lease agreement is deemed null and void, and on such premise, the lower court determined that the Defendants should return the amount of KRW 100 million remitted from the Plaintiff as unjust enrichment, thereby misapprehending the legal doctrine on Article 33(2) of the Medical Service Act, thereby adversely affecting the

3. In addition, we examine whether the Plaintiff can seek the return of the lease deposit against the Defendants based on the instant lease agreement valid.

A. The reasoning of the lower judgment and the record reveal the following.

1) On August 4, 2009, the Plaintiff and Nonparty 1 entered into the instant business partnership agreement with ○○ Hospital on October 6, 2009, which was to run the business of operating ○○ Hospital. On December 2009, the Plaintiff and Nonparty 1 sent content-certified mail to the effect that the other party would terminate the said agreement by asserting that the other party breached a contractual obligation.

2) On March 3, 2010, without the Plaintiff’s consent, Nonparty 1 transferred to Nonparty 2 the goodwill, including all medical facilities of ○○ Hospital and claims for return of lease deposit (hereinafter “instant business transfer agreement”), and on the same day, the name holder of the hospital was changed to Nonparty 2.

3) The Plaintiff asserted against Nonparty 1 that the instant partnership agreement was terminated or dissolved by the Seoul Central District Court 2010Gahap63237, the Plaintiff filed a lawsuit against Nonparty 1 on the premise that the transfer price of KRW 500 million was reverted to Nonparty 1 under the instant business transfer agreement. The Seoul Central District Court partially accepted the Plaintiff’s claim on August 18, 201. On June 1, 2012, the Seoul Central District Court rendered a judgment that: (a) the amount to be returned by Nonparty 1 to the Plaintiff in relation to ○○○ Hospital was KRW 250,000,000; and (b) the amount to be returned to Nonparty 1 in relation to ○○ Hospital was KRW 67,398,069; and (c) Nonparty 1 paid the Plaintiff KRW 182,601,931, and damages for delay (the instant judgment became final and conclusive around 2012 or 217).

4) The Plaintiff filed a claim against Nonparty 2 for damages by asserting that Nonparty 2 infringed the Plaintiff’s right to lease or the right to operate the ○○ Hospital, or actively participated in the non-party 1’s voluntary disposal of the property of the partnership, but the first instance court of this case dismissed the Plaintiff’s claim, and this part of the judgment became final and conclusive because the Plaintiff did not appeal.

B. According to the above circumstances, the Plaintiff did not agree to the conclusion of the instant contract for the transfer of business as the person to whom the property belongs of the trade association, and thus, the said contract for the transfer of business is null and void, barring any special circumstances, the Plaintiff is deemed to have no effect on the Plaintiff, and the Plaintiff cannot be deemed to have settled the assets of the trade association between Nonparty 1 and Nonparty 1 by denying all rights related to the ○○○ Hospital, including the right as a lessee under the instant lease agreement. Therefore, barring any special circumstance, the Plaintiff may not seek the return of the lease deposit against the Defendants on the premise that the instant lease agreement is valid.

4. Therefore, without examining the remaining grounds of appeal, the part of the judgment below against the Defendants is reversed, and that part of 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 Lee Ki-taik (Presiding Justice)