Where a medical person qualified to establish a medical institution lends the name of another medical person or a person eligible to establish a medical institution, whether such medical institution can be deemed as a violation of Article 30(2) of the Medical Service Act (negative)

The purpose of the main text of Article 30(2) of the Medical Service Act is to prevent medical personnel with medical expertise or corporations, institutions, etc. having public character from opening a medical institution by strictly restricting the license for opening a medical institution and preventing any other person from opening a medical institution. Therefore, even if a medical person qualified to establish a medical institution lends his/her name from those prescribed in each subparagraph of Article 30(2) of the Medical Service Act to establish a medical institution under his/her name, it is different from the case where a person who is not qualified to establish a medical institution opens a medical institution, and thus, cannot be deemed as violating the main sentence of Article 30(2) of the Medical Service Act

Article 30(2) of the Medical Service Act

Defendant

Prosecutor

Law Firm Squa, Attorneys Park Dong-dong, and Kim Byung-kick

Seoul Central District Court Decision 2004No1513 Delivered on June 2, 2004

The appeal is dismissed.

We examine the grounds of appeal.

The main text of Article 30 (2) of the Medical Service Act provides that "no person, other than those falling under any of the following subparagraphs, may establish a medical institution." The person who is entitled to establish a medical institution under each subparagraph shall be limited to "1. Medical doctor, dentist, oriental medical doctor, midwife, State or local government, 2. State or local government, 3. Medical Service, non-profit corporation established under the Civil Act or special Acts, 4. Government-invested institution under the Framework Act on the Management of Government-Invested Institutions, local public corporation under the Local Public Enterprises Act, or the Korea Veterans Welfare and Healthcare Corporation under the Korea Veterans Welfare and Healthcare Corporation Act." The purpose of the above provision is to strictly limit the medical qualification for establishing a medical institution to prevent any medical person who has medical expertise or public nature from establishing a medical institution and to protect the health of the people. Thus, even if a medical person who is entitled to establish a medical institution lends the name of a person under each subparagraph of Article 30 (2) of the Medical Service Act to establish a medical institution, this shall not be deemed to violate the main sentence of Article 30 (2) of the Medical Service Act.

According to the reasoning of the judgment below, the court below found that the defendant, a non-profit foundation, committed a violation of Article 30 (2) of the Medical Service Act by in collusion with the non-indicted who is the representative director of the Korean Institute of Medical Sciences that is a non-profit foundation, established a "SIB" in the name of the above incorporated foundation, and established a "SIB" affiliated with the Korean Institute of Medical Sciences". The court below held that if a medical person is qualified to establish a medical institution, it cannot be viewed as a violation of Article 30 (2) of the Medical Service Act even if the defendant lent the name of another medical person or a person qualified to establish another medical institution. The defendant is entitled to lawfully establish a medical institution as a non-profit foundation under the Civil Act with the aim of contributing to promoting the national medical care benefits and health care through the research and development of the medical field, and the defendant established a branch office for the purpose of health examination by lending the name of the Korean Institute of Medical Sciences that is a foundation, and there is no evidence to prove that the defendant violated the Medical Service Act.

Examining the reasoning of the judgment below in light of the records and the above legal principles, we affirm the above fact-finding and judgment of the court below as just, and there is no error of law such as misconception of facts due to the violation of the rules of evidence or misunderstanding of legal principles as to the interpretation of Article 30 (2) of the Medical Service Act. All the arguments

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)