[1] Meaning of “a violation of this Act or any order issued under this Act” under Article 66(1)8 of the former Medical Service Act, which provides the grounds for suspending a medical license, and whether an administrative sanction may be imposed on the license of a doctor who is an operator of the pertinent medical institution on the ground that a violation of the Medical Service Act by an employee was committed during the course of operating the medical institution (negative in principle)

[2] In a case where the Minister of Health and Welfare rendered a disposition of suspension of qualification for one month against the will of operating the council member on the ground that the office chief of the council member provided transportation to a patient who is not a person eligible for provision of transportation, and violated Article 27 (3) of the former Medical Service Act, the case holding that the above disposition was unlawful on the ground that the reason for suspension of license under Article 6 (1) 8 of the above Act

[1] Article 66 (1) 8 of the former Medical Service Act (amended by Act No. 9386 of Jan. 30, 2009) which provides the grounds for suspending a doctor's license refers to a case where a doctor has an intention to commit a violation or is responsible to an individual for a violation of the Medical Service Act by an employee, and it is reasonable to deem that a violation of the Medical Service Act by an employee in the course of operating a medical institution does not immediately constitute an administrative sanction against the license of a doctor who is an operator of the medical institution.

[2] In a case where the Minister of Health and Welfare rendered a disposition of suspending qualification for one month against the will of operating the council member on the grounds that the office chief of a council member provided transportation to a patient who is not a person eligible for provision of transportation and violated Article 27 (3) of the former Medical Service Act (amended by Act No. 9386 of Jan. 30, 2009), the case holding that the above disposition is unlawful on the grounds that the office chief of the council's act of providing transportation in question was judged by himself as a result of failing to neglect the duty to verify the personal information of the person subject to provision of transportation or refuse the request of the aged patient, and it is insufficient to recognize that the doctor instructed or knew of the act, and it is difficult to view that there was a reason for supervising the act, such as negligence or negligence, and it is difficult for the doctor to view that there is a reason for suspending the license of Article

[1] Article 66 (1) 8 of the former Medical Service Act (amended by Act No. 9386 of Jan. 30, 2009) / [2] Articles 27 (3) and 66 (1) 8 of the former Medical Service Act (amended by Act No. 9386 of Jan. 30, 2009)

Plaintiff (Law Firm Jin-jin, Attorneys Lee Jin-soo et al., Counsel for plaintiff-appellant

The Minister of Health and Welfare

January 7, 2010

1. The defendant's disposition of suspending the qualification of doctor against the plaintiff on July 10, 2009 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. After obtaining a doctor’s license, the Plaintiff is operating ○○○○○ Council member (hereinafter “instant Council member”) from April 1, 2008 to the end of the Net City (hereinafter omitted).

B. On April 1, 2009, Nonparty 1 used the passenger car registered with Nonparty 2 and Nonparty 3 as the transportation-providing vehicle on August of the same month, and the Plaintiff provided medical treatment. Nonparty 2 and Nonparty 3 were not included in the person subject to the prior approval from the net City.

C. At the net Police Station on April 8, 2009, the Plaintiff asked questions as to why he would offer transportation convenience to a patient who has not obtained approval. The Plaintiff asked that “I know that the head of the office had phone from the registered patient, and that I have been inevitably gathered to the village where the non-party 3 patient resides,” and asked whether the Plaintiff instructed the question, “I do not do so. I do not have this fact. I have the right to ask for annomenclature that I have no choice but to report the elderly 3 patient with the deepness and that I have been inevitably gathered.” On the same day, Non-party 1 also stated in the Net Police Station that “I have no choice but to ask for the identification of the patient’s personal information from February 11, 2009 to the instant Council, and that I have no choice but to ask for the identification of the patient’s personal information from the phone to the hospital, and then it is difficult to confirm that I have to provide the patient with the phone to the hospital.”

D. On April 22, 2009, the prosecutor of the office of the Gwangju District Prosecutors' Office: (a) committed an act of inducing patients by Nonparty 1, who provides transportation convenience to many and unspecified persons; and (b) violated Article 27(3) of the former Medical Service Act (amended by Act No. 9386, Jan. 30, 2009; hereinafter "Medical Service Act"); and (c) on the suspicion of having committed such a violation of the Medical Service Act by Nonparty 1, an employee of the Plaintiff, the Plaintiff issued a disposition of suspension of indictment on the grounds that “The size of the vehicle used for the provision of transportation convenience is small, but the size of the vehicle is small, using the vehicle for the provision of transportation convenience, and the target of the unauthorized Non-Party 1’s non-Party 1’s act of this case, with the intention of profit-making only.”

E. On May 6, 2009, the Do governor sent a written request to the Defendant for an administrative disposition containing the following violations of the Medical Service Act.

Details of violation of the Medical Service Act

The act of mediating and inducing patients (the provision of transportation convenience to many unspecified persons) of the ○○○○○ Council member, who was aware of the violation of the administrative disposition related to the violation of the Act on the Prevention of Qualification Qualification (Medical Person) No. 27(3) and Article 66(1)8 of the Medical Service Act, which is included in the main text.

F. On July 10, 2009, the Defendant issued a one-month disposition of qualification suspension pursuant to Article 66(1)8 of the Medical Service Act and the former Rules on Administrative Dispositions related to Medical Service (amended by Ordinance of the Ministry of Health, Welfare and Family Affairs No. 110, May 15, 2009) [Attachment Table] [Attachment Table 1. 1] and 2. 19 of individual criteria of administrative disposition (hereinafter “instant disposition”).

[Ground for Recognition: Facts without dispute, Gap 3, 5, 7, 8, 9, Eul evidence, Eul 1, the purport of the whole pleadings]

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) Non-existence of grounds for disposition

(A) The Plaintiff was subject to a disposition of suspending prosecution for suspected facts under Article 91(2) of the Medical Service Act. However, since Article 91(2) of the Medical Service Act only provides the grounds for punishing the employer for the act of an employee, it cannot be said that this constitutes “when violating this Act or any order issued under this Act” under Article 66(1)8 of the Medical Service Act. Furthermore, in light of the purport of the Constitutional Court’s decision (2008HunGa16) that joint penal provisions under Article 91(2) of the Medical Service Act are unconstitutional against the principle of accountability, the Plaintiff cannot be subject to criminal punishment under Article 91(2) of the Medical Service Act. Accordingly, if the Plaintiff’s instant disposition was made on the ground that the Plaintiff is subject to punishment under Article 91(2) of the Medical Service Act, it is unlawful.

(B) The Plaintiff did not instruct Nonparty 1 to move the vehicle to a hospital by using the vehicle to the patient who is not a person subject to the provision of transportation approved by Nonparty 1. The Plaintiff cannot be deemed to have committed a violation of Article 27(3) of the Medical Service Act, setting aside whether Nonparty 1 was a person subject to the provision of transportation approved by Nonparty 1’s act of soliciting patients.

(2) A deviation from or abuse of discretionary power

In light of the fact that the administrative guidance and order (Article 59(1) of the Medical Service Act) could achieve the purpose of the medical policy that prevents the Plaintiff from soliciting patients in the future, and that the patients who need the Plaintiff from receiving medical treatment are unable to receive medical treatment due to the disposition of this case, which led to the significant damage, the disposition of this case is too harsh and thus, it deviates from and abused the discretionary authority.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

(1) Whether grounds for action exist

(A) Determination as to the assertion that the person is subject to punishment under Article 91(2) of the Medical Service Act does not constitute a ground under Article 66(1)8 of the Medical Service Act

The instant disposition reason was in violation of Article 27(3) of the Medical Service Act by inducing patients through the provision of transportation convenience to many and unspecified persons, and it constitutes Article 66(1)8 of the Medical Service Act. Thus, the Plaintiff’s assertion that it is subject to punishment under the joint penal provision of Article 91(2) of the Medical Service Act is without merit, on the premise that it is subject to punishment under the joint penal provision of Article 91(2) of the same Act.

(B) Determination as to the assertion that the Plaintiff did not have induced patients in violation of Article 27(3) of the Medical Service Act, and thus does not constitute a ground for Article 66(1)8 of the Medical Service Act

1) Where the nature of permission is strong like food business permission under the Food Sanitation Act, the person who obtained permission should take administrative responsibility due to the administrative violation of the employees’ business establishment, and it does not change because he did not know of such violation. Since sanctions imposed on the administrative violation are sanctions imposed upon the objective fact of violation of administrative regulations to achieve administrative purposes, barring special circumstances such as where he/she does not cause any negligence on the duty of the violator, it may be imposed even if he/she did not intentionally or negligently (see Supreme Court Decision 2002Du5177, Sept. 2, 2003). However, unlike permission under the Food Sanitation Act which has a strong nature of permission, a medical doctor license under the Medical Service Act is imposed on an individual, unlike the permission under the Food Sanitation Act, and separate sanctions are imposed on an individual, such as the suspension of medical business or the cancellation of permission (Article 64 of the Medical Service Act) or the imposition of a penalty surcharge (Article 67 of the Medical Service Act). Thus, the person who committed an act of violation under the Medical Service Act, other than the Medical Service Act, is an individual.

2) The act of offering transportation at issue in this case was conducted once on two elderly patients, and in light of the circumstances of this case, it appears that the non-party 1, who was in a state of being familiar with the pertinent duty, neglected the duty to verify the identity of the subject, or did not refuse the request from the elderly patients. In other words, it is insufficient to recognize that the plaintiff ordered or knew the act to the non-party 1, and there is no other evidence to acknowledge it, and it is difficult to view that the plaintiff was responsible for the supervisory negligence or other negligence.

3) Therefore, in the instant case, the Plaintiff cannot be deemed to have a ground for suspending the license under Article 66(1)8 of the Medical Service Act against the Plaintiff.

(2) Sub-determination

Without examining the remainder of the Plaintiff’s remaining arguments, the instant disposition made on the premise that the cause of Article 66(1)8 of the Medical Service Act occurred to the Plaintiff is unlawful.

3. Conclusion

The plaintiff's claim is justified and accepted.

[Attachment] Relevant Statutes: omitted

Judges Lee Jin-man (Presiding Judge)