[1] Judicial effect of a juristic act in violation of Article 30 (2) of the Medical Service Act (negative)

[2] The meaning of the principle of trust and good faith and the requirements to deny the exercise of rights on grounds of violation

[3] The method of transferring the copyright of the computer program and the effect where the transfer contract is null and void

[1] Article 30(2) of the Medical Service Act prohibits a person, other than medical personnel or medical corporation, from establishing a medical institution, and Article 6 subparag. 3 of the same Act provides that a person, other than a non-profit corporation, such as medical personnel or medical corporation, shall be punished by imprisonment for not more than five years, or by a fine not exceeding 20 million won, if such person violates the above provision. The legislative purpose of the above prohibition provision is to ensure the proper operation of medical treatment and enhance the health of the people. Thus, the above prohibition provision is to establish a sound medical order by strictly limiting the qualification for establishing a medical institution to a medical person or a person with a public nature, and to prevent any danger to people's health that may occur in advance when establishing a medical institution for profit-making purposes. The establishment and operation of a medical institution by a person, other than medical personnel or medical corporation, is not only a criminal act subject to criminal punishment, but also has an anti-social nature so far as it can not be accepted by social norms in light of the public health risks following such violation.

[2] The principle of trust and good faith is an abstract norm that a party to a legal relationship should not exercise his right or perform his duty in a way that is contrary to the principle of trust and good faith, taking into account the other party's interest. In order to deny the exercise of such right on the ground that it violates the principle of trust and good faith, there should be a good faith provided to the other party, or the other party should be objectively regarded as being trust and good, and the exercise of the right against the other party's good faith should be in a situation that is not acceptable in light of the concept of justice. Barring special circumstances, barring special circumstances, even though the person who performed the legal act knowing that it is null and void due to its violation of the law, it shall not be deemed as contrary to the principle of trust and good faith or the principle

[3] The copyright of a computer program is transferred to the assignee without any particular procedure when a copyright transfer contract is concluded between the parties. If a contract for the purpose of transferring a copyright is null and void, the copyright shall be deemed not to have been transferred from the beginning.

[1] Articles 30(2) and 66 subparag. 3 of the Medical Service Act, Article 103 of the Civil Act / [2] Article 2(1) of the Civil Act / [3] Article 41(1) of the Copyright Act

[1] Supreme Court Decision 2001Do2015 decided Nov. 30, 2001 (Gong2002Sang, 238) / [2] Supreme Court Decision 99Da4405 decided Mar. 23, 199 (Gong1999Sang, 752) Supreme Court Decision 99Da53490 decided May 15, 2001 (Gong2001Ha, 1370), Supreme Court Decision 2001Da67126 decided Mar. 15, 2002 (Gong2002Sang, 8866)

AlmatS Korea Co., Ltd. (Attorneys Lee Im-soo et al., Counsel for the plaintiff-appellant)

Defendant-Counterclaim Plaintiff (Attorney Kim Young-sung et al., Counsel for the defendant-Counterclaim plaintiff-appellant)

Seoul High Court Decision 2001Na36940, 52775 delivered on November 21, 2002

All appeals are dismissed. The costs of appeal are assessed against each party.

We examine the grounds of appeal.

1. As to the ground of appeal by the Plaintiff (Counterclaim Defendant, hereinafter “Plaintiff”)

A. On the first ground for appeal

After finding the facts of the judgment, the court below determined that the contract of this case concluded between the plaintiff and the defendant was a partnership agreement with the content that the plaintiff provided the location of the hospital, medical device, capital like equipment, human resources, management know-how, etc., and the defendant (the plaintiff Lessee; hereinafter referred to as "the defendant") provided the business intangible assets such as the existing patient, and the function and reputation as a medical specialist for the extension of kidne, and distributed the income generated from the operation of the medical institution at a certain ratio.

Examining the evidence admitted by the court below in light of the records, the above recognition and judgment of the court below are just, and there is no error of law such as misconception of facts against the rules of evidence as alleged in the grounds of appeal. This part of the grounds of appeal cannot be accepted

B. On the second ground for appeal

Article 30(2) of the Medical Service Act prohibits a person, other than a medical person or a medical corporation, from establishing a medical institution; Article 66 Subparag. 3 provides that a person, other than a medical person or a medical corporation, shall be punished by imprisonment with labor for not more than five years, or by a fine not exceeding 20 million won, if such person violates the foregoing provision. The legislative purpose of the above prohibition is to ensure the appropriateness of medical care and to protect and promote the health of the people. Thus, the above prohibition provision is to establish a sound medical order by strictly limiting the qualification for establishing a medical institution to a medical person or a person with a public nature (hereinafter referred to as "medical person, etc.") and to prevent the risk to the people's health before establishing a medical institution for profit-making purposes. The establishment and operation of a medical institution by a person, other than a medical person or a medical corporation, is not only a criminal act subject to criminal punishment, but also an act of establishing and operating the medical corporation in violation of social norms to the extent that it can not be justified (see Supreme Court Decision 201Do2015, supra.).

The court below's decision that the contract of this case concluded by a person who is not qualified to establish a medical institution for the purpose of establishing a medical institution was invalid as violating the mandatory law is just in accordance with the above legal principles, and there is no violation of the misunderstanding of legal principles as to Article 30 (2) of the Medical Service Act, as alleged in the grounds of appeal. The ground of appeal on

C. On the third ground for appeal

Examining the evidence admitted by the court below in light of the records, the court below is just in holding that the acquisition of the software of this case and the development contract of this case, which are essential parts of the contract of this case, are invalid, unless there are circumstances to deem that the contract of this case, which are the main contract, would have been null and void even if the contract of this case was null and void, and it is not erroneous in the misapprehension of legal principles as to mistake of facts or partial invalidation due to the violation of the rules of evidence, as alleged in the grounds of appeal.

D. On the fourth ground for appeal

The principle of trust and good faith is an abstract norm that a party to a legal relationship should not exercise rights or perform obligations in a way that violates the principle of trust and good faith by taking into account the other party's interest. In order to deny the exercise of such rights on the ground that it violates the principle of trust and good faith, there must be a good faith provided to the other party, or objectively viewed that the other party has good faith, and the other party's exercise of rights against the other party's trust should be in a situation that is not acceptable in light of the concept of justice, and barring special circumstances, it should not be deemed that the legal act violates the principle of trust and good faith or the principle of prohibition or constitutes abuse of rights (see, e.g., Supreme Court Decisions 9Da4405, Mar. 23, 199; 9Da53490, May 15, 2001; 9Da6160, Mar. 215, 2002).

The court below is just in holding that the defendant who did a juristic act violating the provisions of Article 30 (2) of the Medical Service Act, which is a mandatory law, asserts the invalidation on the ground of a violation of the mandatory law, and that it cannot be viewed as a violation of the principle of good faith or the principle of good faith, and there is no error in the misapprehension of legal principles as to the good faith principle, as alleged in the grounds of appeal. This part

2. As to the Defendant’s grounds of appeal (the grounds of appeal by the Defendant are examined to the extent of supplementing the grounds of appeal)

A. On the first ground for appeal

The computer program copyright is transferred to the assignee without any particular procedure when a copyright transfer contract is concluded between the parties, and if the contract for the purpose of transferring the copyright is null and void, the copyright shall be deemed not to have been transferred from the beginning.

Examining the evidence admitted by the court below in light of the records, it is just for the court below to reject the defendant's defense of offsetting on the premise that the defendant's transfer of the software of this case to the plaintiff constitutes a case where the defendant cannot return the copyright of the computer program of this case to the plaintiff and its value should be returned in unjust enrichment. There is no error in the misapprehension of legal principles as to return of unjust enrichment due to the invalidation of the computer program copyright and transfer contract, as alleged in the ground of appeal.

B. On the second ground for appeal

Examining the evidence admitted by the court below in light of the records, the court below is just in rejecting the defendant's assertion that the plaintiff deceptions a medical corporation to establish despite the lack of intent or ability to establish the medical corporation, and there is no evidence to prove it, and there is no error of law such as misconception of facts due to violation of the rules of evidence, as alleged in the grounds of appeal. The

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Seo-sung (Presiding Justice)