Plaintiff (Appointed Party) (Attorney Park Jong-gu et al., Counsel for the plaintiff-appointed party-appellant)

Defendant (Attorney Lee Jae-won, Counsel for the defendant-appellant)

August 23, 2017

1. The plaintiff (appointed)'s claim is dismissed.

2. The costs of lawsuit shall be borne by the plaintiff (appointed party).

The Defendant shall pay to the Plaintiff (Appointed Party) and the Appointed the amount corresponding to each of the corresponding items in the “detailed” list of the “detailed wages by the Appointed Party and the Appointed Party” in attached Form 2, and to the Plaintiff (Appointed Party) and the Appointed 2, from September 15, 2015 to July 22, 2015; from July 11, 2015 to the date of full payment; from July 11, 2015 to the date of full payment; and from July 11, 2015 to the date of full payment, 20% interest per annum from August 1, 2015 to the date of full payment.

1. Facts of recognition;

A. The Plaintiff (Appointed Party) and the designated parties worked at ○○ Hospital (hereinafter “○○ Hospital”) located in Chungcheongnam-gun, Chungcheongnam-gun ( Address 2 omitted) from the relevant date indicated in the table of “the details of overdue wages in arrears” in the attached Table, and retired from office on the corresponding date indicated in the table of “the date of retirement” in the same Table. However, the Plaintiff (Appointed Party) and the designated parties did not receive any corresponding amount of wages as stated in the corresponding table of the same Table, each of which is the sum of the relevant wages stated in the same table, “the date of retirement” in the attached Table.

B. On July 19, 2017, the Defendant was sentenced to a judgment of conviction of two years of suspended execution on July 27, 2017 due to the facts constituting a violation of the Labor Standards Act that the Plaintiff (Appointed Party) and the designated parties had worked in the above workplace, as stated in the paragraph (a), as the actual manager of the ○○ Hospital. This became final and conclusive on July 27, 2017 ( Daejeon District Court Branch of Hongsung Branch of Daejeon District Court 2017dan31).

C. Meanwhile, the Defendant, who is a doctor, was convicted of three-year imprisonment on June 2, 2016 and was sentenced to a four-year suspended sentence on October 4, 2016 on the ground of unfair sentencing, on the ground of an act of violation of the Medical Service Act, such as where the Defendant, who is neither a doctor, had Nonparty 3 nor Nonparty 1 employed Nonparty 3 and Nonparty 1 to establish a medical institution under the name of Nonparty 1, and had obtained permission to establish the medical institution under the name of Nonparty 1 from September 27, 2014 to August 28, 2015. The Defendant was sentenced to a three-year suspended sentence of imprisonment on October 12, 2016 and was sentenced to a four-year suspended sentence on October 12, 2016 (former District Court Decision 2015Mo125, Gwangju High Court Decision 2016No9800).

D. Nonparty 1 was indicted on the charge of violating the Labor Standards Act that other workers were in arrears with the wages of April 2015, May 2014, and June 2014 of the other workers who were employed at ○ Hospital, but on September 12, 2016, whether the employer was the employer should be determined on the basis of the actual labor relationship. Nonparty 1 was sentenced not guilty on the ground that the Defendant’s establishment and operation of the ○○ Hospital in the name of Nonparty 1, etc., after Nonparty 1 employed Nonparty 1, etc. (the Daejeon District Court is under the continuation of the trial as Daejeon District Court Decision 2016No2567, Jun. 1, 2016).

[Reasons for Recognition] Facts without dispute, Gap 1 to 4 evidence, Eul 1, 24, and 27 evidence, the purport of the whole pleadings

2. The assertion and judgment

A. The parties' assertion

The Plaintiff (Appointed Party) sought payment of interest in arrears calculated at the rate of 20% per annum from September 15, 2015, 2015, from July 22, 2015, from July 11, 2015 to July 11, 2015, and from August 1, 2015 to August 1, 2015.

As to this, the Defendant: (a) transferred ○○ Hospital jointly with Nonparty 3 and Nonparty 1, who is a doctor, on March 19, 2015, and participated in the operation of the hospital only until April 7, 2015; (b) from April 8, 2015, Nonparty 4 and Nonparty 3 and Nonparty 1, who actually transferred the hospital jointly with Nonparty 3 and Nonparty 1, upon cancellation of the transfer contract due to overdue payment, etc. after the transfer; (c) the Defendant did not participate in the operation of the hospital; (d) the Plaintiff (Appointed) and Nonparty 1 were retired or newly employed in the course of restructuring on April 2015; or (e) the Plaintiff (Appointed Party) and Nonparty 2 did not actually receive wages from the Plaintiff (the appointed Party) and the appointed Party in violation of the above provision on the operation of the hospital or the duty to provide labor to the Plaintiff 28,2015.

B. Determination on the cause of the claim

In the original civil trial, even if it is not bound by the fact-finding of the criminal trial, the fact that the criminal judgment already finalized on the same factual basis is a flexible evidence, and thus, it cannot be recognized that there is no special circumstance where it is difficult to adopt the fact-finding of the criminal trial in light of other evidence submitted in the civil trial (see Supreme Court Decision 94Da39215 delivered on January 12, 1995, etc.).

In light of the facts acknowledged above in light of the above legal principles, in this case where there is no evidence to reverse the fact-finding in the criminal trial, the defendant is obligated to pay the wages of each corresponding amount as stated in the attached Table "" as well as interest in arrears of 20% per annum as stipulated in the Labor Standards Act as a person who has established a substantial labor relationship with the plaintiff (appointed party) and the designated parties, unless there are special circumstances.

C. Judgment on the defendant's fifth ground

A contract under which a person who is not a doctor or doctor has invested necessary funds in a medical institution and employs qualified medical personnel, and reports the establishment of a medical institution under his/her name; and the operation, profit, loss, etc. of a medical institution belongs to the general public is null and void due to a violation of Article 33(2) of the Medical Service Act, which is a mandatory law. However, there is no problem that a person who is not a doctor or doctor shall return gains substantially acquired from one another due to an invalid agreement to the general public (see, e.g., Supreme Court Decisions 2010Da67890, Jan. 13, 201). Inasmuch as an agreement on the business of establishing and operating a medical institution is equally null and void, the agreement on the operation, profit, or loss, etc. of a medical institution is also null and void, and both of them belong to a doctor or individual (see, e.g., Supreme Court Decisions 2003Du1493, Sep. 23, 2003; 2014>

In light of the above legal principles, the contract that the Defendant employs Nonparty 1, etc. who is a doctor, and establishes and operates the ○ Hospital under the name of Nonparty 1, which is a medical institution, is null and void in violation of Article 33(2) of the Medical Service Act, which is a mandatory law. Ultimately, for the purpose of establishing and operating the ○○ Hospital, as well as the property such as medical care benefit benefit claim, etc. acquired in the name of Nonparty 1, and the Defendant belongs to Nonparty 1, who is a doctor, to the Plaintiff (Appointed Party) and the designated parties, according to the labor contract concluded with the Plaintiff (Appointed Party) and the designated parties under the name of Nonparty

If so, the defendant's remaining arguments are without need to further examine the defendant's remaining arguments, and the defendant's argument is justified, and the plaintiff (appointed party)'s argument cannot be accepted.

3. Conclusion

Therefore, the plaintiff (appointed party)'s claim is dismissed as it is without merit.

[Attachment]

Judges Kim Jong-young