[1] Whether an act of a non-medical person who employs a qualified medical person and reports the establishment of a medical institution under his/her name violates the main sentence of Article 33(2) of the Medical Service Act (affirmative)

[2] The purport that the Consumer Cooperatives Act permits the health and medical business of the consumer cooperatives in preference to the related Acts such as the Medical Service Act

[1] Articles 33(2) and 87(1)2 of the Medical Service Act, Article 2 subparag. 1 and Article 45(1)4 of the Consumer Cooperatives Act / [2] Articles 33(2) and 87(1)2 of the Medical Service Act, Articles 1, 2 subparag. 1, 11(3), and 45(1)4 of the Consumer Cooperatives Act

[1] [2] Supreme Court Decision 2012Do14360 Decided August 20, 2014 (Gong2014Ha, 1919) / [1] Supreme Court Decision 81Do3227 Decided December 14, 1982 (Gong1983, 314)

Defendant 1 and three others

Defendants

Law Firm Hansung et al.

Incheon District Court Decision 2013No2823, 3481 Decided March 18, 2014

All appeals are dismissed. Of the judgment of the court of first instance, “2. Incheon District Court Branch Decision 2013Ma6816 decided November 14, 2013” in the judgment of the court of first instance shall be corrected to “2.14, Incheon District Court Decision 2013Ma6816 decided November 14, 2013.”

The grounds of appeal are examined.

1. As to the grounds of appeal by Defendants 2 and 3

A. As to the Defendants’ violation of the Medical Service Act

(1) The main sentence of Article 33(2) of the Medical Service Act provides that “no person, other than a person falling under any of the following subparagraphs, may establish a medical institution.” Under each subparagraph, a person who can establish a medical institution is limited to “medical doctor, dentist, oriental medical doctor, midwife, State or local government, non-profit corporation established under the Civil Act or any special Act, quasi-government organization established under the Act on the Management of Public Institutions, local medical center established under the Act on the Establishment and Operation of Local Medical Centers, or the Korea Veterans Welfare and Healthcare Corporation established under the Korea Veterans Welfare and Healthcare Corporation Act.” The purport of the above provision is to protect and promote the health of the people by strictly restricting the establishment of a medical institution by medical personnel with medical expertise or public corporation with public character, institution, etc. (see Supreme Court Decision 2004Do3875, Sept. 24, 2004).

Therefore, it is reasonable to deem that an act of opening and reporting a medical institution under the name of a qualified medical person by investing necessary funds in the general public who is not qualified as a medical personnel is the most formally, and practically violates the main sentence of Article 33(2) of the Medical Service Act as the act of establishing and operating a medical institution by a person who is not a medical personnel. The report on opening and reporting is not different from the act of directly performing medical acts by a medical person who has become the name of a medical personnel or who has reported the opening and reporting the establishment (see Supreme Court Decision 81Do327, Dec. 14, 1982). This legal principle likewise applies to a case where a medical institution is reported under the name of a consumer cooperative association (hereinafter “consumer cooperative”) established under the Consumer Cooperatives Act (hereinafter “Consumer Cooperatives Act”) which explicitly permits medical business. In addition, even if a medical person is a medical person, if a person participates in the act of opening and operating a medical institution by a person who is unable to establish a medical institution under the Medical Service Act, it constitutes a joint principal offense (see Supreme Court Decision 2013Do1010.

(2) Meanwhile, Article 45(1)4 of the Mutual Cooperation Act provides for “public health and medical services for improving the health of union members” in relation to projects that can be performed as a non-profit corporation for the purpose of achieving the objectives of self-reliance and self-governing consumption of union members, and Article 11(3) of the same Act provides that “this Act shall take precedence over the relevant Acts concerning public health and medical services of union members, etc.” As such, granting permission for public health and medical services of the Mutual Cooperation Association and granting priority over the relevant Acts, such as the Medical Service Act, to ensure that the Mutual Cooperation Act preferentially limits the application of the relevant Acts in conflict with the above projects to ensure the legitimate health and medical services of the Mutual Cooperation Association to contribute to the accomplishment of the objectives of the Mutual Cooperation Association, which is called the promotion of independent, self-reliance and autonomous consumption activities of union members, and that the Mutual Cooperation Association does not exclude the application of the Act to the most legitimate health and medical services of the Mutual Cooperation Association only in the case of abuse as a form of law for an individual’s health and medical services prohibited under the Medical Service Act.

(3) Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted by the lower court, the lower court was justifiable to have determined that the Defendants’ act of violating the Medical Service Act constituted the establishment of a medical institution prohibited under the main sentence of Article 33(2) of the Medical Service Act, on the grounds as stated in its reasoning. In so doing, the lower court did not err by exceeding the bounds of the principle

B. As to Defendant 3’s remaining grounds of appeal

According to the records, Defendant 3 appealed from the judgment of the court of first instance on the ground of mistake of facts and unreasonable sentencing, but withdrawn the grounds for appeal for mistake of facts on the fourth trial of the court below. In such a case, the allegation that there was an error of mistake of facts as to the fraud among the judgment of the court of first instance does not constitute a legitimate ground for appeal. Furthermore, even if examining the records, there was no

2. As to the respective appeals by Defendants 1 and 4

The above Defendants did not submit the grounds of appeal within the statutory period.

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench that there is an obvious clerical error in the judgment of the court of first instance among the indication of the judgment of the court of first instance.

Justices Park Poe-young (Presiding Justice)