[1] Whether the administrative legislative obligation related to the transitional measures, such as granting qualifications for taking a dentist’s qualifying examination to a dentist who has completed a medical major training course in itself by itself, including Article 55 of the former Medical Service Act, is derived immediately (negative), and whether the same applies even if the Anti-Corruption and Civil Rights Commission expressed its opinion to prepare such transitional measures to the Minister of Health and Welfare (affirmative)

[2] Whether the omission of administrative legislation by the Minister of Health and Welfare, which was not prepared for a transitional measure to recognize the right to obtain the right to obtain the training experience for dentists who completed the training course in this decision of the Constitutional Court Decision 96Hun-Ma246 delivered on July 16, 1998, is unconstitutional and unlawful (negative)

[3] Whether only pre-announcement of the contents of a Bill by pre-announcement of legislation can be deemed that the State promised to, or granted trust in, the matters related to the Bill to interested parties (negative)

[1] Article 2 (1) of the State Compensation Act, Article 5 of the former Medical Service Act (amended by Act No. 5454 of Dec. 13, 1997), Article 17 of the former Regulations on Training and Recognition of Qualification for Medical Specialists (amended by Presidential Decree No. 14516 of Jan. 28, 1995) (see current Article 18), Article 2 (1) of the State Compensation Act, Article 5 of the former Medical Service Act (amended by Act No. 5454 of Dec. 13, 1997), Article 17 (see current Article 18), Addenda (amended by Presidential Decree No. 14516 of Apr. 15, 197), Article 2 (1) of the former Medical Service Act (amended by Act No. 5454 of Dec. 13, 1997), Article 15 (1) of the former Act (amended by Presidential Decree No. 14515 of Dec. 16, 1997) (see current Article 4) of the Act)

[2] Constitutional Court Decision 96Hun-Ma246 decided July 16, 1998 (Hun-Ma29, 673) / [3] Supreme Court Decision 2004Da33469 decided May 29, 2008 (Gong2008Ha, 1109)

Plaintiff 1 and 11 others (Bae, Kim & Lee LLC, Attorneys Han-soo et al., Counsel for the plaintiff-appellant)

Korea

Seoul High Court Decision 2016Na2060950 decided July 6, 2017

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. Whether the legal provision itself itself recognizes the administrative legislative obligation to take transitional measures against the plaintiffs to the Minister of Health and Welfare

Article 55 of the former Medical Service Act (wholly amended by Act No. 2533, Feb. 16, 197; Act No. 5454, Dec. 13, 1997; hereinafter the same) provides that matters necessary for the training of medical specialists, recognition of qualifications and specialized medical subjects shall be prescribed by the Presidential Decree. Regulations on training of medical specialists, recognition of qualifications, etc. (amended by the Presidential Decree No. 808, Apr. 15, 1976; Presidential Decree No. 14516, Jan. 28, 1995; hereinafter “former Medical Service Act”) provides that the method and procedure for qualifying examinations for medical specialists and other necessary matters shall be prescribed by the Ordinance of the Ministry of Health and Welfare. Furthermore, whether the existing training experience can be recognized through transitional measures, or the scope and method of recognition of the training experience of a medical institution shall be determined within the extent of delegation of dental training to the extent that it can be recognized by the Minister of Health and Welfare or within the prescribed scope of the previous dental training system.

In light of the language and purport of the provision, it is difficult to view that the relevant law itself itself does not directly lead to administrative legislative obligations regarding transitional measures, such as granting qualifications for taking a dentist qualification examination to the Minister of Health and Welfare. The Anti-Corruption and Civil Rights Commission does not change solely on the ground that it expressed its opinion to prepare such transitional measures to the Minister of Health and Welfare. The Supreme Court ruling

B. Whether the Constitutional Court is bound to enact the transitional regulations of the Minister of Health and Welfare as a matter of course.

On July 16, 1998, the Constitutional Court rendered a decision that the Ministry of Health and Welfare’s failure to take a procedure for performing the qualification examination system for dental specialists is unconstitutional (the Constitutional Court Order 96HunMa246 delivered on July 16, 1998; hereinafter “the unconstitutionality decision of this case”) on the ground that there was an administrative legislative obligation of the Minister of Health and Welfare to prepare specific measures to implement the qualification examination system for dental specialists under the delegation of the former Medical Service Act and Article 17 of the former Medical Service Act, on the ground that there was a violation of fundamental rights of the persons who have completed the training course by failing to take institutional measures for twenty years or more, and thus infringing on the fundamental rights of the persons who have completed the training course. In other words, the unconstitutionality decision of this case is not a decision that acknowledges the right to obtain the above training course for dentists who have completed the training course by delegation of the former Medical Service Act and the former Medical Service Act.

Therefore, it cannot be said that the binding force of the decision of unconstitutionality of this case directly affects the preparation of the above transitional measures.

C. Sub-decision

The judgment of the court below to the same purport is justified, and there is no error by misapprehending the legal principles on the administrative legislation obligation, contrary to what is alleged in the grounds of appeal. The remaining grounds of appeal are asserted on the premise that the administrative legislation obligation is recognized to the defendant, and thus, they cannot be accepted.

2. Regarding ground of appeal No. 2

A. A. A Bill promulgated by a central administrative agency, which is the competent authority of policies, is finalized by the promulgation of matters under its jurisdiction through the process of examination by the Ministry of Government Legislation. Thus, even if there is an advance notice of the contents of the Bill to the public through the legislative advance notice, it cannot be deemed that the State promised the matters related to the Bill to the interested parties unless it is determined by the statute, and it cannot be deemed that the government gave trust to the interested parties (see Supreme Court Decision 2004Da33469, May 29, 2008).

B. The lower court determined that: (a) it is difficult to view that the legal trust granted to the person who completed the de facto training course prior to the implementation of the qualification examination system for dental professionals; and (b) rather, there is a possibility that Article 55(1) of the former Medical Service Act may be a medical specialist to be established by the Presidential Decree and undergo the training course accordingly; (c) the Plaintiffs’ trust or expectation related to the dental specialist system is merely the party’s unilateral desire or expectation.

C. Such determination by the lower court is based on the legal doctrine as seen earlier, and contrary to what is alleged in the grounds of appeal, it did not err by misapprehending the legal doctrine on the right to claim damages.

3. Conclusion

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

Justices Jo Hee-de (Presiding Justice)