[1] The purport of punishing a non-medical person in violation of Article 33(2) of the Medical Service Act as a matter of principle and Article 87(1)2 of the same Act / The meaning of “the act of establishing a medical institution” prohibited under the same Article 87(1)2 of the same Act

[2] Standard for distinguishing between the inclusive crime and the substantive concurrent crime / In a case where non-medical persons change the name of the founder in the Do established and operated by a medical institution to another medical person, etc., the number of such crimes (=the separate crime by the opener’s name is established, and each crime is established

[1] Article 33(2) of the Medical Service Act prohibits, in principle, the establishment of a medical institution by a medical person, medical corporation, or any other person, other than a non-profit corporation, in violation of Article 87(1)2 of the same Act. The purport of Article 87(1)2 of the same Act is to establish a sound order in medical services and prevent any harm to national health that may occur when establishing a medical institution for profit-making purposes by strictly restricting the qualifications for establishing a medical institution to a medical personnel or a person with a public character. The act of establishing a medical institution prohibited under the above provision of the Medical Service Act refers to the act of treating non-medical personnel from the lead of the recruitment and management of facilities and human resources of a medical institution, report on establishment,

Therefore, the above series of acts performed by non-medical persons from the leading point of view constitutes a single crime, barring any special circumstance, and the establishment of this series of acts cannot be deemed terminated at the time of the completion of the establishment report, and it should be deemed terminated only when the non-medical persons deviate from the leading treatment relationship as above.

[2] Where a number of acts falling under the name of the same crime continues to be committed for a certain period under the single and continuous criminal intent and the legal benefits from such damage are the same, each act shall be punished by a single comprehensive crime. However, where the unity and continuity of the criminal's intent are not recognized or the method of committing a crime is not the same, each act constitutes a substantive concurrent crime.

The Medical Service Act strictly limits the eligibility to establish a medical institution (Article 33(2)), and imposes various obligations on a person who establishes a medical institution with respect to the medical institution from the permission to establish and establish a medical institution to operate the medical institution, as well as from the closure of the business (Articles 33(3), 36 through 38, 40, 45, 48, and 49). If a founder changes, he/she shall report the change of the reported matters to the head of a Si/Gun, etc., or obtain permission to change such matters, and at the time the changed founder bears the above obligations. In addition, in order for a medical institution to provide health care benefits under the National Health Insurance Act, he/she shall file a report on the change of the current status of the health care institution with the Health Insurance Review and Assessment Service along with a certificate of personal seal impression issued by the founder or its representative (Article 42 and Article 43 of the National Health Insurance Act, and Article 12(2) of the Enforcement Rule of the National Health Insurance Act).

Considering these circumstances, the name of the founder of a medical institution serves as an important mark for identifying and identifying the identity of the medical institution. As such, in cases where a non-medical person changes the name of the founder of an Do established and operated by a medical institution to another medical person, etc., such criminal intent is single, or the method of committing an offense is difficult to deem that the name of the founder is identical to that of the previous medical person. Therefore, the establishment of separate crimes by name

[1] Articles 33(2) and 87(1)2 of the Medical Service Act, Article 37 of the Criminal Act / [2] Article 37 of the Criminal Act, Articles 33, 36, 37, 38, 40, 45, 48, 49, and 87(1)2 of the Medical Service Act, Articles 42, 43, and 115(3)4 of the National Health Insurance Act, Article 12(1) and (2) of the Enforcement Rule of the National Health Insurance Act

[1] Supreme Court Decision 2009Do2629 Decided October 27, 201 (Gong2011Ha, 2478) Supreme Court Decision 2014Do7217 Decided September 25, 2014 (Gong2014Ha, 2148) / [2] Supreme Court Decision 2007Do8645 Decided November 11, 2010 (Gong2010Ha, 2285)

Defendant 1 and three others

Defendant 2, Defendant 3, and Prosecutor (Defendant 1, Defendant 2, and Defendant 4)

Attorneys Kim J-jin et al.

Seoul Eastern District Court Decision 2018No143 decided June 21, 2018

The part of the lower judgment against Defendants 1, 2, and 4 is reversed, and that part of the case is remanded to the Panel Division of the Seoul Eastern District Court. Defendant 3’s appeal is dismissed.

The grounds of appeal are examined.

1. As to the prosecutor's grounds of appeal

A. (1) Article 33(2) of the Medical Service Act prohibits, in principle, the establishment of a medical institution by a medical person, medical corporation, or any other person, other than a non-profit corporation, in violation of Article 87(1)2 of the same Act. The purport of Article 87(1)2 of the same Act is to establish a sound medical order by strictly restricting the qualifications for establishing a medical institution to either a medical person with medical expertise or a person with a public nature, and to prevent in advance risks to national health that may arise when establishing a medical institution for profit-making purposes. The act of establishing a medical institution prohibited under the foregoing provision of the Medical Service Act refers to the act of treating non-medical persons from the leading point of view, such as the recruitment and management of human resources of a medical institution, the report on establishment, the implementation of medical business, the raising of necessary funds, and the reversion of the operational performance (see, e.g., Supreme Court Decisions 2009Do2629, Oct. 27, 2011; 2014Do7).

Therefore, the above series of acts performed by non-medical persons from the leading point of view constitutes a single crime, barring any special circumstance, and the establishment of this series of acts cannot be deemed terminated at the time of the completion of the establishment report, and it should be deemed terminated only when the non-medical persons deviate from the leading treatment relationship as above.

(2) Where a number of acts falling under the name of the same crime continues to be committed for a certain period under the single and continuous criminal intent and the legal benefits from such damage are the same, each of these acts shall be punished by a single comprehensive crime. However, where the unity and continuity of the criminal intent are not recognized or the method of committing a crime is not the same, each of the crimes constitutes substantive concurrent crimes (see Supreme Court Decision 2007Do8645, Nov. 11, 2010, etc.).

The Medical Service Act strictly limits the eligibility to establish a medical institution (Article 33(2)), and imposes various obligations on a person who establishes a medical institution with respect to the medical institution from the permission to establish and establish a medical institution to operate the medical institution, as well as from the closure of the business (Articles 33(3), 36 through 38, 40, 45, 48, and 49). If a founder changes, he/she shall report the change of the reported matters to the head of a Si/Gun, etc., or obtain permission to change such matters, and at the time the changed founder bears the above obligations. In addition, in order for a medical institution to provide health care benefits under the National Health Insurance Act, he/she shall file a report on the change of the current status of the health care institution with the Health Insurance Review and Assessment Service along with a certificate of personal seal impression issued by the founder or its representative (Article 42 and Article 43 of the National Health Insurance Act, and Article 12(2) of the Enforcement Rule of the National Health Insurance Act).

Considering these circumstances, the name of the founder of a medical institution serves as an important mark for identifying and identifying the identity of the medical institution. As such, in cases where a non-medical person changes the name of the founder of an Do established and operated by a medical institution to another medical person, etc., such criminal intent is single, or the method of committing an offense is difficult to deem that the name of the founder is identical to that of the previous medical person. Therefore, the establishment of separate crimes by name

B. The lower court ex officio determined as follows.

(1) The term “establishment” of a medical institution under Article 33(2) of the Medical Service Act does not include the meaning of “operation”.

(2) After Defendant 1 initially opened and operated the ○○○○○ dental clinic store under the name of a dentist, Defendant 1 changed the name of the founder to Defendant 4, October 16, 2015, Defendant 5, Co-Defendant 6 of the first instance trial on February 15, 2016, and Defendant 3 opened and operated the ○○○○○ dental clinic store under the name of a dentist, and changed the name of the founder to the non-indicted 6. The founder changed the name on December 20, 2015, when operating the ○○○ dental clinic store under the name of a dentist.

(3) In addition to the change of the name before and after the change of the founder of each of the above dental services, the medical personnel and the medical personnel have not been changed to the extent that they would lose their identity, and Defendant 1 also seems to have had the intention to newly establish a medical institution different from the previous medical institutions. Since the Medical Service Act provides for procedures such as the change of name, it is difficult to view that Defendant 1 newly established a medical institution due to the change of the name of the founder of each of the above dental services.

(4) Therefore, among the facts charged in the instant case, the part on the violation of the Medical Service Act that Defendant 1 opened ○○○○ dental clinic store under the name of Defendant 4, Defendant 5, and Defendant 6 under the name of the co-defendant 6 of the first instance trial, and each of the violation of the Medical Service Act that Defendant 2 introduced Defendant 4, Defendant 5, and Defendant 6 to Defendant 1, Defendant 2, Defendant 4, Defendant 5, and Defendant 6 of the first instance trial, respectively, and Defendant 4’s violation of the Medical Service Act.

C. However, in light of the above legal principles, we cannot accept the above judgment of the court below for the following reasons.

(1) The period during which Defendant 1 reported the establishment of the ○○○ dental clinic store under the name of Defendant 3 and thereafter, the founder’s name was changed to Defendant 4, Defendant 5, and Defendant 6 to orderly Defendant 6, and each founder’s name was established, including each person’s name during the period operated by Defendant 4, Defendant 1’s co-defendant 5, and Defendant 6, and each person’s name was in the relation of substantive concurrent crimes.

(2) Defendant 1’s establishment and operation of the ○○○ dental clinic by filing a report on the establishment of the ○○○ dental clinic under Defendant 3, and the period during which the founder’s name was changed to the Nonindicted Party and operated, including each founder’s name. The crime by each founder’s name should be deemed as having the relation of substantive concurrent crimes.

(3) Defendant 2 introduced Defendant 4, Co-Defendant 5, and Co-Defendant 6 of the first instance trial to Defendant 1 in the order of employment intention, and ordered Defendant 1 to establish the ○○○○○ dental clinic store in the name of each employment intention. As such, Defendant 1’s above aiding and abetting Defendant 4, Co-Defendant 5 of the first instance trial, and Co-Defendant 6 of the first instance trial to commit the crime of opening a medical institution in the name of Defendant 4, Defendant 5, and Defendant 1’

(4) Defendant 4 is a co-principal inasmuch as Defendant 1 conspireds to establish a medical institution under Defendant 4’s above-mentioned Defendant 1 by lending the name of his dentist and working as an employment doctor, and thus, Defendant 4 constitutes a co-principal (see, e.g., Supreme Court Decisions 2001Do2015, Nov. 30, 2001; 2017Do378, Apr. 7, 201).

D. Nevertheless, the lower court rendered a not guilty verdict on this part on the grounds as seen earlier. In so determining, the lower court erred by misapprehending the legal doctrine on the establishment of a crime of violating the Medical Service Act and the number of crimes committed by non-medical personnel due to the establishment of a medical institution, thereby adversely affecting the conclusion of the judgment. The

Meanwhile, the prosecutor appealed against Defendant 1 and Defendant 2 in the lower judgment. However, the guilty part is not indicated in the petition of appeal or the appellate brief.

2. As to Defendant 3’s ground of appeal

According to Article 383 subparagraph 4 of the Criminal Procedure Act, only cases where death penalty, life imprisonment, or imprisonment with or without prison labor for not less than ten years has been imposed, an appeal may be filed on the ground that the judgment of the court below affected the judgment due to gross mistake of facts or that the amount of the punishment is extremely unfair.

Therefore, in this case where a more minor punishment is imposed against Defendant 3, the argument that the lower court’s decision on the selection and probative value of evidence or its fact-finding based on the free judgment of the fact-finding court is erroneous, or that the sentencing of the lower court is unreasonable is not a legitimate ground for appeal.

3. The scope of reversal against Defendant 1 and Defendant 2

A. The part of the judgment of the court below as to Defendant 1’s non-guilty of the violation of the Medical Service Act with respect to Defendant 1 should be reversed. However, this part of the judgment of the court below should be reversed in its entirety, since it is in the concurrent relationship between the violation of the Medical Service Act, the violation of the Act on Special Measures for the Control of Public Health Crimes (unlawful Medical Business Operators) and the violation of the Act on Special Measures for the Control of Public Health Crimes, and the crime of fraud

B. The part of the judgment of the court below as to Defendant 2’s acquittal should be reversed. However, since the remaining part of the judgment of the court below which found Defendant 2 guilty is concurrent crimes under the former part of Article 37 of the Criminal Act, all of them should be sentenced to a single punishment. Therefore, the part as to Defendant 2 in the judgment of

4. Conclusion

Therefore, without further proceeding to decide on Defendant 2’s grounds of appeal, the part against Defendant 1, 2, and 4 of the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. Defendant 3’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Seon-soo (Presiding Justice)