[Defendant] Defendant
[Appellant] Defendant
[Defense Counsel] Law Firm Weirdvise and one other
[Lower Court Judgment] Busan High Court Judgment (Changwon) 2019No204, dated January 27, 2021
[Order]
The guilty portion of the lower court judgment is reversed, and the case is remanded to the Busan High Court.
[Reasoning] The grounds for appeal are examined.
1. Regarding the victim of the fraud offense concerning medical care benefit costs
For the reasons stated in its judgment, the lower court determined that the victim of the medical care benefit costs fraudulently obtained by a non-medical person who established and operated a medical institution is the National Health Insurance Service, not the local government.
Examining the reasoning of the lower court judgment in light of the relevant legal principles and the record, there is no error in the lower court's determination that misapprehended the legal principles concerning the victim of the fraud offense regarding medical care benefit costs, such as to have affected the judgment.
2. Regarding the violation of the Medical Service Act (의료법) after around February 11, 2014
A. Summary of the charges in this part and the lower court's determination
Although the Defendant was not a doctor, etc., he decided to establish a medical institution by borrowing the name of a new non-profit corporation using part of the medical facilities and medical staff of (Hospital Name 1 omitted), a medical institution established on the 4th floor of a building located at (address omitted), Changwon City, and around February 11, 2014, obtained a permit to change the establishment permit matters under the name (Hospital Name 2 omitted), employed a doctor, non-indicted person, etc., and after obtaining a permit to change the establishment permit matters under the name (Hospital Name 3 omitted) on August 22, 2015, operated each of the above hospitals until around January 11, 2016, and from January 12, 2017 to around March 14, 2017.
For the reasons stated in its judgment, the lower court found the charges in this part guilty.
B. Relevant Legal Principles
In order to determine that a medical institution established under the name of a medical corporation was in substance established and operated by a non-medical person, it must be recognized, on the basis that the non-medical person took a leading role in the establishment and operation of the medical institution under the name of the medical corporation, that the non-medical person exploited the medical corporation—which retained only an outward form—as an unlawful means to disguise the establishment and operation of the medical institution as lawful.
Such circumstances may be recognized where a non-medical person exploited, as a means for establishing and operating a medical institution, a medical corporation whose substance is not recognized because no property contribution was actually made, or where the non-medical person deviated from the public and non-profit nature of the medical corporation by wrongfully diverting the property of the medical corporation (see Supreme Court en banc Decision 2017Do1807, decided July 17, 2023).
Meanwhile, it cannot be immediately concluded, based solely on circumstances such as a defect in the process of establishing the medical corporation or the fact that a non-medical person temporarily diverted the property of the medical corporation, that the non-medical person established and operated the medical institution in violation of the qualification requirements for establishing a medical institution. Rather, it must be determined, by comprehensively considering whether the defect in the establishment process of the medical corporation affected the permit for establishment of the medical corporation or reached a degree that rendered the establishment and operation of the medical institution substantially impossible, the extent, period, and circumstances of the diversion of the medical corporation's property, and whether there existed legitimate procedures such as a board of directors' resolution or proper accounting procedures, whether the normative essence of the medical corporation has been denied to such an extent that it can be evaluated as having been exploited as an unlawful means for establishing and operating the medical institution (see Supreme Court en banc Decision 2017Do1807, decided July 17, 2023).
C. Determination
1) In light of the above legal principles, together with the following circumstances recognized based on the reasoning of the lower court judgment and the record, the lower court's determination finding the charges in this part guilty cannot be upheld.
A) Since July 23, 2015, the Defendant has served as chairman of the board of the foundation ○○ (hereinafter "the medical corporation in this case"). Prior to that date, it appears that, following a resolution of the board of directors of the medical corporation in this case, the Defendant was appointed as unregistered general director or as the facility manager of (Hospital Name 2 omitted), and took a leading role in handling matters such as the management of medicines and medical facilities and the procurement of necessary funds for (Hospital Name 2 omitted) and (Hospital Name 3 omitted). However, according to the legal principles set forth above, such circumstances alone cannot conclusively establish that the Defendant established and operated (Hospital Name 2 omitted) and (Hospital Name 3 omitted).
B) The medical corporation in this case was already established on August 16, 2012. There is no circumstance found in the record suggesting that, from that time, it was established without any property contribution such that the establishment and operation of a medical institution was substantially impossible. Rather, it is difficult to exclude the possibility that, after its establishment, the medical corporation in this case additionally established and operated two other hospitals apart from (Hospital Name 2 omitted) and (Hospital Name 3 omitted), and that due to the sudden death of the then chairman of the board, the management of the remaining two hospitals other than (Hospital Name 2 omitted) and (Hospital Name 3 omitted) rapidly deteriorated, and the medical corporation in this case likewise became insolvent along with them.
Meanwhile, in the statement of assets of the simplified rehabilitation proceedings commenced against the medical corporation in this case approximately three years and five months after its establishment, it is stated that, of the total value of KRW 1,008,000,000 for the medical equipment and fixtures of (Hospital Name 3 omitted), only KRW 33,000,000 worth belongs to the medical corporation in this case and the remaining KRW 975,000,000 worth belongs to the Defendant. However, this is merely data showing the asset status of the medical corporation in this case at the time the simplified rehabilitation proceedings commenced, and in light of the circumstances in which the Defendant asserts that he was unable to locate the accounting materials regarding the medical equipment and fixtures at the time and thus was compelled to record them as his own property, it is also difficult to conclude, based solely on the content of the above statement of assets, that there was no property contribution with respect to the medical corporation in this case as of the time of its initial establishment, or that the establishment and operation of a medical institution was substantially impossible.
C) Although a total of approximately KRW 1,300,000 was withdrawn from the account under the name of the medical corporation in this case in the name of the Defendant's daughter's tuition fees and insurance premiums, in light of the circumstance that, after the account under the name of the medical corporation in this case was seized, the necessary expenses of (Hospital Name 3 omitted) appear to have been withdrawn from the account under the name of the Defendant's daughter for approximately two years, and the Defendant's assertion that he used the account under the name of his daughter in order to operate the medical corporation in this case, it also cannot be concluded, based solely on the circumstance of the withdrawal of approximately KRW 1,300,000 from the account under the name of the medical corporation in this case, that the Defendant, while involved in the establishment and operation of (Hospital Name 2 omitted) and (Hospital Name 3 omitted), commingled the property of the medical corporation in this case with his own personal property, or repeatedly used the property of the medical corporation in this case for his personal needs, or otherwise wrongfully diverted the property of the medical corporation in this case, thereby deviating from the public and non-profit nature of the medical corporation.
2) Nevertheless, the lower court found the charges in this part guilty based solely on the reasons stated in its judgment. Such determination by the lower court contains an error, which affected the judgment, in that it failed to carefully examine the elements necessary for the establishment of the offense of violating the Medical Service Act due to the establishment of a medical institution in violation of the qualification requirements for establishment, and thereby misapprehended the relevant legal principles and failed to conduct the necessary deliberation.
D. Scope of Reversal
For these reasons, the portion of the lower court judgment concerning the violation of the Medical Service Act after around February 11, 2014 must be reversed. Since the lower court, having found that the portion to be reversed and the remaining guilty portions were in the relationship of a single crime or concurrent crimes under the first clause of Article 37 of the Criminal Act (형법), imposed a single sentence, the entire guilty portion of the lower court judgment must be reversed.
3. Conclusion
Accordingly, without examining the remaining grounds for appeal, the guilty portion of the lower court judgment is reversed, and this part of the case is remanded to the lower court for further hearing and determination. This judgment is rendered as set forth in the Order, by the unanimous opinion of the participating Justices.
Justice Min Yu-suk (Presiding Justice), Justice Lee Dong-won, Justice Cheon Dae-yeop (Justice in Charge), Justice Kwon Young-jun