의료기관 개설허가의 법적 성질 — 개인병원과 비영리병원에 대하여 —

This study seeks to identify the fundamental distinction between permission and concession based on the nature of the “duty” involved. Permission is granted for individual duties (private tasks), while concessions apply when public duties are carried out by private entities. The concept of a business concession is divided into two categories: the ‘concession as delegation of public authority’, which authorizes private actors to carry out state duties, and the ‘public service concession’, which enables private entities to provide socially beneficial services without direct administrative involvement. According to these criteria, the establishment permission for Physician-Owned Hospitals in Korea is classified as a formal granting of private rights intended to restore the individual’s right to freedom of occupation, despite certain discretionary elements such as the hospital bed quota system and the mandatory designation system for medical insurance providers. In contrast, the establishment and operation of non-profit hospitals represent the fulfillment of a public duty based on the objectives of the medical corporation system, which aims to enhance public healthcare, prohibit profit-seeking, and ensure social welfare through regulatory mechanisms like balanced supply-demand requirements, policy considerations for social necessity, and strong administrative controls. However, considering the legislative history, the intent discerned through statutory interpretation, the absence of delegation elements, and the failure to meet the subrogacy criterion, permission to establish non-profit hospitals cannot be classified as a “concession as a delegation of public authority.” Instead, such permissions align with a “public service concession,” where the inherently public nature of the mission justifies the state's economic oversight and policy-based intervention.