비의료인의 의료법인 명의 의료기관 개설자격 위반 판단 기준 - 대법원 2023. 7. 17. 선고 2017도1807 전원합의체 판결을 중심으로 -

The Medical Service Act strictly limits eligibility to establish medical institutions to medical professionals or public entities. Traditionally, the Supreme Court determined whether a medical institution established under the name of an individual medical professional was in fact opened and operated by a non-medical person lacking medical qualifications by examining whether the non-medical person handled the institution’s affairs in a leading position.However, because the medical corporation system is structured to involve non-medical persons, there has been a view that the previously established doctrine cannot be directly applied to cases involving medical institutions established under the name of a medical corporation. Prior to the decision at issue, the Supreme Court had not articulated clear criteria on this matter.Through the decision at issue, the Supreme Court held that, in order to recognize a violation of the eligibility requirements for establishing a medical institution under the name of a medical corporation, it must first be a leading position. In addition, there must be circumstances showing that a nonmedical person disguised the medical corporation as lawfully established and used it to circumvent the law. Such circumstances may be recognized if either (i) at the stage of incorporation, the non-medical person failed to make a substantive capital contribution and used a medical corporation lacking real substance as a vehicle for establishing and operating the institution, or (ii) at the operational stage, the nonmedical person improperly diverted the assets of the medical corporation, thereby deviating from its public and non-profit nature. The decision is significant in that it established standards that take into account the essential characteristics of medical corporations and the legislative purpose behind the system, thereby enhancing the principle of clarity and legal stability. However, a review of subsequent decisions reveals that, when applying these standards, some of the circumstantial evidence that had previously been regarded as important in similar cases involving medical institutions effectively operated by non-medical persons can no longer serve as grounds for recognizing violations of the eligibility requirements. As a result, a considerable number of cases in which defendants had been found guilty at the appellate level were reversed and remanded with a not-guilty disposition, effectively narrowing the scope of recognizing violations of the Medical Service Act.On the premise of the legal principles articulated in the judgment at issue, there is a need to establish new evaluative criteria for determining how to assess the probative value of the various circumstantial evidences from which a violation of the eligibility requirements for establishing a medical institution under the name of an existing medical corporation has been inferred, as revealed in the stages of the establishment and operation of a medical corporation, through the examination of specific cases. Furthermore, even where criminal punishment for violations of the Medical Service Act proves difficult, legislative discussion is necessary to establish criminal or administrative sanctions capable of regulating unlawful practices by such medical institutions, including excessive medical treatment and fraudulent claims for reimbursement of medical expenses.