공동개설 의료기관에서 일부 개설자의 자격정지에 따른 의료업 금지의 효력 범위

Abstract

This paper analyzes the Supreme Court decision 2021Du58202 (May 30, 2024), which examined the scope of medical practice prohibition under Article 66(3) of the Medical Service Act. The Court ruled that when a co-founder of a jointly established medical institution has their license suspended for fraudulent billing, the effect of the sanction extends to the entire institution rather than being limited to the individual founder. However, this interpretation requires reconsideration as it insufficiently considers the legislative purpose of the Medical Service Act and the characteristics of jointly established medical institutions. The key terms in Article 66(3) - ‘medical institution’, ‘founder’, and ‘cannot practice medicine’ - are ambiguous in the context of jointly established medical institutions, necessitating a teleological interpretation. The Medical Service Act aims to protect and promote public health by providing high-quality medical services. Modern jointly established medical institutions serve as crucial vehicles for achieving this goal through collaboration among medical specialists, having evolved into specialized and divided organizations that enhance public welfare through efficient utilization of medical resources. In this context, suspending the entire institution’s operations due to one founder’s misconduct contradicts the Act’s legislative purpose. From a constitutional perspective, imposing sanctions on the entire jointly established medical institution violates both the principle of proportionality and culpability. While suspending the entire institution’s operations may contribute to maintaining medical order, suggesting a degree of appropriateness, it undermines the Act’s fundamental purpose of advancing public health. Less restrictive measures, such as department-specific sanctions or enhanced supervision, are available, violating the principle of minimum restriction. Moreover, the significant disadvantages - including restrictions on other medical professionals’ occupational freedom and disruption of public medical services - outweigh the public interest in maintaining medical order. Furthermore, jointly established medical institutions are characterized by horizontal relationships where medical professionals independently perform medical practices, making it unconstitutional to impose joint liability on other founders for one founder’s misconduct. In conclusion, Article 66(3) should be interpreted to restrict only the suspended founder’s medical practice and participation in institution management while protecting other co-founders’ rights to independent medical practice and management. This interpretation not only aligns with the Act’s legislative purpose and modern medical institutions’ characteristics but also complies with constitutional principles of proportionality and culpability, providing a balanced approach that meets practical medical field requirements.