의료법인 명의 의료기관 개설･운영에 대한 의료법상 규제에 관한 고찰 - 대법원 2023. 7. 17. 선고 2017도1807 전원합의체 판결을 중심으로 -

Abstract

Under the Medical Law, medical practice has a characteristic of serving public interest, so profitability should not be pursued. Therefore, in principle, medical institutions can only be opened by medical personnel and those who fall under each subparagraph of Article 33 (2) of the Medical Act. However, it takes a considerable amount of money to open a medical institution, so it is not easy for individual medical personnel to handle it. For this reason, a so-called "Non—medical personnel hospital", a form in which non-medical personnel raise the funds necessary to open medical institutions, open practical medical institutions, and hire medical personnel to operate medical institutions, appears. Previously, although a medical institution formally appeared to be a legitimate one, if a non-medical person took the lead in opening and operating a medical institution, the Supreme Court considered it to be an illegal non-medial person medical institution. However, in the case of medical corporations, Section 2 of Chapter 3 of the Medical Act is separately regulated, and in addition to those stipulated in the Medical Act, the provisions on foundations under the Civil Act are applied mutatis mutandis. Therefore, in the case of a medical corporation, a legal personality is given to the substance of the contributed property, and the establishment of a medical corporation is possible only when a third party contributes to the property. At this time, a third party who contributed property can become a non-medical person, and in this situation, the non-medical person can be evaluated as playing a leading role in the opening and operation of a medical institution in the name of a medical corporation. According to the "Law of Leadership" established by the Supreme Court, this results in a violation of the qualification to open a medical institution, which is directly contrary to the regulation that non-medical personnel can legally intervene under the medical law. Therefore, if a medical corporation complies with the prescribed regulations and procedures of a medical corporation under the Medical Act, there is a room for a differentiated judgment standard from other types of non—medical personnel hospital. It is reasonable that the majority opinion of the target judgment established a new additional standard for determining whether the opening and operation of medical institutions in the name of medical corporations is illegal. However, measures are required to prevent non-medical personnel from becoming a for-profit corporation by intervening in the operation of medical institutions for the purpose of pursuing profit. For example, it is necessary to consider directly and clearly controlling and sanction violations of the qualifications of medical institutions in the name of medical corporations through legislative procedures and inducing them to establish medical corporations in medical vulnerable areas through policies.