Open Decision Ledger · Labour & industrial accidents
Who owes wages in a manager-run hospital: the real employment relationship
Supreme Court, Apr. 29, 2020, 2018Da263519 (judgment)
Case name: 임금등
Official text on the National Law Information Center
Question
Where a person who is not a medical practitioner employs a medical practitioner and opens a medical institution in that practitioner's name, does the non-practitioner owe the workers wages and severance although the labour contracts were concluded in the practitioner's name, and is that the same even when the agreement attributing the operation and profits of the institution to the non-practitioner is void under Article 33(2) of the Medical Care Act?
Holding
Yes on both counts. Who bears the obligation to pay wages and severance is decided by the real employment relationship, not by the form of the contract or the content of the relevant provisions, so a non-practitioner who runs the institution in a borrowed name and actually hires, directs and pays the workers is the employer. That conclusion stands even though the agreement attributing the operation and profits of the institution to the non-practitioner is void as contrary to the mandatory rule in Article 33(2) of the Medical Care Act.
Summary of the holding, verbatim
비록 의료인 명의로 근로자와 근로계약이 체결되었더라도 의료인 아닌 사람과 근로자 사이에 실질적인 근로관계가 성립할 경우에는 의료인 아닌 사람이 근로자에 대하여 임금 및 퇴직금의 지급의무를 부담한다고 보아야 한다.
Unofficial English translation
Even if an employment contract is concluded with an employee in the name of the medical professional, where a de facto employment relationship is established between the person who is not a medical professional and the employee, the person who is not a medical professional must be regarded as bearing the obligation to pay wages and retirement pay to the employee.
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 전주지방법원 합의부에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the collegiate panel of Jeonju District Court.
Form of the test
Elements stated Stated in the decision
계약의 형식이나 관련 법규의 내용에 관계없이 실질적인 근로관계를 기준으로 하여야 한다.
Unofficial English translation
Regardless of the form of the contract or the content of the relevant statutes and regulations, it must be based on the de facto employment relationship.
Factors
- 의료인이 아닌 사람이 의료인을 고용하여 그 명의를 이용하여 의료기관을 개설한 경우
- 의료인 명의로 근로자와 근로계약이 체결되었더라도
- 의료인 아닌 사람과 근로자 사이에 실질적인 근로관계가 성립할 경우에는
- 이른바 사무장 병원의 운영 및 손익 등이 의료인 아닌 사람에게 귀속되도록 하는 내용의 의료인과 의료인 아닌 사람 사이의 약정이 강행법규인 의료법 제33조 제2항 위반으로 무효가 된다고 하여 달리 볼 것은 아니다.
Unofficial English translation
• Where a person who is not a medical professional employs a medical professional and opens a medical institution using that person's name
• Even if an employment contract is concluded with an employee in the name of the medical professional
• Where a de facto employment relationship is established between the person who is not a medical professional and the employee
• The fact that an agreement between the medical professional and the person who is not a medical professional, providing that the operation and profits and losses, etc. of the so-called office manager hospital are attributed to the person who is not a medical professional, is void as violating Article 33 (2) of the Medical Service Act, which is a mandatory provision, does not warrant a different conclusion.
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 1999. 2. 9. 선고 97다56235 판결
Unofficial English translation
Supreme Court Decision 97Da56235 decided February 9, 1999
Decisions referred to
대법원 1999. 2. 9. 선고 97다56235 판결(공1999상, 451), 대법원 2012. 5. 24. 선고 2010다107071, 107088 판결
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
If both the doctor in whose name the institution was opened and the person who ran it in substance appear to have employed the same workers, must they bear the wage obligation jointly?
The judgment of the Jeonju District Court, sitting jointly, on remand will show how the real employment relationship is found on the record and what follows for the wage claim. A later decision on the joint liability of the nominee doctor, or an amendment to Article 33(2) of the Medical Care Act, would require this entry to be read again.
Cross-family AI independent reading & axis check
8 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on all 8 axes.
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Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Jeonju District Court, in its judgment of 16 August 2018 (2017Na13482), dismissed the plaintiffs' claim for wages and severance against the defendant. It reasoned that an agreement by which a person who is not a medical practitioner borrows a practitioner's name and has the operation and profits of the medical institution attributed to that person violates the mandatory rule in Article 33(2) of the Medical Care Act and is void, so that all benefits and debts arising from running the institution belong to Doctor A personally, making Doctor A rather than the defendant the employer obliged to pay.
Supreme Court standard: The Supreme Court held that this reasoning misread the law on the existence of a real employment relationship and on who bears the wage obligation in a manager-run hospital, an error that affected the outcome. The defendant, having left a pharmaceutical company, bought a building in Seocheon-gun, Chungnam through auction in the name of non-party 2, equipped it, employed Doctor A and another doctor on a monthly salary, obtained on Doctor A's name the permission to open the hospital on 27 September 2014 and ran it to 28 August 2015 as managing director, holding the bankbook and seal of the hospital account and paying the staff directly. A real employment relationship therefore arose between the plaintiffs and the defendant, and the obligation to pay wages and severance belonged to the defendant from the outset rather than deriving from the void agreement, so the judgment was reversed and the case remanded to the Jeonju District Court, sitting jointly.
Distinguishing conditions
- A case in which no real employment relationship arises between the worker and the person who is not a medical practitioner, for instance where the doctor genuinely hired, directed and paid the worker.
- A claim founded on the void agreement itself, since the Court held that the wage obligation belonged to the defendant from the outset and did not arise from that agreement.
- A claim other than wages and severance, which the Court did not consider in this decision.
Record verification notes
Assemble the facts that show who was the real employer: who recruited the staff, who gave them direct and concrete instructions, whose account received the insurance benefits and paid the salaries, and who held the seal. Then compare the criminal judgments in the file, since Doctor A was acquitted on 12 September 2016 (Daejeon District Court Hongseong Branch 2015GoDan1251, affirmed by Daejeon District Court 2016No2567) on the ground that the defendant was the real employer, while the defendant was convicted of wage arrears on 19 July 2017 (Daejeon District Court Hongseong Branch 2017GoDan31). Set against this entry any statutory change to Article 33(2) of the Medical Care Act.
From the official text
Points at issue
의료인이 아닌 사람이 의료인을 고용하여 그 명의를 이용하여 의료기관을 개설한 경우, 의료인 명의로 근로자와 근로계약이 체결되었더라도 의료인 아닌 사람과 근로자 사이에 실질적인 근로관계가 성립하면 의료인 아닌 사람이 근로자에 대하여 임금 및 퇴직금의 지급의무를 부담하는지 여부(적극) 및 이는 위와 같은 의료기관의 운영 및 손익 등이 의료인 아닌 사람에게 귀속되도록 하는 내용의 약정이 의료법 제33조 제2항 위반으로 무효인 경우에도 마찬가지인지 여부(적극)
Unofficial English translation
Whether, where a person who is not a medical professional employs a medical professional and opens a medical institution using that person's name, even if an employment contract is concluded with an employee in the name of the medical professional, the person who is not a medical professional bears the obligation to pay wages and retirement pay to the employee where a de facto employment relationship is established between the person who is not a medical professional and the employee (affirmative), and whether the same holds true even where an agreement providing that the operation of such medical institution and profits and losses, etc. are attributed to the person who is not a medical professional is void as violating Article 33 (2) of the Medical Service Act (affirmative)
Summary of the holding
근로기준법상 근로자에 해당하는지는 계약의 형식과는 관계없이 실질에 있어서 임금을 목적으로 종속적인 관계에서 사용자에게 근로를 제공하였는지에 따라 판단하여야 하고, 반대로 어떤 근로자에 대하여 누가 임금 및 퇴직금의 지급의무를 부담하는 사용자인가를 판단함에 있어서도 계약의 형식이나 관련 법규의 내용에 관계없이 실질적인 근로관계를 기준으로 하여야 한다. 의료인이 아닌 사람이 월급을 지급하기로 하고 의료인을 고용해 그 명의를 이용하여 개설한 의료기관인 이른바 ‘사무장 병원’에 있어서 비록 의료인 명의로 근로자와 근로계약이 체결되었더라도 의료인 아닌 사람과 근로자 사이에 실질적인 근로관계가 성립할 경우에는 의료인 아닌 사람이 근로자에 대하여 임금 및 퇴직금의 지급의무를 부담한다고 보아야 한다. 이는 이른바 사무장 병원의 운영 및 손익 등이 의료인 아닌 사람에게 귀속되도록 하는 내용의 의료인과 의료인 아닌 사람 사이의 약정이 강행법규인 의료법 제33조 제2항 위반으로 무효가 된다고 하여 달리 볼 것은 아니다.
Order
원심판결을 파기하고, 사건을 전주지방법원 합의부에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the collegiate panel of Jeonju District Court.
Provisions referred to
근로기준법 제2조 제1항 제1호, 제2호, 의료법 제33조 제2항
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