[2] In exceptional cases where the so-called “voluntary non-payment treatment” does not constitute “when receiving medical care benefit costs from a policyholder, etc. or causing the policyholder, etc. to bear such costs by deceit or other unlawful means” under Article 52(1) and (4) of the former National Health Insurance Act, and where the burden of proof is borne (=medical care institution)

[3] In a case where the National Health Insurance Corporation and the Minister of Health and Welfare rendered a decision on return of unjust enrichment and imposition of penalty surcharges on the ground that a university hospital affiliated with the school foundation Gap used blood disease patients in violation of the criteria for medical care benefits, such as permission of the Commissioner of the Korea Food and Drug Administration, and separately calculates expenses for medical care materials that cannot be separately calculated according to the criteria for calculation of medical care benefits, etc. and received expenses from the subscribers, etc., on the ground that the act constitutes “the act of receiving medical care benefits by fraud or other improper means or causing the subscribers, etc. to bear such expenses,” the case holding that the judgment below erred in the misapprehension of legal principles as to the requirements for recognizing voluntary non-

[4] In a case where the National Health Insurance Corporation rendered a decision to recover unjust enrichment on the ground that the National Health Insurance Corporation's provision of Article 52 (1) of the former National Health Insurance Act provides that "when the National Health Insurance Corporation receives medical care benefit costs or causes the subscriber, etc. to bear such costs by fraud or other improper means, the case affirming the judgment below holding that it does not constitute "when it receives medical care benefit costs from the subscriber, etc. or causes the subscriber, etc. to bear such costs by fraud or other improper means," which affected the patient, etc. to bear the selective medical care costs under the comprehensive delegation of the National Health Insurance Act

[Dissenting Opinion by Justice Jeon Soo-ahn] If a patient wants to receive the best treatment beyond the basic medical care benefits provided as a medical care benefits and the treatment cannot be provided in the national health insurance for the sake of the limitation of the insurance finance, it is proper to allow the patient to receive the medical care benefit under a contract between the medical care institution and the patient outside the framework of the national health insurance. Unlike this, restricting the opportunity to receive such medical care benefits would rather go against the purport of the former National Health Insurance Act. Article 9 [Attachment 2] of the former Regulations on the Standards for Medical Care Benefits lists non-benefit items. If it is interpreted to be limited to those items, it goes beyond the delegation scope of the mother law. Article 52(1) and (4), and Article 85(1)1 of the former National Health Insurance Act provides that “When the medical care institution receives the medical care benefits from the subscribers, etc. or bears them to the subscribers, etc. by fraud or other improper means, it does not constitute a limitation of the right to receive medical care benefits under a contract between the National Health Insurance Corporation and the National Health Insurance Corporation.”

[2] [Majority Opinion] Even in cases where a medical care institution conducts voluntarily non-benefit medical care outside the framework of the National Health Insurance Act and received expenses from a subscriber, etc., ① In such a situation where there is no procedure such as inclusion of it into a medical care benefit subject or non-benefit within the national health insurance framework or reasonable adjustment of the relevant medical care benefit cost, or where such procedure is in place, it is difficult to deem that the medical care institution avoided it in light of specific circumstances, such as the content and urgency of non-benefit medical care treatment and urgency along with the procedure, the required period, and the process of proceeding, etc., as well as the medical safety and effectiveness, and (3) if the medical care institution obtained the consent of the subscriber, etc. to receive the medical care benefit from the policyholder, etc. at its own expense by sufficiently explaining the contents and cost in advance, it cannot be deemed that such case constitutes “when the medical care institution receives the medical care benefit from the policyholder, etc. or bears it to the subscriber, etc.” Provided, however, the medical care institution asserts that it is unreasonable should prove the legality of the disposition in question.

[Dissenting Opinion by Justice Kim Nung-hwan, Justice Park Poe-dae, and Justice Kim Yong-deok] Even in the so-called “medical care benefits” and “legal non-medical care benefits” (or “legal non-medical care”), which are explicitly recognized under the former National Health Insurance Act and the former National Health Insurance Act and subordinate statutes, if it is acknowledged that there are circumstances that not only medical stability and effectiveness, but also medical care needs to be provided beyond the standards for recognition of medical care benefits, it shall not be deemed that the case constitutes “when the medical care benefits are received or caused to be borne by the medical care institution by fraud or other improper means.” However, the Majority Opinion agrees to the purport that the Majority Opinion’s position that the burden of proof should be proved by the medical care institution and that the disposition agency is out of the burden of proof as to the reason for disposition that it constitutes “the case where the medical care benefits are received or caused to be borne by the medical care institution by fraud or other improper means” should still be assumed by the disposition agency in charge of extra-court medical treatment, like ordinary cases.

[3] The case holding that the court below erred in the misapprehension of the legal principle as to the burden of proof and the case holding that, in a case where the National Health Insurance Corporation and the Minister of Health and Welfare impose a penalty surcharge on the ground that the medical care institution provided medical treatment outside the medical care benefit standard and received the expenses from the insured, etc. on the ground that the medical care institution provided medical treatment outside the medical care benefit standard and received the expenses separately, or received the expenses from the insured, etc. in violation of the medical care benefits standard such as those permitted by the Commissioner of the Korea Food and Drug Administration, and separately calculated the expenses for medical treatment materials that cannot be calculated according to the calculation standard of the medical care benefits, etc. for the blood-related patients, such as White-related diseases, and received the expenses from the insured, etc., on the ground that the medical care institution Gap operated the hospital, which is a medical care institution for the medical care institution, should have deliberated and determined whether the medical treatment conducted by the hospital Gap in accordance with the legal principles with the burden of proof and the burden of proof.

[4] In a case where the National Health Insurance Corporation (hereinafter “National Health Insurance Corporation”) rendered a decision to recover unjust enrichment on the ground that the National Health Insurance Corporation received medical care costs from or caused the subscriber, etc. to receive the costs of selective health care in a private or other unlawful manner” under Article 52(1) of the former National Health Insurance Act (amended by Act No. 8034, Oct. 4, 2006) that a university hospital affiliated with the school foundation Gap received comprehensive delegation of the matters concerning selective health care from a patient, etc. with respect to the selective health care from a patient, etc., and received the delegation of the doctor in charge of selective health care to the patient in charge of selective health care and selective health care, the case affirming the judgment below that the patient’s primary and selective health care was not subject to the delegation of the doctor in charge of selective health care to the patient in charge of the patient, etc., while requesting the patient, etc. to undergo the procedure of explaining the patient, etc. in the process, and that the patient in charge of selective health care was not subject to prompt and efficient medical care, etc.

1. As to the misapprehension of legal principles as to the legality of medical care benefit recognition criteria or medical care benefit calculation criteria different from those of medical care benefit costs (the so-called “non-medical care treatment”).

(a) first outlines laws and regulations governing national health insurance;

(1) Article 36(3) of the Constitution declares the State’s duty to protect all citizens’ health, and the former National Health Insurance Act (amended by Act No. 8034, Oct. 4, 2006; hereinafter the same) provides citizens with insurance benefits for the prevention, diagnosis, medical treatment, rehabilitation of diseases and injury, childbirth, death, and improvement of health, thereby improving citizens’ health and promoting social security (Article 1).

(2) According to the former National Health Insurance Act, every citizen who resides in the Republic of Korea naturally becomes a policyholder of the health insurance or his/her dependent (hereinafter “subscriber, etc.”). Meanwhile, all medical institutions established under the Medical Service Act, and all pharmacies registered under the Pharmaceutical Affairs Act, etc., as health care institutions, shall provide health care benefits, which are the main insurance benefits for the health insurance, to the policyholders, etc. on behalf of the insurer of the health insurance, on behalf of the National Health Insurance Corporation, and shall not refuse to provide health care benefits without justifiable grounds unless they are excluded from the health care institutions (Article 40(1) and

Medical care benefits refer to diagnosis and examination, provision of medicine and materials for medical treatment, treatment, surgery, and other medical treatment, prevention, rehabilitation, hospitalization, etc. of insured persons, etc. The former National Health Insurance Act delegated the standards for medical care benefits to the Minister of Health and Welfare (Article 39(1) and (2)). According to delegation, the former Rules on the Standards for Medical Care Benefits under the National Health Insurance (amended by Ordinance of the Ministry of Health and Welfare No. 377 of December 29, 2006; hereinafter “former Rules on Medical Care Benefits”) provides general standards for the standards and methods of medical care benefits (Article 5(1) and attached Table 1), and requires the Minister of Health and Welfare to determine and publicly announce the standards after hearing opinions of the Medical System, the National Health Insurance Corporation, and the Health Insurance Review and Assessment Service (Article 5(2)). The Minister of Health and Welfare prescribed the detailed standards for the criteria and methods of medical care benefits application (Article 10 of the former Rules on the Standards and Methods of Medical Care Benefits).

In principle, the “unit price of the point of relative value of health care benefit” determined by a contract between the president of the National Health Insurance Corporation and the person representing the medical industry, which is determined by the Ministry of Health and Welfare, shall be calculated by applying the point of relative value publicly notified by the Ministry of Health and Welfare from the Act on Health Insurance and the point of relative value thereof, and generally borne by the National Health Insurance Corporation and the person who receives health care benefit (Article 41, 42, etc. of the former National Health Insurance Act). Article 42(7) of the former Enforcement Decree of the National Health Insurance Act (amended by Presidential Decree No. 19818, Dec. 30, 2006) stipulates that the point of relative value of the health care benefit computed by considering the quantity of resources such as time and effort required for health care benefit, human resources, facilities, equipment, etc. and the risk of the health care benefit shall be determined and publicly notified by the Minister of Health and Welfare after deliberation by the Health Insurance Deliberation and Regulatory Committee, and Article 12(1) of the former Rules on Health Care Benefit Standards shall be unreasonable.

(3) In determining the criteria for medical care benefits, the former National Health Insurance Act provides that the Minister of Health and Welfare may exclude a disease that does not impede business or daily life and other matters determined by the Ordinance of the Ministry of Health and Welfare from the subject of medical care benefits (Article 39(3)). According to the delegation, where the former rules on medical care benefits do not interfere with business or daily life, and it is difficult to recognize it as medical care benefits in light of the health care benefits policy, the former rules on medical care benefits do not separately stipulate the treatment treatment to which the health insurance is not applied (the so-called “legal non-medical treatment”) by classifying medical treatment (the so-called “

In addition, Article 39(1) of the former National Health Insurance Act provides that the scope of health care benefit (the subject of health care benefit) shall be all matters except the subject of non-benefit under Article 9 of the former Regulations on the Standards for Health Care Benefits (Article 39(2) of the National Health Insurance Act and Article 8(1) of the former Regulations on the Standards for Health Care Benefits). In addition, Article 39(2) of the former National Health Insurance Act provides that a health care institution shall not claim for expenses such as deposit for hospitalization, in addition to the payment of the amount of health care benefit or non-benefit to the subscriber, etc. (Article 41 of the former National Health Insurance Act and the latter part of Article 22(2) of the former Enforcement Decree

Furthermore, Articles 52(1) and (4), 85(1)1, and 85(2) of the former National Health Insurance Act provide that the Defendant National Health Insurance Corporation shall collect from the relevant health care institution the “when the health care institution receives the health care benefit from the policyholder, etc. by deceit or other unlawful means” and that “when the health care institution causes the health care institution to bear the costs of health care benefit from the policyholder, etc. by deceit or other improper means,” the Defendant may impose and collect penalty from the relevant health care institution in lieu

B. Under the relevant legal system, the above “defensive and unfair methods” under the former National Health Insurance Act should be interpreted and applied as follows.

(1) The National Health Insurance System is designed to promote public welfare by providing medical treatment with effective and medically safe and effective medical treatment in preparation for costs to the subscribers, etc. within the limit permitted by the National Health Insurance Finance, as medical care benefits, and allowing all citizens to enjoy the insurance benefits in universal.

Based on the purport of such a system, the statutes governing national health insurance include: (a) all types of medical treatment as a matter of principle; (b) the standards and methods for the application of medical treatment benefits; and (c) the standards and methods of the application of the former Regulations on the Standards for Medical Care Benefits; and (d) if any new form of medical treatment not prescribed therein or unreasonable points exist in the existing standards for medical care benefits, such treatment shall be included in the subject of medical care benefits; and (c) the so-called statutory non-benefit treatment under Article 9 [Attachment 2] of the former Regulations on the Standards for Medical Care Benefits shall be construed as excluding it from health insurance coverage; and (d) the burden of expenses is borne only for the part thereof between the health care institution and the insured, etc. In principle, health care institutions shall provide health care benefits in accordance with the standards and procedures for the recognition standards of health care benefits unless non-legal treatment is provided in accordance with the standards and procedures prescribed in the Act on the Standards for Medical Care Benefits, and the payment of health care benefits from insurers, subscribers, etc.

Therefore, it is in violation of the above criteria even in cases where a medical care institution violates such criteria and procedures, or receives medical care benefit costs from a policyholder, etc. in excess of such criteria and procedures, and arbitrarily provides non-benefit medical care treatment without complying with such criteria and procedures, and receives medical care benefit from a policyholder, etc. by mutual agreement between the subscriber, etc. and the subscriber, etc., and thus, constitutes “when it receives medical care benefit costs from a policyholder, etc. or causes the subscriber, etc. to bear them by fraud or other improper means” as provided in Articles 52(1), (4), and 85(1)1 and (2) of

(2) However, on the other hand, medical personnel and the head of a medical institution are obligated to provide the best medical treatment according to the medical treatment contract concluded with the insured, etc., and as provided in Article 4 of the former Medical Service Act (amended by Act No. 8067 of Oct. 27, 2006; hereinafter the same) as stated in the above, they are obligated to provide the patient with the best medical service by improving the quality of medical care, preventing hospital infection, etc., and patients including the insured have the right to receive effective and appropriate medical treatment without any excessive cost burden on the patient, injury, etc.

However, even if the medical care institution arbitrarily conducts non-benefit treatment and receives the expenses from the insured, etc., the circumstance in which it cannot be deemed unfair should be proved by the medical care institution, which is the side of the assertion. This is because in an appeal litigation, the burden of proving the legality of the relevant disposition, in principle, is in the disposition agency claiming the legality of the relevant disposition. However, if there is proof to the extent that the disposition agency reasonably accepts the legality of the relevant disposition, the disposition is justifiable, and it is reasonable to deem that the assertion and proof of exceptional circumstances return to the other party (see Supreme Court Decisions 84Nu124, Jul. 24, 1984; 2009Du1505, Sept. 8, 201, etc.).

In contrast, Supreme Court Decision 2006Du10368 Decided June 15, 2007, which held that, in cases where a health care institution provides health care benefit to the insured, etc. of health insurance and collects the relevant expenses, it must conform to the standards and procedures prescribed by relevant Acts and subordinate statutes, and otherwise, it constitutes “where the health care institution imposes health care benefit costs on the insured, etc. by fraud or other improper means” without exception, all of the Supreme Court decisions, including Supreme Court Decision 2006Du10

(3) As such, as a health care institution is able to exceptionally conduct non-benefit treatment outside the framework of the national health insurance, and receive the relevant medical expenses from the subscribers, etc., it may be favorable for the health care institution to provide non-benefit treatment for various motives, such as profit-making tools and avoidance of health care benefit costs examination. As a result, the insured, etc. may have infringed on the right to enjoy health insurance benefits and thus increase the burden of medical expenses. If its scale or degree is so serious, it is difficult to deny the possibility of serious damage to the effectiveness of the national health insurance system, and furthermore, it is likely that the exceptional recognition of non-benefit treatment act outside the framework of the national health insurance should be done with caution. In addition, in light of such circumstances, where the health care institution arbitrarily conducts non-benefit treatment on the grounds of medical necessity, etc. and received the expenses from the subscribers, etc., it is necessary to introduce a procedure to make the health care institution report the details thereof to the Health Insurance Review Board, etc., and in principle, it is possible to regulate the medical treatment and other non-benefit treatment act.

C. We apply this interpretation to this case.

The lower court determined to the effect that it was unlawful to impose the instant penalty surcharge and impose unjust enrichment on the part of the Plaintiff on the following grounds: (a) the Plaintiff’s medical treatment in violation of the criteria for medical care benefits, such as the permission of the Commissioner of the Korea Food and Drug Administration, and the type of medical treatment materials received from the subscribers, etc., separately calculated expenses that cannot be separately calculated in accordance with the criteria for calculating medical care benefit costs; and (b) the Plaintiff’s hospital’s medical treatment act is not unfair, such as failing to make separate profits; (c) however, (d) the Plaintiff’s specific examination of the circumstances and the Plaintiff’s medical treatment act constituted “the case where the Plaintiff received medical care benefits from the subscribers, etc. or charged them to the subscribers, etc. by fraud

In light of the aforementioned legal principles, such determination by the court below is reasonable in view of the following: (a) the medical care institution provides medical treatment outside the medical care benefit standard and provides the relevant medical treatment expenses from the subscriber, etc.; or (b) separately calculated and paid the expenses of the materials for medical treatment that cannot be separately calculated on the basis of the calculation basis of the medical care benefit cost. However, since the burden of proof that such exceptional cases constitute the Plaintiff’s medical care institution operates the Plaintiff hospital, the court below should have deliberated and determined whether the medical care act conducted by the Plaintiff hospital in accordance with the legal principle of the burden of proof was unlawful. Therefore, the court below erred by misapprehending the legal principles on the requirements to acknowledge exceptional cases and the burden of proof to the effect that each disposition of this case was unlawful, without examining whether the medical care act conducted by the Plaintiff hospital constitutes such case.

2. As to the misapprehension of legal principles as to the legality of comprehensive delegation of selective medical examination and treatment

According to the former Medical Service Act, a patient or his/her guardian (hereinafter “patient, etc.”) may select a specific doctor, etc. of a elective medical institution as prescribed by Acts and subordinate statutes, such as a general hospital. In such cases, the head of the medical institution shall, barring any special circumstance, have the patient, etc. request the medical doctor, etc. to provide elective medical treatment. While the head of the medical institution, in principle, is unable to collect additional expenses from the patient, etc., even if elective medical treatment was provided, but where elective treatment was provided by meeting certain requirements exceptionally, additional expenses may be collected (Article 37-2(1), (3), and (4)). The former Medical Service Act delegates to the Minister of Health and Welfare the qualification requirements for doctors, etc. of a medical institution capable of collecting additional expenses, the items and criteria for calculating additional expenses, and other necessary matters (Article 37-2(5)). Accordingly, the former Rules on Optional Medical Treatment (amended by Ordinance of the Ministry of Health and Welfare No. 78, Nov. 28, 2008>

The lower court, based on its adopted evidence, found the facts as indicated in its reasoning. (1) According to the Plaintiff hospital’s selective medical treatment application form, it is possible for the patient, etc. to separately file an application for selective medical treatment subject and the doctor in charge of selective medical treatment to select an doctor in charge of selective medical treatment. However, the lower court determined that: (a) the Plaintiff hospital’s consent was given to the patient, etc. requesting selective medical treatment through such selective medical treatment form, and delegated the patient, etc. to the doctor in charge of selective medical treatment in charge of selective medical treatment to the patient, etc. by the patient, etc.; (b) during the process, the patient, etc. was provided with explanation to the patient, etc.; and (c) the doctor in charge of selective medical treatment at the principal department was provided with examination, visual examination, radiation treatment, etc.; and (d) determined that the patient, etc. was not subject to comprehensive delegation of selective medical care benefits to the patient’s doctor in charge of selective medical treatment from the National Health Insurance Act, etc.; and (e) determined that there was no need for prompt and efficient treatment of selective medical treatment by the patient.

In light of relevant statutes and records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the legality of selective medical care, and the ground of appeal as to selective medical care costs is just that the court below erred in the deliberation of evidence or fact-finding, and thus, it cannot be accepted.

3. Conclusion

(1) The disposition of collecting unjust enrichment by Defendant National Health Insurance Corporation is a disposition that can be partially revoked for each item subject to the disposition. As seen above, the part concerning selective medical fees in the disposition ought to be revoked illegally. However, the remainder of the part is legitimate unless the Plaintiff hospital proves exceptional circumstances, which are not deemed unjust even if it arbitrarily provides non-benefit treatment and receives the expenses from the subscribers, etc., and thus, it is not unlawful and revoked without Plaintiff’s assertion and proof. The lower court erred by maintaining the first instance judgment that revoked the disposition of collecting unjust enrichment of this case, solely on the basis of its reasoning, by deeming the remainder, excluding the part concerning selective medical fees, among the disposition of collecting unjust enrichment of this case as unlawful.

(2) Of the grounds for the imposition of the penalty surcharge imposed by the Defendant, the part concerning the wrongful receipt of medical care benefit costs under the name of selective medical care costs is unlawful. The Defendant’s Minister of Health and Welfare, at least the amount of unjust enrichment, shall exercise the discretionary power to calculate the amount of the penalty surcharge, excluding this part of unjust enrichment, and thus, the instant imposition of the penalty surcharge is bound to be revoked in its entirety. Ultimately, the lower court’s conclusion is justifiable to have maintained the first instance judgment revoking the imposition of the penalty surcharge in entirety on the ground that the instant disposition was unlawful. As seen earlier, the lower court’s

(3) Therefore, without further proceeding to decide on the remaining grounds of appeal, the part of the judgment below regarding Defendant National Health Insurance Corporation, excluding unjust enrichment collection concerning selective health care costs, shall be reversed, and this part of the case shall be remanded to the court below for further proceedings consistent with this Opinion. The remainder of the appeal by Defendant National Health Insurance Corporation and the appeal by Defendant Ministry of Health and Welfare shall be dismissed, and the costs of appeal by Defendant Ministry of Health and Welfare shall be borne by the

Except for the dissenting opinion of Justice Kim Nung-hwan, Justice Park Poe-dae, and Justice Kim Yong-deok as to the provision of paragraph (1) above, there is a separate dissenting opinion by Justice Jeon Soo-ahn.

4. Dissenting Opinion by Justice Kim Nung-hwan, Justice Park Poe-dae, and Justice Kim Yong-deok

A. We agree with the majority opinion that the so-called “medical care benefit” and “legal non-medical care benefit”, which are not explicitly recognized by the former National Health Insurance Act and subordinate statutes, should be deemed not to fall under “the time when the medical care benefit amount is received or the burden of payment is paid,” in cases where circumstances such as whether the medical care benefit amount was required to be provided beyond the medical stability and validity as well as to meet the medical necessity to be provided beyond the standards for recognition of medical care benefit, etc., are acknowledged, unlike other medical care treatments.”

B. However, it is difficult to agree with the purport that the Majority Opinion, which forms the basis for denying that a person falls under “private or other unlawful means,” should prove the burden of proof by a medical care institution, and that the disposition agency goes against the burden of proof as to the reason for disposition that the disposition constitutes “private or other unlawful means.” The reason for disposition that falls under “when a medical care benefit cost is received or has been borne by a medical care institution in a private or other unlawful manner” is as follows: (a) as in general, it is difficult to agree with the purport that the disposition agency still bears the burden of proof

(1) In the case of an administrative disposition actively exercising the authority of an administrative agency, it is interpreted that the disposition agency that issued the disposition bears the responsibility for proving the legality of the administrative disposition. Accordingly, the Supreme Court has held that the defendants, the disposition agency claiming the legality of the relevant disposition, on the grounds that the requirements for the disposition of collecting unjust enrichment under Article 52(1) of the former National Health Insurance Act, or the disposition of imposing a penalty surcharge in lieu of the suspension of business of a medical care institution under Article 85(1)1 and (2), are met. Furthermore, the Supreme Court has held that the above disposition can be immediately conducted on the ground that the medical care institution did not comply with the criteria for recognition of medical care benefits or the criteria for calculation of medical care benefits under Acts and subordinate statutes and received excessive costs, not by the medical care institution's fraud or other improper means (see, e.g., Supreme Court Decisions 2004Du8613, Nov. 25, 2004; 2002Du68986, Sept. 118, 2008).

Therefore, inasmuch as the Majority Opinion deems that, unlike the criteria for recognition of medical care benefits and the criteria for calculation of medical care benefits under the former National Health Insurance Act, medical treatment outside the court received medical care benefits by performing medical treatment, it does not necessarily constitute “when receiving or causing to bear medical care benefits by deceit or other wrongful means,” the former Supreme Court’s determination that the aforementioned requirements are met, as in the case of other medical care benefits that do not comply with the criteria for recognition of medical care benefits or the criteria for calculation of medical care benefits, the burden of proving that other medical care benefits in question

(2) (A) In imposing a certain disadvantage or punishment under various administrative statutes, the term “in a case where a certain disadvantage or punishment is imposed” is a normative norm. The concept of “fashion” and “unfair method” is a normative norm, and it cannot be uniformly determined whether an act lacking legitimacy constitutes it. In the end, the purpose and effect of the relevant administrative statute’s enactment purpose, purport and effect of the provision imposing a disadvantage or punishment, details of the act in question and the circumstances leading to the act in question, social recognition and evaluation of the act in question, need to impose a disadvantage or punishment, and equity, etc. should be comprehensively assessed and determined.

(B) As seen in the Majority Opinion, the issue of extra-legal medical treatment is caused by the statutory provision of medical care benefits and medical care benefit costs under the former National Health Insurance Act, and the statutory provision of non-medical care benefits is limited.

The State or the National Health Insurance Corporation shall ensure that the maximum medical care benefits are provided within the scope permitted by the finances of the National Health Insurance Act. Furthermore, the standards for recognition of medical care benefits and the standards for calculation of medical care benefits are reasonably determined by comprehensively taking into account the medical safety, effectiveness and necessity of medical care, economic feasibility, etc. Meanwhile, the former Regulations on the Standards for Medical Care Benefits established upon delegation under Article 39(3) of the former National Health Insurance Act also provide types of non-legal care benefits excluded from the scope of medical care benefits. Therefore, the non-legal care benefits cannot be freely permitted. In this regard, unlike other medical care treatments at issue, unlike the other medical care cases at issue, it is more problematic whether the above standards are appropriate to determine whether medical care benefits and the standards for criteria for recognition of medical care benefits. Accordingly, there is a need to request the medical personnel in charge of such medical care to submit data on the circumstances that cannot be seen as the above requirements in the Majority Opinion for its examination.

However, in a case where a patient requests a medical person to provide medical treatment and begins to provide medical treatment in compliance with the request, medical contract is established between the medical person and the patient. Under a medical contract, a medical person bears the duty to provide medical treatment and treatment by using all medical knowledge and medical technology for the treatment of a disease, and the patient bears the duty to pay remuneration to the patient. In response to the progress of a disease and changes in the patient’s condition, the contents and scope of medical treatment are outlined and abstract at the time of the contract. However, given that the contents of medical treatment provided are embodied after the disease confirmation, the patient’s health condition and natural change, and biological reaction by the medical treatment, etc., the medical person has considerable discretion to choose the method of treatment as appropriate based on his/her knowledge and experience (see Supreme Court en banc Decision 91Da23707, May 12, 1992; Supreme Court en banc Decision 2009Da14717, May 21, 2009).

Therefore, although a medical person must submit data that can prove the legitimacy of his/her out-of-court medical treatment, this means the need for proof, and on that basis, it cannot be said that a medical person bears the burden of proving that he/she does not fall under the “private or other improper means” is equivalent to the case of general medical care benefits. The Majority Opinion has cited that the assertion and proof of exceptional circumstances contrary to the legality in an appeal litigation return to the other party. However, the Majority Opinion argues that the burden of proof of legality can only be deemed to have expressed the necessity of assertion and proof of exceptional circumstances on the premise that the disposition agency bears the burden of proof, and it cannot be said to have denied the burden of proof of the disposition agency’s legality. Therefore, it does not conflict with the above interpretation.

Rather, the disposition agency should conduct a normative assessment as to whether the given medical treatment constitutes “when receiving or causing to bear medical care benefit costs by fraud or other improper means” in light of the medical stability, validity, and necessity of the given medical treatment, compliance with the relevant procedures, and the degree of legitimacy of the given medical treatment that may be recognized by the given circumstances, such as the consent of the subscriber, etc., of the given medical treatment which are recognized by the materials submitted by the medical personnel. Ultimately, the disposition agency bears the burden of proving the above requirements, and where it is deemed that the given agency’s result of such normative assessment falls short of “the fraudulent or other improper means”, it is reasonable to view that the given requirements are not satisfied, and thus, the disposition imposing unjust enrichment, suspension of business, or penalty surcharge equivalent thereto cannot be imposed.

(3) If the agency bears the burden of proving “private or other improper means” as such, a counter-appeal may be raised against the agency that takes an excessive administrative burden.

However, medical stability, validity, and necessity of medical treatment is always a problem in relation to the medical care obligation and duty of care of the medical personnel in the contract for medical treatment. Therefore, it cannot be said that the National Health Insurance Corporation specializing in dealing with national health insurance and medical care benefits has an excessive burden on allowing the medical personnel to conduct a normative examination as to whether the medical treatment constitutes “private or other unlawful methods.” Furthermore, since the former National Health Insurance Act and the current National Health Insurance Act have procedures such as decision on new medical technology, etc. that may be incorporated into the medical care benefits subject to the medical care benefits, a detailed examination is conducted in regard to the medical safety, effectiveness, and necessity during the process of undergoing the procedure. As a result of the examination after the medical treatment, the legitimacy of the medical treatment transferred into the medical care benefits subject to the medical care benefits can be easily recognized. On the other hand, even if the medical personnel were excluded from the medical care benefits subject to the medical care benefits subject to the medical care benefits and the medical care benefits subject to the medical care benefits subject to the medical care benefits subject to the examination, and in order to do so,

In addition, if there is no procedure for inclusion in the medical care benefits as above or requires a long period of time to go through the procedure and the examination of the medical treatment is practically refused, it is contrary to the purport of the former National Health Insurance Act to improve the public health. Therefore, it is difficult to deem that it is unreasonable to impose the burden on the agency regarding the examination on the premise that there is a need for medical personnel to prove the legitimacy of exceptional medical treatment.

C. In this case, the court below accepted the judgment of the court of first instance, and revoked each of the above dispositions on the grounds that the Defendants’ act of receiving medical care benefit costs, etc. is unlawful in light of the medical feasibility, prior explanation, and consent, etc. in light of the circumstances as stated in its holding, in the case of non-legal treatment other than the type of collection of expenses for medicines in violation of the payment standard of the Plaintiff hospital, and the separate type of collection of expenses for materials for medical treatment, etc.

Ultimately, the judgment below is in accordance with the legal principle of the burden of proof as to the disposition of collecting unjust enrichment under the former National Health Insurance Act, and there is no error of misapprehending the legal principle as to the burden of proof or failing to exhaust all necessary deliberations as pointed out in the majority opinion.

In addition, in the instant case, the imposition of unjust enrichment and penalty surcharge was conducted on the same ground of extra-legal treatment. Among them, if there is room for an administrative agency to determine the discretion of the administrative agency, it is appropriate to determine the scope of the extra-legal treatment in the instant case at once once, from the same standard, whether the scope of the non-legal treatment in the instant case constitutes “private or other wrongful act.” Thus, the lower court’s revocation of each of the instant dispositions is more consistent with the efficiency and the economy of litigation.

Therefore, unlike the majority opinion, it is reasonable to dismiss the appeal regarding non-legal treatment in addition to the part concerning selective medical treatment costs among the appeals filed by Defendant National Health Insurance Corporation, in terms of legal and procedural efficiency. We express our dissent from the majority opinion.

5. Dissenting Opinion by Justice Jeon Soo-ahn is as follows.

A. In principle, the Majority Opinion: (a) only the non-benefit medical treatment provided for in Article 9 [Attachment 2] of the former Regulations on Medical Care Benefit Standards refers to the burden of expenses between the medical care institution and the subscriber, etc.; and (b) other medical treatment should be provided as a medical care benefit within the framework of the National Health Insurance. However, only in cases where the medical care institution proves that there are such circumstances as presented, it does not constitute “when it receives medical care benefit from a policyholder, etc. or causes the subscriber, etc. to bear it by fraud or other improper means” but it cannot be agreed on the following grounds

(1) The majority opinion pointed out that the national health insurance system provides medical treatment with effective and medically safe and effective medical treatment in preparation for costs to the subscribers, etc. within the permissible limit of the national health insurance finance, and that it is a system to promote public welfare by allowing all citizens to enjoy the insurance benefits generally. In light of such purport, health care benefits provided through the national health insurance is difficult to deviate from the permissible limit of the insurance finance.

In the adjudication on constitutional complaint seeking confirmation of the unconstitutionality of the part restricting medical care benefits in the Health Insurance Act and its relative value points, the Defendant asserts that “in the event that health insurance benefits are determined based only on medical feasibility, the basis for existence of the national health insurance system itself may be endangered due to excessive and excessive expenses.” The State is obligated to protect the health of the people, but it is inevitable to determine the level of insurance benefits in line with the financial status of the national health insurance (see Constitutional Court Order 2006Hun-Ma417, Aug. 30, 2007).” The limitation of health care benefits is recognized only limited to medical care benefits permitted within the scope of the insurance financing limited under the detailed criteria and methods for the application of health care benefits. If a patient wants to receive the best treatment beyond the basic medical care benefits provided as health care benefits and the treatment cannot be provided in the national health insurance for the sake of the limitation of the insurance finance, it goes against the purport of the former National Health Insurance Act to restrict the patient’s opportunity to receive such medical care under the national health insurance law.

In light of the nature of national health insurance, the purport of the former National Health Insurance Act, and subordinate statutes that restrict citizens’ rights without delegation of superior statutes or beyond the scope of delegation, and the determination of whether subordinate statutes are null and void and are in excess of the scope of delegation of superior statutes ought to be made by comprehensively taking account of the entire structure and purport of the statutes, the delegation provisions, and the form and content of delegation provisions, etc., Article 39(3) of the former National Health Insurance Act cannot be deemed as a provision that uniformly delegates the scope of private medical treatment contracts. In determining the standards for medical care benefits, it shall be deemed that Article 39(3) of the former National Health Insurance Act provides for clear matters that are not consistent with the nature of social insurance, thereby granting discretion to establish legal stability. The National Health Insurance Act does not provide for the law to regulate matters necessary for the operation of the national health system, nor does it provide for the purpose of

(2) Article 9 [Attachment 2] of the former Regulations on the Standards for Medical Care Benefits lists non-benefit items. If it is interpreted as a limited list, the patient’s provision that restricts the patient from receiving the best treatment through a private medical contract, thereby deviating from the scope of delegation by the mother law. The procedure for filing an application for determination of whether a new medical care benefit act, medicine, and material for medical treatment as provided in Article 10 of the former Regulations on the Standards for Medical Care Benefits is not included in the standards for medical care benefits for economic reasons, and the procedure for adjustment of the relative value, etc. as provided in Article 12 is not applicable in cases where an existing medical care benefit is not included in the standards for medical care benefits for economic reasons. Moreover, even if an application for adjustment is accepted and announced after the receipt of the application for adjustment, it is not possible to guarantee the best treatment procedure desired by the patient.

Therefore, Article 9 [Attachment 2] of the former Regulations on the Standards for Medical Care Benefits lists non-benefits as an example, and Article 8 of the same Rules should be interpreted to be determined by Article 5 and the detailed provisions on the standards and methods for the application of medical care benefits.

(3) In order for administrative agencies to limit citizens’ rights, there must be legal grounds.

Article 52(1) and (4) and Article 85(1)1 of the former National Health Insurance Act provide that “When a medical care institution receives medical care benefit costs from a policyholder, etc. or causes a policyholder, etc. to bear them by deceit or other improper means, the medical care institution may recover them unjustly or order suspension of business.” However, in this context, the term “medical care benefit cost” refers to the cost determined by a contract between the president of the National Health Insurance Corporation and the person representing the medical industry as the price for the benefit when the medical care benefit was provided by national health

Therefore, it is difficult to interpret that the medical expenses for non-legal benefits include the medical expenses for non-legal benefits in the “medical benefits cost” as included in the “medical benefits cost” as it is nothing more than that of restricting the people’s rights without any legal basis.

Meanwhile, the latter part of Article 22(2) of the former Enforcement Decree of the National Health Insurance Act provides that a medical care institution shall not claim expenses under the name of the subscriber, etc. other than the medical care benefit amount or non-medical care benefit amount prescribed by the Ordinance of the Ministry of Health and Welfare when it receives the expenses to be borne by the subscriber, etc. among the medical care benefit amount. However, Article 41 of the former National Health Insurance Act, which is the delegation basis provision under the above provision, provides that “the recipient of medical care benefits shall bear part of the expenses under the conditions as prescribed by the Presidential

(4) In light of the reality that it is difficult to say that a medical care institution or a medical person has reached an overall trust level, there may be concerns over excessive medical treatment due to non-benefit medical treatment under a private medical contract. However, Article 53 of the former Medical Service Act does not completely exclude from administrative regulation. Article 53 of the former Medical Service Act provides that the Minister of Health and Welfare may suspend the license qualification within one year when a medical person engages in an act that seriously undermines the dignity of a medical person. The Minister of Health and Welfare, upon delegation of Article 21(1)1 and 4 of the former Enforcement Decree of the Medical Service Act (wholly amended by Presidential Decree No. 20292, Sept. 28, 2007), which provides that the medical care institution subject to examination or treatment should clearly regulate the medical care benefit subject to examination and treatment without any academic recognition, such as unnecessary examination, surgery, or unreasonable request for medical treatment expenses, and thus, it is necessary for the Ministry of Health and Welfare to stipulate the relevant medical care benefit subject to examination or treatment as an inappropriate regulation.

A medical person is obligated to assist a patient in choosing an appropriate method of medical treatment by sufficiently explaining the advantages and disadvantages of a number of methods of medical treatment as an incidental duty under a medical treatment contract. Even in cases where a patient selects a non-paid medical treatment outside of the medical care standard through such explanation, it is clear and concrete that the patient or his/her family member received medical treatment at his/her own expense.

(5) In short, under Articles 52(1) and (4), and 85(1)1 and (2), etc. of the former National Health Insurance Act with respect to health care benefit costs incurred within the framework of the national health insurance system, regulating non-paid medical expenses pursuant to the relevant statutes, such as Article 53(1)1 and (2) of the former Medical Service Act, and Article 21(1)1 and 4 of the former Enforcement Decree of the Medical Service Act, should be deemed as the system of the current Act. The patient’s expectation and demand that the patient be provided with best medical treatment with medical justification, the uniform restriction in the area of private health contracts that are irrelevant to the financial limit of the national health insurance, is also not desirable in terms of sound operation of the national health system, or improvement of the level of health care.

B. The lower court fully revoked each of the instant dispositions by the Defendants, on the grounds that the Defendants’ disposition to collect unjust enrichment of this case and the disposition imposing penalty surcharges are unlawful and that the amount of the unjust enrichment can not be calculated solely on the result of examination of evidence, on the grounds that the Defendants’ disposition to collect unjust enrichment of this case and the disposition to collect unjust enrichment of this case cannot be calculated on the grounds that the Plaintiff hospital’s non-legal treatment charges were collected separately in violation of medical care benefit standards

Although the lower court erred by deeming that the medical expenses for non-paid benefits constitute medical care benefit costs, each of the above dispositions should be revoked as unlawful, in that the medical expenses for non-paid benefits are not subject to the regulation under Articles 52 and 85 of the former National Health Insurance Act, and the conclusion of the lower court that made such determination is justifiable. Accordingly, contrary to the Majority Opinion, I express my dissent from the Dissenting Opinion that the appeal on the remainder of the Defendant National Health Insurance Corporation’s appeal other than the part

Justices Yang Sung-tae (Presiding Justice)